Defense Medical Examiners Depositions

The Importance and Structure of Depositions

Deposing the defense medical expert is one of the most important things we, as trial lawyers and litigators, do. It can be one of the most valuable ways to improve our case if done correctly. To get what we need, we must go into the deposition with a clear plan and execute it confidently.

First, we need to clarify the doctor’s role in the case. Read their report in the context of our case to make their role as clear as possible. There are three things that defense doctors can say about your client:

1. The Plaintiff had a preexisting condition before the incident, which is the actual cause of the injury.
2. The incident did not cause some or all of Plaintiff’s injuries.
3. There is a cutoff to the damages after the incident, i.e., the “Future Cutoff.”

When we read through the defense doctor’s report, we need to identify how the doctor says these three things and what, if any, evidence the doctor points to. In the deposition, our goal is to make their opinions very clear. We box them into the evidence or lack of evidence they point to for each opinion.

Often, the doctors will have no medical records from before the crash. They only use imaging and medical records from after the crash to say the Plaintiff was already hurt when the crash happened.

At the beginning of the deposition, we need to clarify the doctor's role with our client. We need to explain that there's no doctor-patient relationship. The defense hired the doctor. The court ordered the exam, and it was mandatory. Our client did not get to choose the doctor that examined her for the defense.

Most defense doctors admit they do not intend to diagnose or treat the plaintiff. There is no doctor-patient relationship. If you look up the definition of practicing medicine in your state, it should involve diagnosing and treating a patient. So, the defense doctor is not practicing medicine when they claim the plaintiff is not hurt.

Finding Agreement and Establishing Bias

We want to concede what we can. Find some agreements with the doctor. For example, when they claim your client has degenerative changes on his MRI, just agree.

Q. Doctor, you say in your report that the Plaintiff had degenerative changes on his MRI from before this crash, right?

A. Yes.

Q. Isn’t it true that “degenerative changes” means “natural aging”?

A. Yes.

Q. So what you’re saying here is that the Plaintiff was a normal, healthy 55-year-old male at this crash?

A. Well, yes.

During the deposition, write down what you agree on and don't agree on.

“Degenerative Changes = Plaintiff was a normal healthy 55-year-old before the crash.”

Medicine mystifies some people. Writing down what the defense doctor says in simple terms can clarify the testimony for the Jury. Trial lawyers think the jury is paying attention to everything. They believe the jury cannot misunderstand the testimony. I've done enough focus groups to know that the jury can misunderstand anything.

Writing down important things in the case in simple, short statements can help. And if done in a deposition, the statements can be used as exhibits or impeachment at trial.

If they agree they’re not practicing medicine, write “Practicing Medicine” and put an X through it.

Always establish bias at the beginning of the deposition. Establish that they knew they were working for the defense. The defense wanted him to say the Plaintiff wasn’t hurt. How much is he getting paid? How often does he work for the defense when he’s not practicing medicine in litigation?

We want the Jury to be skeptical of the Doctor from the beginning. We want them to understand the bias. It provides context for everything else from that doctor's mouth afterwards. Don't wait until the end to establish the bias. By then, the jury may have found some of what he's saying to be making sense.

Show the difference between what the doctor did in this case and what he does when treating patients. Ask the doctor about his routine for treating patients, such as verbal history and physical exams. Then, establish the difference.

Q. You’ve never spoken to the Plaintiff, have you?

A. No.

Q. You’ve never performed a physical exam on the Plaintiff, right?

A. Correct.

Show the Defense Doctor’s ignorance of important facts. And blame the defense for that ignorance.

Q. You’ve never seen the MRI images on this case, have you?

A. No.

Q. You relied solely on the Defense for what documents you reviewed in this case, right?

A. Correct.

Don't argue with them about medicine, even if you have a medical background. In the deposition, our goal is to clarify their opinions and the basis for those opinions.

Q. Doctor, are you saying that the pain started right after the crash, but the crash did not cause the pain?

A. Yes.

Eliciting the Doctor’s Opinion

Exhaust their knowledge. Get all of the reasons why they say what they say. And have them commit that there is nothing else that they’ve seen.

Q. Are you saying that the reason you think this person was hurt before this crash and that this crash did not cause any injuries is because they had degenerative disc disease on the MRI taken after the crash?

A. Yes.

Q. And you don't have any medical records whatsoever from before the crash that show that this person had any pain in this part of their body in their neck before this crash, correct?

A. Yes.

Q. Are you sure?

A. Yes.

When we do this, the doctor cannot say something different later unless he gets new information and records. They're boxed in. You've exhausted all the reasons for why they say what they say.

One of the biggest lessons I've learned through my career is to stop arguing with the witnesses in depositions. Elicit their opinions and reasons for them, then leave it alone. Once we start arguing with these experts, they will throw out a bunch of fancy words and talk in circles to confuse everybody. When a medical doctor talks in circles, it sounds like a professor. Some people on the jury may accept what they're saying as true even if it doesn't make any sense.

The time to argue is at trial or when your doctor is on the stand:

Q. Doctor, the defense is saying that the Plaintiff wasn’t hurt in this crash because he has degenerative changes on their MRI, is that true?

A. No. That makes no sense in medicine. There are no medical records of any kind from before this crash that show the Plaintiff had these injuries in this part of their body. This crash caused these injuries.

The Benefits of This Method

The other benefit of taking depositions this way is that it's much easier on us.

I often imagine jurors as parents of bickering children. I imagine a father who hears two children arguing in the next room. He yells, “Get in here!” The two children come in, and he says, “What’s going on there?” One of the children says, “Johnny hit me.” And the other kid says, “Johnny, hit me first.” And they both start arguing and getting angry.

What does the father do? He says, “Both of you go to your rooms. You're no longer playing with each other for the rest of the day.” He punishes both of them.

Now imagine the first kid says, “Johnny took my truck!” And Johnny calmly says, “I took his truck because he was hitting me with it.”

Now, who does the father punish? The kid who hit the other one with the truck.

Our demeanor when we're presenting our case matters. And that starts in depositions. The more we argue and get frustrated, the less persuasive our case looks to a jury. Calmly elicit information out of the defense. Get all of their reasons for saying our client is not hurt.

Get it all out on the table. Exhaust their information. Exhaust their reasons. Box them in for trial.

The last question is to ensure they’ve given all their opinions and bases for those options.

Q. Doctor, have I allowed you to give your opinions today?

A. Yes.

Q. Have you actually given us those opinions?

A. Yes.

Q. Have I allowed you to give your basis for your opinions?

A. Yes.

Q. And have you actually given us the basis for your opinions in this case?

A. Yes.

Pass the witness confidently, knowing you've done your job in the deposition.

A Powerful Weapon When Used Correctly

Sometimes, the doctor surprises you by wanting to give you more opinions. Calmly exhaust those opinions and find the basis for those opinions. You're done when you've obtained everything they say and why they will say it in the deposition record.

Taking the defense medical doctor’s deposition is a powerful weapon for plaintiff’s lawyers. With practice you will get better at asking questions, framing the issues, and identifying the weaknesses in their arguments.

You will settle more cases for more money. And you will be prepared for trial, if the defense refuses to be responsible for what they did.