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you. Te Library of Medicine at NIH off Wisconsin Avenue in the Bethesda area is a valuable resource. Tey maintain a library of videos, many depicting surgical procedures. Te library will lend its reference books. I defended a case in Montgomery County involving an anal fistula condition. I elected not to call a doctor on behalf of the defendant. I knew, however, that the doctor who wrote the definitive work on the subject taught the plaintiff ’s treating physician and was of the opinion that anal fistulas were not the result of an automobile accident (even a rear end collision as presented in that case). Te witness acknowledged that the author of the work was well qualified, that he studied under him, admired him and that the text was the last word in the field. Te jury rejected that part of the claim, as shown by the award. Consideration should be given to reviewing the issues


presented with other attorneys who have been faced with the same issues and perhaps even the same treating physician as in your case. Troughout my career I have found that this is a valuable tool. What does your analysis show as to the best possible


result you can obtain from the presentation of the doctor’s testimony and your cross examination? Tis ties in with that separate list of points to be made with the reference to source material. In other words, what would you seek to accomplish with a discovery deposition? You would know, for certain, each opinion held by the witness and the bases of each. You do not want to show your hand as to the points you wish to make at trial or a later deposition. It is a discovery deposition after all. To give an example of showing your hand, early in my


career I took the deposition of an orthopaedic surgeon who opined that the plaintiff-patient had a wasting of his lower extremity, following a knee injury. I noted that there was a measurement made above the affected knee but found nothing in the record about a comparative measurement as to the other extremity – important information for the defendant to establish. Nevertheless, the doctor corrected his oversight and made sure that there was such a measurement before his de bene esse deposition was taken. Punctuality being a reliable virtue requiring little real


talent, one should arrive at the deposition early. If this is a video deposition, view the area that will be shown by the


camera. Consider what you do NOT want to be displayed to the jury. Note your objections/concerns before the onset of the deposition with opposing counsel. If no agreement is reached, arrange for a call to the chamber’s judge in the county where your case is pending. Plaintiff ’s doctor may be affable, courteous and even nice,


but remember he is not your friend. Te witness may not have even been a treating or the main treating physician but rather a “hired gun.” Te witness may well be an advocate for his patient. Tis could be used to your advantage if the witness stretches an opinion a bit or more. Take charge of the cross examination and stay in control. Leading questions which give no room for dissertations are an effective tool. You will know the anatomy and be well schooled as to


the mechanics of the injury, the treatment indicated, etc. But, you do not know medicine better than the doctor you are deposing. Te witness is immersed in her chosen field. You should have considered what questions to ask that can be read to the jury during closing argument without succumbing to the urge to “play doctor” yourself. I am of the opinion that the shorter the cross examination the better. Make your points and sit down.


Tis does not mean that you abandon a line of inquiry


which you deem important because the witness refuses to answer the question. Do not relent. Such back and forth may help your cause as the jury will know or at least think that the witness is trying to dodge the answer because the response would “hurt” the plaintiff. I once was in the process of finishing my cross examination


of a noted neurosurgeon who was also an advocate for the plaintiff-patient and for the extended treatment he had recommended. I believed I had him on the ropes and had set up the testimony/opinions of my two medical witnesses when, in sort of a response to what was to be a final question, the witness partially rose from the witness chair, pointed to an area near my feet and said, “Well, Mr. Bowie, if he doesn’t take his Dilantin tonight, he will have a seizure tomorrow.” I do not know what my next several questions were, as I forced myself to remain calm. Te jury ultimately rejected the plaintiff ’s claim of incident- related traumatic epilepsy. On another occasion, an orthopedic surgeon, a well-


known advocate for the injured, testified as to the plaintiff having sustained a permanent injury, when notes in his own file suggested otherwise. I made the points that I wanted to make and then addressed the questionable portion of his direct examination by asking him (really a declarative statement): “Doctor, aren’t you being intellectually dishonest in giving your opinion of permanency?” Plaintiff ’s counsel requested that we go off the record and, following our discussion, the direct testimony as to permanency was redacted as was my last question. A jury verdict for my client followed some time later. I am not an advocate of writing out verbatim


cross examination. Nevertheless, you should have an outline or notes, as to the points you want to make. Tis would include points where your medical witness’ expected testimony/opinions or theory of the case are conceded or acknowledged by the plaintiff’s witness, inconsistencies in


48 Trial Reporter / Summer 2009


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