Medical Expert Depositions in Workers' Comp Cases

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1 Presenting a live 90-minute webinar with interactive Q&A Medical Expert Depositions in Workers' Comp Cases Effective Techniques for Deposing Experts and Raising Strategic Objections TUESDAY, MARCH 11, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Scott W. Gedeon, Attorney, Ross, Brittain & Schonberg Co., L.P.A., Cleveland Alex Berman, Founding Partner, Law Offices of Alex Berman, Farmington Hills, Mich. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Workers Compensation Expert Depositions March 11, 2014 Presented by Scott W. Gedeon, Esq.

6 I. Why Take the Deposition? A. Questionable Competency - Background, credentials, experience not appropriate for case - Not a specialist in relevant area (i.e. not board-certified) 6

7 B. Basis of Opinion Flawed - Failure to review records - Incomplete/inaccurate medical history - Facts/history not known to doctor (i.e. mechanism of injury/nature of occupational environment) 7

8 C. Bias - Relationship with Attorney/Law Firm - Relationship with Referring Doctor - Relationship with the Plaintiff (i.e. previously testified in a personal injury case for the Plaintiff) 8

9 II. Preparation for the Deposition A. Review of Medical Records - The key is to have all relevant records and to be familiar with their content 9

10 B. Review of Prior Depositions - Prior deposition testimony may reveal key insights to the doctor s practice and the formation of his/her medical opinions 10

11 C. Review of Expert Report - The critical consideration is the basis of the opinion including history, physical examination, and and record review 11

12 III. Taking and Defending the Deposition A. Examination of the Doctor - Outline proposed topics of questioning - Competency/Background - Opinion - Basis of Opinion - Credibility/Bias - Important point is to finish strong 12

13 B. Objections - Be careful. The jury could be watching you - Know when objections are appropriate - Testifying outside the four corners of the report - Relying on hearsay - Relying on facts not in the record - Use of continuing objections 13

14 C. Exhibits - Be selective and use the exhibits to tell a story - Use important documents such as MRIs, x-rays, emergency room reports and specialists consultation reports - Exhibits should be selected because of their impact - All exhibits should be used in good faith as selective use of exhibits could backfire 14

15 IV. Post-Deposition Strategies - Mediation - Trial - Cross-examination and impeachment of opposing party s medical expert - Trial Deposition - In jurisdictions like Ohio, a videotape deposition is utilized for most medical expert testimony at trial 15

16 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

17 Local IME Doctor 1 Year 1258 Examinations All for insurance companies 17

18 I. Determining whether to depose a medical expert using a risk/benefit analysis Why do I want to take this deposition? 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? Treating doctor has more credibility but is a loose cannon Plaintiff IME has less risk but will it be as effective 18

19 II. Preparing for the deposition Do your homework. 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. Pre-existing conditions Activity checks and surveillance Contrary medical evidence 19

20 III. Taking and defending medical expert s deposition Make a good record. 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. 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 Ask about number of depositions and for whom 20

21 A. Questioning the witness Come up with a winning theory for your case. 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 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 Negative testimony is not necessarily bad if obviously biased 21

22 B. Raising and defending objections Anticipate common objections. Leading Hearsay Foundation Relevancy Asked and answered Argumentative State of mind of another New territory on re-direct Defend your theory of the case. Have doctor listen to objection for clues on how to answer Have the witness answer regardless of objection 22

23 C. Using exhibits Support and/or oppose testimony with objective testing 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 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 23

24 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 24

25 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 25

26 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 with any questions Alex Berman Law Offices of Alex Berman, P.C. (Michigan Workers Comp Lawyers) 26

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