Michigan Workers Compensation Lawyers

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Being injured on the job can turn your life upside down, especially when your workers comp benefits are denied. Our lawyers can help you. We’re here to make sure that you receive all the workers compensation benefits that you’re entitled to, and to protect you when your insurance company or your employer treats you unfairly.

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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
http://www.workerscomplawyerhelp.com

Local IME Doctor
1 Year
1258 Examinations
All for insurance companies

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

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

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

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

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

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

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

● 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

“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
[email protected]
Alex Berman
Law Offices of Alex Berman, P.C.
(Michigan Workers Comp Lawyers)
http://www.workerscomplawyerhelp.com

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