Damian Martinez Reins in Expert Witness on Cross-Exam, En Route to Winning Defense Verdict in $18M Trial

It’s a cardinal rule of cross-examination: hold your witness to yes or no questions while working to undermine their testimony. And in a trial over a deadly case of hepatitis allegedly caused by contaminated food, Damian Martinez used that rule to powerful effect in helping secure a defense win.

The children of 89-year-old Virginia Jolson sued berry-blend maker Townsend Farms Inc. and pomegranate supplier Goknur, among others, claiming Jolson died from hepatitis A she contracted from a frozen berry blend made by Townsend and sold at a local Costco.

The FDA had concluded more than 165 people had developed hepatitis A from contaminated fruit in the blend; however, the defense argued Jolson suffered from a different form of hepatitis than the strain associated with the blend, and contended there was no evidence Jolson actually bought or ate the contaminated berries.  

Food science expert Fadi Aramouni, served as a key witness for the plaintiff, detailing his opinion on the severity of the contamination and the subsequent recall.

During cross-examination, however, LTL Attorneys’ Martinez, representing Goknur, grilled Aramouni on the specifics of the case, highlighting the fact that any knowledge he had was general and did not center on Jolson’s circumstances.

“Are you aware that the two eyewitnesses who saw the blend in [Jolson’s] refrigerator, one of them, did not tell health officials weeks later that she had observed the blend in Ms. Jolson’s refrigerator?” Martinez asked.

“I am not aware of any of these details,” Aramouni answered. The response was the same for several questions centered around details of Jolson’s case, emphasizing Aramouni could not link the circumstances surrounding Jolson’s hepatitis to the contaminated berry blend.

But more than simply showing Aramouni’s lack of knowledge surrounding the case’s specifics, the phrasing of Martinez’s questions served to reinforce a key leg of the defense: that there was connection between the contaminated product and Jolson.  Time and again in his questions, Martinez hammered home key facts he wanted the jury to remember: among them, that any berry blend Jolson ate was never tested and that Jolson developed hepatitis one month before the first case the government definitively tied to the contaminated blend.

Martinez then used his cross-exam to undercut Aramouni’s knowledge of FDA investigation procedures, asking Aramouni if he had visited FDA facilities in connection with the investigation and grilling Aramouni on what information the FDA would receive in a similar hypothetical investigation.

Despite Martinez’s phrasing of each question to elicit a yes or no response, Aramouni became reluctant to limit his answers, looking to expound, particularly on hypotheticals Martinez raised.

But when Aramouni moved beyond a short answer, Martinez would cut him off, moving to the next question. Eventually Judge John Wiley began to intercede, admonishing Aramouni to limit his responses.

In fact Wiley interceded at least three times, explaining to Aramouni that he could answer yes or no on cross exam.

“I understand that, but some answers cannot be yes or no,” Aramouni responded, apparently frustrated. “Some questions are so hypothetical that they don’t have yes or no answers.”

 “The third proper response is “I don’t know” or “I can’t answer,” Judge Wiley replied.

Despite that admonition, Aramouni moments later found himself unwilling to restrict himself to a yes or no answer. As Judge Wiley admonished him yet again, Aramouni said “I understand and it’s a hypothetical Sir, so I—“

“I’m sorry!” Judge Wiley interrupted, explaining yet again that the answers on cross were to be limited.

The cross-exam likely undermined Aramouni’s credibility on knowledge related to FDA investigations and procedures surrounding the investigation and painted him as a witness who knew nothing of the specifics of the case.

In his closing argument, Martinez reminded jurors of the exchange, using it to broadly attack Aramouni’s conclusions. Regarding the back-and-forth on questioning on FDA hypothetical investigations, “Dr. Aramouni fought me and [said things like] ‘It depends,’ and Judge Wiley had to intercede a little bit, and finally he said ‘I don’t know,’” Martinez told the jury. “He doesn’t know. We know the FDA did an investigation… If he doesn’t know this then why is he even qualified to be here?…. He offers you junk science.”

Jurors cleared both Townsend and Goknur in a case where the plaintiffs sought $18 million.