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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 RobsonForensic.com Trial Reporter / Summer 2009 47


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