Deposing defense medical experts to lock down their opinions

A step-by-step guide to the strategy of deposing the defense medical expert

Stuart Fraenkel
2014 December

When preparing for trial, deposing the defense medical expert is one of the most important discovery tools available to a plaintiff’s lawyer. If taken effectively, the majority of the defense medical case will be revealed and set in stone. Although taking a medical expert’s deposition may at the outset seem somewhat intimidating to some, with preparation and finely tuned and developed goals and strategies, even the most seasoned medical expert’s deposition can be successfully taken. It is also important to note that each case is different and there is no cookie cutter guide to taking a defense medical expert’s deposition. There are, however, certain areas that must be covered in all of these depositions.

Generally, there are four major goals that need to be achieved when taking the defense medical expert’s deposition. It is imperative that you ascertain: (1) who he is and what does he know; (2) what are the doctor’s opinions and the basis for the opinions; (3) what facts and opinions the defense doctor has that help your case; and (4) what the doctor is not going to testify about. However, before you can develop your strategies to achieve these goals, a solid understanding of the relevant facts of your client’s pre-accident medical history, injuries, the mechanism of the injuries, and the applicable medical issues are paramount. A clear understanding and development of these medical issues should be an ongoing process, starting with the new client interview.

Developing a basic understanding

In most personal injury matters, the client will have a discreet number of injuries. Therefore, prior to taking the defense medical expert’s deposition, it is incumbent upon you to ensure that, in addition to having a thorough understanding of the relevant injuries (i.e., the injuries related to the subject incident), you will need to be relatively familiar with and understand the anatomy of the injured area, how this injury can and did occur (biomechanics of injury), how and why this injury can affect the immediate area and/or other areas of the body, and what the short-term and long-term effects of the injury are as well.

Identifying and understanding the anatomy and injury are only part of the picture. To have a complete understanding of the relevant medical issues, you will need to be well versed in the relevant areas of medicine and treatment, as well as the medical billing for past and future treatments.

Obviously, there are very few attorneys who are also medical doctors. In fact, the lack of a medical degree should not be construed as a handicap, but as a gift. The members of your jury will also likely not have a medical degree, and as such, if you can develop a methodology that makes these complex medical issues understandable to you, you stand a much better chance that the jury will understand them as well.

The first place to start, after obtaining your client’s medical history and an initial perspective of his/her injuries, is a very thorough review of all of the relevant medical records. Note well: Do not trust your client’s memory – do your own due diligence when it comes to your client’s medical history. It is critical that your client understand that pre-existing conditions and prior injuries are not necessarily a detriment to the case. However, lying and failing to identify a full and complete medical history can and usually does significantly, if not completely, undermine a case.

There will be no better tool for you than to summarize the data and put the information contained in these medical records in a chronological order and in language that makes sense to you and the jury. Also, pay particular attention to the nurse’s and other operative notes. These documents are often overlooked and often contain gems and, equally important, landmines.

Developing a cheat sheet

This medical records’ review exercise will force you to identify, in chronological order, the injuries and course of treatment. To assist you in this assignment, comprehensive illustrations of the affected areas are a must. These medical illustrations are readily available for free on the Internet and merely a Google search away. Medical dictionaries are also free online and a necessity to ensure that you can appreciate the difference between even the most basic medical concepts, such as anterior and superior, when you are creating your medical cheat sheet.

Now that you know and understand client’s injuries and the course and costs of treatment, the next item on the agenda is to ensure that you have a clear understanding of how your client’s injuries occurred. This exercise will involve a biomechanical analysis. Often, the client’s treating physician can assist with this analysis; however, there are other situations that require the assistance of a biomechanical expert. It is important to note that there is nothing more devastating to a case than learning too late that that the client’s perspective of how the injury occurred is inconsistent with the basic tenants of the biomechanics of injuries. Therefore, the biomechanics of an injury must be developed and understood well before your client testifies.

The next areas to tackle are the diagnosis and prognosis of the treating and/or your expert health-care providers. It is important to have your medical team provide you with the facts that you will need to present a clear assessment of your client’s injuries, the treatment received and needed in the future, and the effects of these injuries, past, present and future. At the same time, before you begin your dialogue with the health-care professionals, it is important that you have a basic understanding of this information. There are countless articles on the Web and medically related Web sites that can assist you with your knowledge quest. Some of this information, especially when it comes from superior sources, such as the Mayo Clinic, etc., can also be used to lead the defense expert in a direction that is beneficial for your case.

Finally, before you get started with the defense doctor’s deposition – it is absolutely imperative that you pull and review all applicable jury instructions and be very familiar with them.

Who is the defense doctor?

If you did your preliminary homework, you likely located the defense medical expert’s C.V., which usually contains basic information about the doctor’s academic history, licenses, certifications, specialties, career, hospital privileges, professional organizations and miscellaneous other information, such as the articles he or she has written. The American Board of Medical Specialties is a good source of information about medical specialties and can assist you in determining whether the defense doctor is board certified and the scope of that certification. (See,

Gathering the basic background information is a start and reviewing this information is absolutely necessary, but this data alone doesn’t tell the full and complete story. Most often, the defense doctor will have an impressive C.V. However impressive the C.V. may be, there are always chinks in the armor or sources of information that can be supportive of your case that can be uncovered, if you take the time to investigate.

One of the best sources of information about a particular defense doctor will come from prior depositions and trial testimony. There is no need to reinvent the wheel, but at the same time, since all cases and all attorneys are different, it is important not to be complacent and adopt wholesale the approach the prior attorney used, or accept the prior depositions or testimony as the truth – the prior testimony may actually not be truthful. Further, prior testimony can also be helpful to develop issues of bias, or to show prior inconsistent testimony.

It is also important to determine whether the doctor was subject to any disciplinary actions, medical malpractice actions, lawsuits or had any complaints about his or her conduct as a doctor. One area of inquiry that is all too often discounted or not researched or requested relates to Medical Review Boards. Although it may seem unlikely that the defense doctor was the subject of a Medical Review Board procedure, many doctors have been the subject of, or have served on review boards. Most often these boards focus on protecting the practices and procedures of doctors and can be used to show inconsistencies or demonstrate a bias.

Further, you should investigate whether the doctor has ever been the subject of any Daubert type challenges, or had any portions of his or her testimony excluded. Much of this information can and should be collected prior to the deposition. A Westlaw or Lexis search is a must. This inquiry should also be supplemented and developed during the deposition to identify other cases that the expert has testified in and for whom, and also to test the doctor’s honesty and credibility.

For example:

“Dr. Schmo, can you please tell the jury the percentage of your medical work, as opposed to legal work?” “About 25 percent of my work is for legal matters.” “What percentage of the legal cases that you work on is for the defense as opposed to the plaintiffs?” “It varies, but on average, about 90 percent of my cases are for the defense.” “Can you tell the jury how many open files that you are currently working on?” “My best estimate would be about 50.” “Can you tell the jury the names of each of the last five cases you worked on for the defense?” “Well, there is the Smith case, the Jones case, the Rogers case, the Garcia case and the Menendez case.” “Who were the defense attorneys that you worked for in those cases?” “They were all being handled by the Dewey, Cheatem and Howe defense firm.” “Can you tell the jury the names of each of the last five cases you worked on for the plaintiff?” “I really cannot remember the names of the cases right now, I would have to check my files.” “Can you name one?” “As I sit here today, no.” “Dr. Schmo, have you ever had any of your testimony struck or limited by a court?” “Yes. I was told that I was not allowed to testify about the biomechanics of an injury.” “What did that case involve?” “The patient claimed that he hurt his neck in an automobile crash.” “You mean in a case very similar to this one, correct?”A. “Yes.”

Additional important areas of inquiry include what professional organizations does the doctor belong to, what journals does the doctor receive and read on a regular basis, what treatises and other materials does the doctor believe are relevant and applicable medical resources, and what areas of practice does the doctor focus on currently.

“I said it, so it must be true”

Many defense medical experts have the tendency to use ipse dixit (an unsupported statement that rests solely on the authority of the individual who makes it) as their weapon of choice. Their self-serving/defense oriented opinions are based upon their background, training and experience, and they rarely, if ever, cite a specific source. Rather, the classic, “all competent doctors in this field are aware of this data,” is sometimes the basis and support for their opinions. Never allow an expert to get away with this type of an explanation – regardless of how many times you have to ask the same question.

One way to effectively deal with the “it is so because I say it is so” situation is to ask the doctor to list every professional journal that he or she is aware of, reviews, respects and/or relies upon which specifically relates to the injury or field of medicine at issue. Additionally, you should be armed with the names of journals and other source materials which support your position and ask, without going into the details of what the publications state, if the doctor believes that the publication in general is a reliable and trustworthy source of information, if the doctor has any criticisms of the publication, etc. It is crucial that you either get the doctor to identify relevant source materials or admit on the record that he or she cannot refer you to any.

Another area of inquiry that can be very beneficial to the plaintiff’s case, especially if the defense doctor is more of a generalist, is to obtain specific details on how many procedures or injuries similar to those of your client that this doctor has treated over each of the last five years. Force the doctor to get into specifics about the numbers of patients and procedures, the dates when they occurred, how the injury occurred and what treatment each of these patients received.

In your attempt to put the doctor on notice that his or her responses relating to his prior treatments of patient better be truthful, advise the doctor prior to this line of questioning that you are going to subpoena records of all similar patients and/or procedures that this doctor performed. In fact, the request for this specific information should be included in the documents request of the notice of deposition. To circumvent a third-party privacy objection, it is beneficial to include in the request a limiting instruction that advises the doctor to redact the names of the patients and any other identification information, such as social security numbers.

By having the request in the notice and request for documents, regardless of whatever objections are raised by defense counsel, not only can it be used at the deposition, but is also a powerful tool at trial to show that the doctor may be less than truthful, or hiding something.

For example:

“Dr. Schmo, if you wanted to learn about a certain procedure or course of treatment that was performed by a doctor in the past, the operative notes, or other medical records would be the best source of information, correct.” “I assume so, yes.” “Do you recall at your deposition last month that you were asked to produce all records of patients who had similar injuries to the plaintiff and the treatment and procedures that you personally performed?” “I am not sure, but I recall that you asked for a number of materials.” “I would like to show you the notice of deposition and request for documents number five, do you recognize this – does this refresh your recollection?” “Yes, I see the request.” “In response to this request, you did not produce a single record, correct.” “Correct.”

Additionally, if the doctor is a generalist, or testifies that he or she does not, or no longer performs these types of surgeries, it is important to get the doctor to admit that he or she refers patients to specialists. This is another tool to undermine the doctor’s credentials and credibility.

For example:

“Dr. Schmo, if a patient comes into your office and has an injury that is beyond your expertise, or requires a procedure that you no longer perform, you send that patient out to a doctor who specializes in that injury, correct?” “Yes, of course.” “In fact, sending that patient to a specialist would be a prudent thing to do, correct?” “I imagine so.” “In fact, you have not performed a shoulder surgery in the past five years, correct?” “I have performed hundreds of shoulder surgeries, but yes, none in the last five years.” “In the last five years, how many shoulder-injury patients have you referred to a specialist for surgery?” “Maybe one or two.” “And you did so because it was the prudent thing to do, correct?” “Yes – of course.” “Can you tell the jury who you sent these one or two patients to see?” “I believe it was Dr. Rockstar – he is at UCLA.” “Dr. Schmo, when is the last time that you performed a repair to a right shoulder, anterior tear of the glenoid labrum?” “It has been a number of years, maybe seven or eight years ago.”

Developing a case for bias

Each case is different and will have unique focuses and issues. However, in many cases, billing practices and procedures are a common area that defense experts like to attack. One way to deal with this issue is to request all documents that relate to the billing practices and procedures and the actual bills that the doctor and/or his medical group have issued to its patients and insurance companies. Again, to circumvent a third-party privacy objection, it is beneficial to include a limiting instruction allowing redaction of any identifying patient information. Also, collecting bills from the hospitals where the doctor has privileges is a ripe source of data that will undoubtedly support your position as to the reasonableness of your client’s charges.

Eliciting information to show bias is an important area of inquiry and can prove to be devastating to the defense doctor during trial. In addition to determining the percentage of time that the doctor testifies on behalf of the defense, it is paramount that you expose the doctor’s income from these activities in comparison to the income that the doctor receives for treating patients. In the records request attached to the notice of the defense doctor’s deposition, ask for the income received from all medical and legal activities performed by the doctor, including, but not limited to, the number of medical and legal activities, and the amount the doctor and/or his or her practice charges and receives for office visits, surgeries, medical records review, legal consultations, physical examinations, depositions, arbitrations, trial and any other medical- or legal-related activities.

During the deposition of the defense medical expert, have the defense doctor break down the number of patients that the doctor sees per day, per week. And then ask the doctor to break down the charges that the doctor and/or his medical facility charges for each of the medical procedures that he or she performs. Then, do the same exercise for the legal side of the doctor’s practice. For some of the defense doctors, the numbers are extraordinary and should cause the jury significant concern about the doctor’s credibility and bias towards who is buttering the doctor’s bread. Asking for the doctor’s accountant’s information is also a ripe area for discovery. This information can be used for a very powerful cross-examination.

For example:

“Dr. Schmo, I have taken the liberty to put on the Elmo an outline of the income that you and/or your medical facility receives on average per year for doing legal-related work. Can you please look at the following and tell me if you disagree with any of the numbers that came directly from your testimony (Have the doctor agree to each item – one at a time). “Correct, Correct ….” “And this $204,000 is in addition to what you charge for your non-legal related work, correct?” “Correct.” “And you testified earlier that approximately 90 percent of your work is for the defense, correct?” “Yes.” “Dr. Schmo, you have been doing this type of legal work for about the last 20 years, correct?” “Yes.” “So if my math is correct, if we limit your legal work to the last six years, you have earned approximately $1,101,600 for doing work for the defense, correct?” “Well that number isn’t exact, there were some years that we did not make as much as others.” “Give or take, in addition to your non-legal medical work income you have made over $1 million over the last six years working for the defense, correct?” “Approximately.”

In developing bias, inquiry about the types of cases that the doctor handles for the defense as opposed to the plaintiffs can also be very instructive. Always ask the doctor to identify each case, with as much detail as possible, that he or she worked on for the plaintiff. Then ask the doctor to identify as many defense cases that he or she can and to specify in detail the injury and other factors at issue. You may discover an interesting pattern that can be used against the defense doctor. Additionally, have the defense doctor identify as many names of defense firms and defense attorneys as possible, including the number of cases worked on for each – and compare that to how many plaintiffs’ attorneys he or she can name.

Although there are many additional case-specific areas that can be discovered when eliciting who the defense doctor is and what the defense doctor knows, one area that absolutely needs to be covered when taking the doctor’s deposition is the identification of all of the materials and information that the doctor has and then determine which of these documents he or she has actually reviewed. Then, isolate which materials and information the doctor did, and also which ones the doctor did not, rely upon in forming the basis for his or her opinions. This can be somewhat tedious, but when handled correctly, the rewards can be fantastic.

For example:

“Dr. Schmo, you understand that this deposition is being taken so that the lawyers, the judge and the jury can learn each of the opinions that you have in this case and the facts and other information that you reviewed and relied upon in forming those opinions, correct?” “Yes, that is my understanding.” “You were given numerous documents and materials by the defense attorney to review to assist you in the formulation of your opinions, correct?” (This is a very important question to ask – in many cases the defendants will not provide the doctor with all of the records and/or the radiological images – which may become a ripe area for cross examination at trial.) “Yes.” “Can you please identify for me each document that you reviewed in preparation for your testimony and opinions which you are going to give today?” “My entire file.” “Are there any documents or other information that is not contained in your file that you reviewed or relied upon in preparation for your testimony and opinions which you are going to give today?” “No.” “Let’s go through each of these documents, one at a time, and identify for me what information you did not rely upon to form the basis of your opinions today – OK?” “Sure.”

After this exercise, you will likely have excluded a fair amount of material in the doctor’s file and will have learned what the defense doctor did not read nor rely upon. After a specific document, such as a deposition is identified as not having been read or relied upon, it is important, to provide ammunition for a potential motion in limine, that you ask the doctor to confirm that the specific document identified as not having been reviewed and/or relied upon has not and will not be used as the basis for any of the expert’s opinions. This exercise is the first cut at excluding information. The next cut comes after the elicitation of the doctor’s opinions and the basis for the opinions.

What are the defense doctor’s opinions?

In general, the defense doctor will use his or her defense medical report as the road map for the opinions that he or she will have at the time of trial. It is critical that you spend a fair amount of time analyzing the report, as well as the tape recording of the examination – it is critical that you ensure the exam is recorded and transcribed – and outline the doctor’s opinions and any factual information that supports these opinions.

Some of the more critical areas to be aware of when eliciting the defense doctor’s opinions are whether the doctor has any opinions and factual support relating to (1) the accident itself, (2) whether the accident was a substantial factor in causing the claimed injuries, (3) the pre-accident medical history and activities of daily living of your client, (4) whether the treatment and costs for the treatment were reasonable, customary and necessary, (5) what are the current effects and consequences of the claimed injuries, (6) whether the claimed injuries are permanent, (7) what are the long-term effects and consequences of the claimed injuries, (8) whether future medical care is required and what is the cost of the future medical care, (9) whether the doctor’s opinions are to a reasonable degree of medical probability (causation/past damages) or certainty (future damages). Once again, it is important to review your applicable jury instructions for this line of inquiry (i.e., CACI 430 & 3903A, 3903C, 3905A).

With these concepts in mind, at the time of the deposition, you need to be painfully methodical when asking the defense doctor to identify his or her opinions and the basis for each one.

For example:

“Dr. Schmo, can you please tell the jury each of the opinions that you are going to offer about Mrs. Wonderful at the time of trial?” “Sure. Blah, blah blah.” “Are these all of the opinions that you intend on offering at the trial?” “Yes.” (Do not continue until you get a yes – do not let the doctor have any wiggle room.) “Doctor, let’s look at each of these opinions one at a time, OK?” “Sure.” “Your first opinion was … blah blah blah, correct?” “Yes.” “Can you please identify for the jury each and every document that you reviewed and relied upon and which supports your first opinion?” “My entire file.”

Q. “Doctor Schmo, we have already identified numerous documents in your file which you testified under oath that you either did not read or rely upon to form the basis of your opinions, do you remember that testimony?” “Yes.” “OK, so can you please identify for the jury each and every document that you reviewed and relied upon and which support your first opinion that … blah, blah, blah.” (Doctor argues, attempts to dodge the question – finally identifies documents.) “Thank you, sir. Now let’s look at the first document you identified and can you tell me what facts in this document support your first opinion that … blah blah blah?” “I would have to reread every page – it is impossible for me to do it here today.” “Dr. Schmo, this is my one opportunity to ask you questions. The judge, jury and I are entitled to know each and every fact that forms the basis of your opinions. Additionally, we are entitled to know where you located these facts that form the basis for your opinions. So once again, can you please identify each fact that is located in this document which supports your first opinion that … blah, blah, blah?” (Doctor argues, attempts to dodge – either identifies the facts or concedes that he will not rely upon the document to form basis of opinions. Make sure you get doctor to concede that there are no additional facts in the documents that he/she is relying upon for the basis of his/her opinions.) (After identifying facts in documents) – “Dr. Schmo, other than the facts that you identified for the jury which are contained in documents, can you please identify every other fact that supports your first opinion that … blah blah blah?” “I also base that opinion on my medical examination and my background, training and experience.” “Dr. Schmo, can you please tell the jury how long this medical examination took?” “The actual physical examination took 20 minutes.” “And the examination was tape recorded by a representative of Mrs. Wonderful, correct?” “That is my understanding.” “Did Mrs. Wonderful candidly answer all of your questions and submit to all of the examinations that you wanted to perform?” “Yes.” “Can you tell the jury each and every fact that you derived from your medical examination which supports your first opinion that … blah, blah, blah?” (Doctor argues, attempts to dodge – finally identifies facts. Make sure you get doctor to explain each fact and procedure and then concede that there are no additional facts from the medical examination that he/she is relying upon for the basis of his/her opinions.) “Dr. Schmo, can you please tell the jury each and every fact from your background, training and experience that supports your first opinion that … blah, blah, blah?” (Doctor argues, attempts to dodge – finally identifies facts. Make sure you get doctor to explain each fact and then concede that there are no additional facts from background, training and experience that he/she is relying upon for the basis of his/her opinions.) (After you have gone through this series of questions for each opinion, you need to close out the opinions portion of the deposition.) “Dr. Schmo, have we now covered every opinion that you plan to give at trial?” “Yes. I believe so.” “Dr. Schmo, have you also identified each document and the portions of those documents that you believe supports the opinions that you are going to give at trial?” “Yes, I believe so.” “Dr. Schmo, have you also identified each fact that you believe supports each of the opinions that you are going to give at trial?” “Yes, I believe so.” “Dr. Schmo, do you have any plans on reviewing any additional documents, materials or other information prior to testifying at trial.” “I do not believe so, no.”

During this process, when the defense doctor opines that he or she believes that your client’s injury was not caused by the accident and that it was pre-existing, it is important to require the defense doctor to identify the entire universe of causes for your client’s specific injury. This is information that you need to have beforehand. Once the defense doctor identifies each of the potential causes for your client’s injuries, make sure that you ask the doctor to explain all of the facts and other information which he or she relied upon to rule in and/or rule out each of the possibilities. Additionally, attempt to have the doctor agree that each of these potential causes that he or she identified is possible or not possible, and to explain why.

Finally, while eliciting and pinning down the defense doctor’s opinions and the facts that support his or her opinions, you should also develop facts and opinions that help your case.

Facts and opinions that help your case

In order to have some semblance of credibility, the defense doctor will have to admit to certain facts that will help your case. One way to approach this issue is to get the doctor to agree to the reasonableness and necessity of as much of the treatment as possible and to as many of your own doctor’s opinions and the facts that support those opinions as possible. By the time that you take the defense doctor’s deposition, the treating physician and/or the plaintiff’s medical experts have already been deposed. Use this prior testimony as a guide and learn what facts the doctor agrees with and which ones he or she does not.

For example:

“Dr. Schmo, Mrs. Wonderful was involved in an automobile crash on July 4, 2014, correct?” “That is my understanding.” “And Mrs. Wonderful was wearing a seat belt at the time of the crash, correct?” “Yes.” “And wearing a seat belt is a very prudent thing to do when driving a car, correct?” “Absolutely.” “After the crash, Mrs. Wonderful was attended to by EMS and transported to the hospital on a backboard, correct?” “That is my understanding.” “EMS generally place crash victims on backboards when they suspect that there may be injuries to the spine, correct?” “I do not know what the EMS believed, but this is a standard procedure in automobile accidents.” “Is it prudent for EMS to place a crash victim on a backboard if they believe that the victim may have a spine injury?” “Sure.”

Q. “Do you agree that the treatment EMS provided to Mrs. Wonderful was reasonable, necessary and appropriate?” “Sure. I have no problem with the EMS treatment.” “Can we agree that the charges by the EMS personnel were reasonable and customary?” “I have no issue with the EMS bills.” “Dr. Schmo, the EMS transported Mrs. Wonderful to County General Hospital, correct?” “Yes.” “And while in the Emergency Room at County General, Mrs. Wonderful was treated and subject to a number of tests, including a physical examination, X-rays and CAT Scans, correct?” “That is what the records state.” “Do you agree that the treatment that was provided to Mrs. Wonderful at County General was reasonable, necessary and appropriate?” “Yes.” “Can we agree that the charges by County General were reasonable and customary?” “I have no issue with these bills.” (Continue with this line of questioning for all treatment up to the date of the deposition. Focus your questioning on positive facts in the medical records. At some point you will get to the area of disagreement.)

“Dr. Schmo, you reviewed the medical records from Dr. Rockstar, Mrs. Wonderful’s treating physician, correct?”

“Yes, in general, yes.” “Do you see here on page 5, of Ex. 4, where Mrs. Wonderful complains of chronic back pain six weeks after the crash?” “Yes. I see that.” “Do you see here on page 8, of Ex. 4, where Mrs. Wonderful complains of continuing back pain 10 weeks after the crash?” “Yes. I see that.” “Do you dispute that Mrs. Wonderful complained of pain on these occasions?” “No.” “Do you believe that Mrs. Wonderful was lying when she complained of back pain on these occasions?” (“Yes” or “no” are both a win. If the doctor says yes – then he or she has to explain to the jury why the client is a liar – all based upon review of medical records and a 20-minute examination.

Further, have a copy of your DSM handy to cross examine the doctor on malingering and secondary gain if he or she alludes to these issues – emphasizing that these are diagnoses that he is not a qualified expert to testify about.)

“Dr. Schmo, do you agree that Mrs. Wonderful was injured in the crash on July 4, 2014?” “I believe that she was injured, I just disagree with the claimed extent of the injuries and the prognosis.” “Can you tell the jury which injuries you believe were caused by the crash on July 4, 2014?” “Sure, blah blah blah. I just believe that the she did not require the amount of treatment that she received and I do not agree that the injury is permanent.”

Make sure you have the doctor identify each and every fact that supports his negative positions.

It is also very important to learn what rebuttal the defense doctor plans to offer at trial. Systematically, it makes sense to start with the medical records and then ascertain which portion of the treating and/or plaintiff’s medical expert testimony the defense doctor agrees or disagrees with. Also, make sure that you identify any other testimony that the defense doctor agrees with or disagrees with. Occasionally, a defense doctor will take issue with a percipient witness as well.

A defense doctor will rarely take issue with any of the information contained in the medical records. If the doctor does not have any issue with any of the information contained in the medical records, make sure you get the doctor to testify as to that. However, for those occasions where the doctor does have an issue, make sure you carefully and methodically identify the issues the doctor has and the facts and other information upon which the defense doctor bases his or her disagreement.

For example:

“Dr. Schmo, after having reviewed Mrs. Wonderful’s medical records, did you disagree with any of the findings or have any issues with any other information contained in these records?” “Yes. Blah, blah, blah.” (Make sure the doctor identifies each area of disagreement and make him/her testify that he/she has identified all of them.) “I would like to go over these areas of disagreement one at a time. Let’s start with the radiologist’s interpretation of the X-ray. Can you please tell the jury each fact, witness and writing, or any other information that supports your position?”

A. (Argument/attempt to dodge – finally identifies facts. Make sure you get doctor to concede that there are no additional facts that he/she is relying upon for the basis of his/her disagreement.)

Q. (After you have completed this series of questions for each disagreement– you need to close out the medical records disagreement portion of the deposition.) “Dr. Schmo, have we now covered every disagreement or issue that you have with information contained in Mrs. Wonderful’s medical records that you plan to give at trial?” “Yes.”

A defense doctor will almost always have issues with the treating physician’s testimony and/or the plaintiff’s expert’s testimony. At the same time, as stated, the defense doctor will have certain areas that he or she will agree upon with your treaters and/or experts. You will need to take the same systematic and methodical approach to this line of inquiry as well, making sure to pin down and close out any additional testimony relating to this area. Having a detailed outline of your treater’s and/or expert’s testimony is very helpful. Especially if the defense doctor feigns a brain block on anything that he or she agrees with.

For example:

Ask the first line of questions during the admonition – these questions will long be forgotten and can be used over and over again at trial:

“Dr. Schmo, you understand that you have been retained by the defendant to testify as to medical issues in this case, correct?” “Yes.” “And you understand that you are supposed to be giving fair, honest, unbiased and objective testimony, correct? “Yes.”

The one-sided doctor

Now let’s focus on how to deal with the one-sided doctor:

“Dr. Schmo, after having reviewed Dr. Rockstar’s deposition, can you tell us what portions of his testimony you agree with?” “I am sorry, the deposition is too long. I would need to go line by line in order to do that.” “Dr. Schmo, you testified earlier that you spent four hours reviewing the materials in preparation for your deposition, and that you spent an hour with the defense attorney in preparation for your deposition, correct?” “Yes. That’s correct.” “Additionally, you testified that you charged the defendant in this case $500 an hour for your time, which adds up to $2,500 that you earned in preparation for your deposition, correct?” “I assume so.” “Further, you just spent a considerable amount of time telling us all of the areas of the treating physician’s testimony that you disagreed with, correct?” “I gave you my opinions, yes.” “So are you telling us that after spending five total hours preparing for this deposition and earning $2,500 for your time that you cannot tell us the portions of the treating physician’s testimony that you agree with?” “Like I said, it would have to go line by line and that would take me too long. But I am sure that there are some things that I can agree with.” “You’re just not prepared to tell us what they are right now, correct?” “Correct.”

Depending upon the defense doctor’s responses to your questions, you may or may not want to follow up with specific facts. If the doctor concedes that he is not planning on providing any testimony about this subject matter, stop right there with this subject – do not give the doctor an opportunity to come up with opinions or an opportunity to refresh his recollection.

For every case, there are medically related concepts that the defense doctor cannot – or should not – disagree with. For example, there are no doctors that can disagree with the proposition that a traumatic event can result in an injury and that it is appropriate to treat this injury. Additionally, there are numerous other concepts that are generally unobjectionable, which should be presented to the defense medical expert on a case-by-case basis.

Some of these generally agreed-upon medically related concepts that should be reviewed for possible use during the deposition include the following: (1) some people are more fragile or predisposed to injury than others, (2) fragile people or those who are more predisposed to injury are sometimes predisposed to greater injury or pain from an event than others, (3) not all people experience pain the same, (4) some people have a greater threshold for pain than others, (5) pain is subjective, (6) there is no precise way to measure pain, (7) doctors have to rely upon their patients when determining the magnitude of pain the patient is experiencing, (8) not all patients recover from an injury at the same pace, (9) not all patients recover from an injury in the same manner, (10) a person’s fracture may heal, but a person can still experience pain, (11) some people experience chronic pain as a result of an injury and others who have the same injury do not, and (12) ascertaining a patient’s subjective complaints is a tool that is used by a doctor to assist with diagnosing an injury.

The list is endless and requires nothing more than common sense to develop an unobjectionable and an applicable list of medically related concepts that you should be able to get the defense doctor to agree with – or have him or her look really bad when he or she does not.

What the doctor is not going to testify about

It is also extremely important to know what the defense doctor is not going to testify about and to pin the doctor down on these subject matters. For those depositions or documents that the doctor testified he had not read or relied upon, this is not an issue. You have already locked that down. The real struggle during the deposition process, however, is whether to ask the doctor specifically about other areas that the doctor has not rendered an opinion on, especially after asking the closing questions about whether the doctor has any more opinions. As such, the safest course of action in most cases is to ask broad-based questions about areas of expertise to ensure that a proper foundation cannot be laid to establish the right to testify about that subject matter.

For example:

“Dr. Schmo, you are not an expert in accident reconstruction, correct?” “Correct.” “And you have no background, training in the reconstruction of an automobile accident, correct?” “That is correct.”

−Or −

“Dr. Schmo, you are an Orthopedic Surgeon, correct?” “Yes.” “An Orthopedic Surgeon specializes in treating problems with bones, joints and ligaments, correct?” “Yes.” “Neurologists are doctors who diagnose and treat diseases and injuries involving the nervous system of the body, correct?” “Correct.” “And if you had a patient with an issue relating to his or her nervous system, the prudent thing to do would be for you to refer that patient to a neurologist, correct?” “Correct.” “That is because you are not a neurologist, correct?” “Yes.”


“Preparation, preparation, preparation” – this age-old mantra should serve you well when tackling the defense medical expert’s deposition.

Stuart Fraenkel Stuart Fraenkel

Stuart Fraenkel is the co-managing partner at Nelson & Fraenkel LLP. He handles high profile, complex matters. He has a broad range of experience in civil litigation, including aviation, products liability, automobile, trucking, crashworthiness, personal injury, wrongful death, insurance, insurance bad faith, admiralty/maritime, premises, business litigation and entertainment. His litigation experience has involved matters throughout the United States (including Alaska and Hawaii), Asia, Australia, Canada, Central America, Europe, Mexico, the Middle East and South America. Mr. Fraenkel is well versed in national and international conflicts and choice of law issues.

Deposing defense medical experts to lock down their opinions
Deposing defense medical experts to lock down their opinions

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