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?
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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?
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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.
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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.
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Pre-existing conditions
Activity checks and surveillance
Contrary medical evidence
III. Taking and defending medical expert’s
deposition
Make a good record.
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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.
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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.
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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
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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.
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Leading
Hearsay
Foundation
Relevancy
Asked and answered
Argumentative
State of mind of another
New territory on re-direct
Defend your theory of the case.
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Have doctor listen to objection for clues on how to answer
C. Using exhibits
Support and/or oppose testimony with objective testing
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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
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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