Being injured on the job can turn your life upside down, especially when your workers comp benefits are denied. Our lawyers can help you. We’re here to make sure that you receive all the workers compensation benefits that you’re entitled to, and to protect you when your insurance company or your employer treats you unfairly.
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Michigan Workers Compensation Lawyers
1. 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
http://www.workerscomplawyerhelp.com
3. 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
I. Determining whether to depose a medical
expert using a risk/benefit analysis
4. 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
II. Preparing for the deposition
5. 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
III. Taking and defending medical expert’s
deposition
6. 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
7. 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
8. 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
9. • 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
IV. Post-deposition strategies - using
deposition information
10. ● 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
11. “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 e-mail with any questions
1-800-573-5800
abermanpc@yahoo.com
Alex Berman
Law Offices of Alex Berman, P.C.
(Michigan Workers Comp Lawyers)
http://www.workerscomplawyerhelp.com