This page contains a Flash digital edition of a book.
Deposing the Plaintiff's

Medical Expert Charles C. Bowie

Tis article is addressed to young defense lawyers. Young (and old) plaintiffs’ lawyers are well advised to understand how defense counsel approaches the deposition of an expert witness. In the mentoring of younger attorneys, I always use the expression “Know Your Case.” I give emphasis to the necessity of knowing all aspects of the case presented. Tis axiom pertains to the examination of an expert witness at trial or in a deposition. Te medical aspects are critical to any personal injury case.

Even when liability “is not seriously in dispute,” points made in the cross examination of plaintiffs’ medical expert may spill over and result in the presumably unexpected defendant’s verdict. Defense counsel is therefore charged with the responsibility

of knowing not only how the facts of the accident, which is alleged to have produced injury, but also the mechanism of the accident, as it affected the plaintiff. Well in advance of noting any expert witness’s deposition, counsel should have garnered and digested reports and records sent by opposing counsel in response to a well-formatted request for production. Tese should be supplemented by documents obtained pursuant to records depositions. Counsel should also have in hand Plaintiff ’s answers to interrogatories. She will have met with the client. Together counsel and client will have read the police incident report, all witness statements and the ambulance report. Optimally, the plaintiff will have been deposed prior to any experts’ depositions. Te insurance company that referred the case should have done an initial index as to other “accidents” involving the plaintiff and this should be updated around the time of the deposition of the plaintiff. As all this information is considered, ask yourself, “What’s missing?” I am an advocate

of “sub-files,” including separate

sections involving the plaintiff ’s personal information and chronologically organized medical records. Te medical records should be indexed for the easy (and quick) retrieval of information. I suggest this index should include the following relevant information:

1. Date; 2. Health care provider; 3. History obtained; 4. Type of the examination performed; 5. Relevant findings; 6. X-ray findings or other diagnostic tests performed; 7. Te diagnosis made; and, 8. Any treatment rendered and/or suggested.

Having prepared for the deposition in the instant case, counsel should acquaint herself with the deponent. Plaintiff ’s medical expert may well be a “player,” one who has regularly treats persons who are advancing claims for compensation. If so, there likely are transcripts of depositions available given by

that witness, perhaps even involving the same type of injury advanced in your case. Tese should be obtained, read and indexed. With an endless supply of information at our computer

keyboard, the doctor should be “googled,” in order to obtain articles written and other pertinent information. Te expert’s website will add to your arsenal of information. Counsel may arrange for a medical examination of the

plaintiff by a medical expert of his choice or the referring insurance company may have had an examination performed prior to suit. Tere may be a “peer review” by a doctor in the same field as the treating doctor. All this information is fodder for cross. You should consider conferring with that physician to

further prepare for the deposition, particularly if there is evidence of malingering or some other proverbial “red flag.” If you have determined not to have an examination of the plaintiff, you still may want to arrange for a conference with the appropriate doctor. Before you meet, however, make sure that you are sufficiently conversant with the case and the medical issues involved. Know where you think you want to end up and what questions to ask your doctor. Outside research may be indispensable to the deposition of the opponent’s expert. Learned treatises may be identified by your expert. He may even lend his reference materials to

“The key to longevity is to keep doing

what you do better than anyone else.” Ralph Lauren

20 years. 150 experts. 30,000 cases. Qualified and experienced.

800.813.6736 Trial Reporter / Summer 2009 47

Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68