The Ins and Outs of Written Discovery and Motion Practice:

The Ins and Outs of Written Discovery and Motion Practice: An Outline to the Power Point Presentation Brynda Rodriguez Insley, Esq. Sharonda Boyce, Esq. Insley and Race, LLC 181 14 th Street NE, Suite 200 Atlanta, GA 30309 (404) 876-9818 (404) 876-9817 (fax) www.insleyrace.com

Brynda Rodriguez Insley is a principal in the Atlanta law firm of Insley and Race LLC. She specializes in insurance defense litigation, with an emphasis in medical, hospital, and nursing home malpractice liability and medical device defense. Prior to starting the firm in 1998, Ms. Insley practiced law with a well-known insurance defense law firm in Atlanta for 12 years. She is a member of DRI s Drug and Medical Device Committee.

The Ins and Outs of Written Discovery and Motion Practice: An Outline to the Power Point Presentation Table of Contents I. Introduction...73 II. Getting the Most Out of Written Discovery...73 III. Hip and Happening Discovery to Propound...73 IV. To Move or Not to Move. That Is the Question...73 V. Choosing the Right Type of Jury Verdict Form...74 A. General Verdict Form...74 B. Apportionment Verdict Form...74 C. Special Verdict Form...74 VI. Conclusion...74 Exhibit A...75 The Ins and Outs of Written Discovery and Motion Practice... Insley and Boyce 71

The Ins and Outs of Written Discovery and Motion Practice: An Outline to the Power Point Presentation I. Introduction While the defense of a long-term healthcare or assisted living facility is very similar to the defense of any other professional malpractice litigation, there are additional considerations that defense counsel should keep in mind, specifically with regard to discovery and motion practice. The goal behind this article, and the accompanying power point presentation, is to provide guidance to defense attorneys who must navigate their way through the quicksand of voluminous witnesses and documents particular to long-term healthcare or assisted living facility cases. By mastering the art of discovery and motion practice, defense counsel will maximize their opportunity to successfully defend against the aggressive discovery tactics employed by plaintiffs counsel; and yes, every so often, advance the strength of their own case. II. Getting the Most Out of Written Discovery Written discovery is often treated as an initial means to gain basic information regarding a party and their alleged claims and defenses. Defense counsel should aggressively approach the written discovery phase, and specifically tailor their written discovery to plaintiff to elicit every scrap of factual evidence in support of a plaintiff s claims in order to debunk what is often a smoke and mirrors case by clever plaintiff s counsel. At a minimum, defense counsel should identify the key factual basis of the plaintiff s claim and be prepared to defend against it at trial. Of equal significance, defense counsel should be prepared to trim the plaintiff s case down to the salient facts (not just superfluous innuendo), which is often necessary to convince a trial judge that the plaintiff s allegations and discovery tactics are nothing short of a fishing expedition, thereby obtaining favorable rulings limiting plaintiff s discovery net. This same factual evidence and legal argument can be offered in support of the defenses case at trial, again enhancing the greatest opportunity of narrowing the plaintiff s case to the facts and not wild, baseless conclusions. III. Hip and Happening Discovery to Propound Every successful defense is the result of an aggressive offense. And, there is no better place to start than with the pre-suit evidence. See Exhibit A. Then, you need to attack the Complaint and force the Plaintiff to play his or her cards by stating the factual basis of the allegations. IV. To Move or Not to Move. That Is the Question Generally speaking, motion practice should be used only as a last resort. In other words, try to resolve all discovery disputes between the parties, and leave the Judge out of it unless it is absolutely necessary. The most likely motions to be pursued by the parties include the following: motion to dismiss for lack of the prerequisite expert affidavit; motion to specify allegations of fraud; motion for spoliation and sanctions; motion to compel; motion for protective order; motion to dismiss/for summary judgment; and motion to The Ins and Outs of Written Discovery and Motion Practice... Insley and Boyce 73

extend discovery. Although not generally an issue until trial, defense counsel should also thoroughly research and prepare as many motions in limine as necessary to exclude the irrelevant and prejudicial evidence which every plaintiff s counsel attempts to introduce at trial: prior incidents or lawsuits; inflammatory photographs; irrelevant record alterations; regulatory violations/fines; Day-In-The-Life video; and redundant witness testimony from disgruntled, former employees. V. Choosing the Right Type of Jury Verdict Form Defense counsel should be wary in approaching jury verdict forms in a mundane or formulaic way. The design of the verdict form can be just as important as the defense presentation in influencing the outcome of the trial and the likelihood of success on appeal. Most significantly, the verdict form should be tailored to the salient evidence that was admitted as the result of defense counsel s excellent discovery and motion practice! A. General Verdict Form A general verdict form requires the jury to apply the law to the facts and to find for either the plaintiff or the defendant. For example, a general verdict form would state as follows: We, the Jury, find in favor of the Plaintiff, and against Defendant in the amount of: A. Estate Claim B. Wrongful Death Claim OR We, the Jury, find in favor of Defendant. B. Apportionment Verdict Form In some jurisdictions, juries are allowed to apportion fault between each defendant and to a nonparty. You should research and become well versed on how your state handles apportionment, as this can be a way to minimize the exposure of your individual client. C. Special Verdict Form A special verdict form requires the jury to either answer interrogatories or make written findings on issues of fact and nothing more. The court then applies the law to the jury s findings to determine the prevailing party. By determining what type of verdict form best serves the client s interests, defense counsel can increase their chances of shaping the outcome of the case. In long-term healthcare or assisted living facility cases, a special verdict form may assist in tailoring the issues for the jury and may decrease the likelihood of jury consensus. The use of special verdict forms often reduces the chance that an appellate court will vacate and remand the verdict reached. Whether to opt for the general verdict form or the special verdict form depends again on case-specific factors, and the decision should not be taken lightly. VI. Conclusion Discovery and motion practice in long-term healthcare or assisted living facility cases can be extensive and time-consuming. By utilizing the tips and suggestions contained herein and the accompanying power point presentation, you will not only be able to anticipate the plaintiffs tactics and contain the Plaintiff s case; but, you will also increase your chances of successfully defending your case. 74 Nursing Home/ALF Litigation September 2014

Exhibit A Examples of RPDs 1. Please produce a complete and accurate copy of any and all medical/health care records, insurance records, billing/financial records, reports, or other documents or tangible thing of any kind which you obtained from the Defendant, or any employee or agent, of the Defendant at any time regarding the Plaintiff. 2. Please produce a complete and accurate copy of any and all medical/health care records, insurance records, billing/financial records, reports, or other documents or tangible thing of any kind which you obtained from any source at any time regarding the Plaintiff. Examples of Interrogatories 3. Please identify any and all medical/health care records, insurance records, billing/financial records, reports, or other documents or tangible thing of any kind which you obtained from the Defendant, or any employee or agent, of the Defendant at any time regarding the Plaintiff. 4. Please identify any and all medical/health care records, insurance records, billing/financial records, reports, or other documents or tangible thing of any kind which you obtained from any source at any time regarding the Plaintiff. 5. Does Plaintiff contend or have any reason to believe or suspect at this time that any of decedent s medical records from any healthcare provider, including Defendant, who treated Plaintiff in connection with the facts forming the basis of this lawsuit have been in any manner changed, modified, or altered? If so, please identify specifically the medical entry in question, how the entry was allegedly altered, who allegedly made the alteration, and when the alteration was allegedly made. Please also identify any documentation allegedly supporting this contention. 6. Does Plaintiff contend or have any reason to believe or suspect at this time that any of the Defendant s employees, agents or independent contractors, or persons listed in any of the Plaintiff s healthcare records, in any manner changed, modified, or altered the Plaintiff s healthcare records? If so, please identify specifically the individual by name, the health care record that was allegedly changed, modified, or altered by the individual, how the entry was allegedly changed, modified, or altered, and when. Please also identify any documentation allegedly supporting this contention. 7. Please state specifically the factual basis on which you have personal knowledge regarding the allegations that Respondent was negligent in its alleged treatment and care of Claimant s decedent (see Count I for alleged Professional Negligence at Paragraphs 42 through 56 of the Complaint; Count II for alleged Violations of the Bill of Rights at Paragraph 57 through 64, Count II for alleged Violations of Georgia and Federal Regulations at Paragraph 65 through 75; Count IV for alleged Negligence Per Se at Paragraphs 76 through 82; Count V for Ordinary Negligence at Paragraphs 83 through 91; Count VI for alleged Breach of Contract at Paragraphs 92 through 97). If you contend that any document or record reflecting the services provided by the Defendant is evidence of such professional negligence, please identify: a) the generator/author of the record in general; b) the date and maker of the entry; c) the substance of the entry; and d) the specification of negligence against the Defendant to which you contend the entry relates. 8. State whether you or your attorneys have any electronic recordings of any kind whatsoever of the voice of any purported agents or employees of the Defendant. If the answer is in the affirma- The Ins and Outs of Written Discovery and Motion Practice... Insley and Boyce 75

tive, please describe the type of audio recording, what it contains and state the name and address of the person or persons who made such recordings and who now have possession or custody of the original or any copies. If the answer is in the negative, have you requested anyone to provide you with such a recording, to make such a recording or hold same in their possession? If the answer is in the affirmative to any of these questions, please describe the type of audio recording, what it contains and state the name and address of the person or persons who made such recordings and who now have possession or custody of the original or any copies. 76 Nursing Home/ALF Litigation September 2014