Medical Expert Depositions in Workers' Comp...

Medical Expert Depositions in Workers' Comp Cases Effective Techniques for Deposing Experts and Raising Strategic Objections

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TUESDAY, MARCH 11, 2014

Presenting a live 90-minute webinar with interactive Q&A

Scott W. Gedeon, Attorney, Ross, Brittain & Schonberg Co., L.P.A., Cleveland

Alex Berman, Founding Partner, Law Offices of Alex Berman, Farmington Hills, Mich.

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Workers’ Compensation Expert Depositions

March 11, 2014

Presented by Scott W. Gedeon, Esq.

sgedeon@rbslaw.com

I. Why Take the Deposition?

A. Questionable Competency - Background, credentials, experience not appropriate for case - Not a specialist in relevant area (i.e. not board-certified)

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B. Basis of Opinion Flawed - Failure to review records - Incomplete/inaccurate medical history - Facts/history not known to doctor (i.e. mechanism of injury/nature of occupational environment)

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C. Bias - Relationship with Attorney/Law Firm - Relationship with Referring Doctor - Relationship with the Plaintiff (i.e. previously testified in a personal injury case for the Plaintiff)

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II. Preparation for the Deposition

A. Review of Medical Records - The key is to have all relevant records and to be familiar with their content

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B. Review of Prior Depositions - Prior deposition testimony may reveal key insights to the doctor’s practice and the formation of his/her medical opinions

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C. Review of Expert Report - The critical consideration is the basis of the opinion including history, physical examination, and and record review

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III. Taking and Defending the Deposition

A. Examination of the Doctor - Outline proposed topics of questioning - Competency/Background - Opinion - Basis of Opinion - Credibility/Bias - Important point is to finish strong 12

B. Objections - Be careful. The jury could be watching you - Know when objections are appropriate - Testifying outside the four corners of the report - Relying on hearsay - Relying on facts not in the record - Use of continuing objections

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C. Exhibits - Be selective and use the exhibits to tell a story

- Use important documents such as MRIs, x-rays, emergency room reports and specialists’ consultation reports - Exhibits should be selected because of their impact - All exhibits should be used in good faith as selective use of exhibits could backfire

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IV. Post-Deposition Strategies

- Mediation - Trial - Cross-examination and impeachment of opposing party’s medical expert - Trial Deposition - In jurisdictions like Ohio, a videotape deposition is utilized for most medical expert testimony at trial

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Medical Expert Depositions in Workers’ Comp Cases

Effective Techniques for Deposing Experts and Raising Strategic Objections

The Plaintiff Side

March 11, 2014 By Alex Berman

abermanesq@aol.com http://www.workerscomplawyerhelp.com

Local IME Doctor

1 Year

1258 Examinations

All for insurance companies

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I. Determining whether to depose a medical expert using a risk/benefit analysis

Why do I want to take this deposition?

• Have you discussed settlement with opposing counsel

• Have you given a demand

• Have you tried informal mediation or facilitation

• Will medical testimony actually improve the case

Who is available to give a deposition?

• Treating doctor has more credibility but is a loose cannon

• Plaintiff IME has less risk but will it be as effective

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II. Preparing for the deposition

Do your homework.

• Have a complete copy of all medical records

• Know the doctor’s file / report better than opposing counsel

• Do Internet research to understand the medical issues

• Know the law - “medically distinguishable”

• Call the doctor ahead of time if possible

• Show up in advance of deposition to discuss testimony

• Don’t be afraid to cancel a deposition

Know what the doctor does not and warn him/her.

• Pre-existing conditions

• Activity checks and surveillance

• Contrary medical evidence

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III. Taking and defending medical expert’s deposition

Make a good record.

• Speak slowly

• Write out difficult names and medical terms for court reporter

• Remain civil and don’t engage in a “food fight”

• Think about your audience and who will be reading this deposition

Understand the doctor’s specialty and qualifications.

• Is this witness a treater or IME doctor

• Is a general surgeon testifying about a spinal surgery

• Use the Internet and listservs to find damaging information

• Review past depositions to look for weaknesses and bias

• Ask about number of depositions and for whom

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A. Questioning the witness

Come up with a winning theory for your case.

• Ask about mechanism of injury as cause

• Ask why this is a disabling medical condition

• What are the current restrictions

• What additional medical treatment will be required

• Don’t ask questions if you do not know the answer

Challenging the IME doctor

• Attempt to get concessions

• Draw testimony out to an illogical conclusion

• Make the witness take a ridiculous position

• Resist the temptation to ask too many questions

• Negative testimony is not necessarily bad if obviously biased

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B. Raising and defending objections

Anticipate common objections.

• Leading

• Hearsay

• Foundation

• Relevancy

• Asked and answered

• Argumentative

• State of mind of another

• New territory on re-direct

Defend your theory of the case.

• Have doctor listen to objection for clues on how to answer

• Have the witness answer regardless of objection

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C. Using exhibits

Support and/or oppose testimony with objective testing

• Use MRI and EMG to support your theory of the case

• Ask if films were actually reviewed

• “Sneak” other records into evidence

Challenge testimony with exhibits

• Don’t let the witness ignore abnormal findings

• Emphasize subjective complaints are consistent with findings

• Use records to show full recovery of any pre-existing conditions

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IV. Post-deposition strategies - using deposition information

• Turn the knife when you get to the parking lot

• Argue strong points to support your position

• Use transcripts during facilitation / mediation

• Obtain an opinion from a vocational rehabilitation counselor

• Get a cost projection of future medical expenses

• Take another doctor’s deposition if necessary

• Save and contribute transcripts to trial lawyers associations

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● Know when you are ahead

● Resist the temptation to ask more questions

● Score points and get out

● Don’t be greedy and try for home run

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“If you have a legal problem, guess how you determine whether or not you need a lawyer. You see a lawyer. Isn't that weird?” - George Carlin

Please call or e-mail with any questions

1-800-573-5800

abermanpc@yahoo.com

Alex Berman

Law Offices of Alex Berman, P.C.

(Michigan Workers Comp Lawyers)

http://www.workerscomplawyerhelp.com

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