Depositions


of defendants and fact witnesses. Since most often plaintiffs’ experts are out of state, your preparation with those experts will generally be by telephone. You should contact the expert and set aside enough time within one week of the deposition to have a comprehensive telephone discussion of the case. Tis can be difficult with some particularly busy physicians. During the conferences, you should ensure that your


Preparing for Plaintiffs’ Expert’s Deposition Te preparation of your expert for deposition is a


critically important part of building a successful medical malpractice case, but is also the part where you often have the least control. In a strong case, some experts can be depended on like clockwork. Your preparation with such experts will generally be to the point and relatively brief. Other experts, particularly those with little or no experience testifying, will take much more time and effort to adequately prepare for deposition. Unless you use an expert because he has written or has particular experience in an area of medicine, try to use experts you have worked with before or who have been recommended to you by your MAJ colleagues. You will be amazed at the help your fellow plaintiffs’ attorneys will provide in recommending expert witnesses. Te very basic goal for your expert witnesses is to establish


a breach in the standard of care, causation and damages. Your preparation of the witness is aimed at establishing first his qualification, then his ability to express the opinions you need. By the time you begin to prepare your expert for deposition, you will have optimally already established the parameters of his testimony by having discussions, first after his initial review, then after he has reviewed the deposition transcripts


30 Trial Reporter / Winter 2011


expert understands your case. Ideally, you should have the expert explain the case to you or co-counsel. Go over the facts of the case in detail. Many experienced experts will construct their own chronology of care to assist them in their testimony. Te expert should list the breaches in the standard of care in concise fashion. If there is any doubt about the expert’s ability to remember each of the breaches in the standard of care at deposition, have him write them down. Make sure the expert is clear on the definition of “standard of care” and “reasonable degree of medical certainty/probability.” Your expert must understand the causal linkage between his standard of care testimony and your client’s damages. Also, your expert must not fall into any “locality rule” traps. Although, technically, there is no locality rule in Maryland, certain language in the Maryland Pattern Jury Instructions has on occasion been used by enterprising defense counsel to make locality rule arguments. In hospital cases, encourage our expert to visit the hospital’s web site to learn the demographics of the institution. Meet with your expert one hour before the deposition to go over the anticipated testimony and deal with any last minute issues.


Preparing for the Deposition of Fact Witnesses Te fact witnesses that may be deposed in a medical


malpractice case include nurses, treating health care providers and family members. Family members are easy. Tey generally want to cooperate and standard deposition preparation will suffice. Treating health care providers can be tricky. You are suing one of their own, perhaps even a colleague they know. Generally, the best you can hope for from most treating health care providers in medical malpractice cases is that they stay neutral. It is rare, indeed, for a treating healthcare provider to offer testimony that affirmatively supports plaintiff ’s case against a local physician. On the other hand, treating health care providers are bound to a great extent by their medical records concerning your client. Often in medical malpractice cases, we see Motions for Limited Protective Orders seeking to allow defense counsel to end run our client’s HIPPA rights and conduct ex parte discussions with the treating health care providers. Such efforts should be opposed vigorously. Local medical communities are defined by the complex and diverse relationships among health care providers. Personal,


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