Embed Size (px)
Citation preview
Medical Expert Depositions in Workers' Comp Cases Effective Techniques for Deposing Experts and Raising Strategic Objections
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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.
Tips for Optimal Quality
Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
FOR LIVE EVENT ONLY
Continuing Education Credits
For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps:
• In the chat box, type (1) your company name and (2) the number of attendees at your location
• Click the SEND button beside the box
If you have purchased Strafford CLE processing services, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form).
You may obtain your CLE form by going to the program page and selecting the appropriate form in the PROGRAM MATERIALS box at the top right corner.
If you'd like to purchase CLE credit processing, it is available for a fee. For additional information about CLE credit processing, go to our website or call us at 1-800-926-7926 ext. 35.
FOR LIVE EVENT ONLY
Program Materials
If you have not printed the conference materials for this program, please complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
Workers’ Compensation Expert Depositions
March 11, 2014
Presented by Scott W. Gedeon, Esq.
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)
6
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)
7
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)
8
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
9
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
10
C. Review of Expert Report - The critical consideration is the basis of the opinion including history, physical examination, and and record review
11
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
13
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
14
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
15
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
[email protected] http://www.workerscomplawyerhelp.com
Local IME Doctor
1 Year
1258 Examinations
All for insurance companies
17
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
18
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
19
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
20
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
21
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
22
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
23
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
24
● 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
25
“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
Alex Berman
Law Offices of Alex Berman, P.C.
(Michigan Workers Comp Lawyers)
http://www.workerscomplawyerhelp.com
26
