Deposing the Adverse Medical Expert

The University of Texas School of Law

Presented: The Car Crash Seminar: From Sign-Up to Settlement

August 19-20, 2010 Austin, Texas

Deposing the Adverse Medical Expert

Dan Christensen

Dan Christensen The Carlson Law Firm, P.C. 3410 Far West Blvd., Ste. 235 Austin, Texas 78731 dchristensen@ 512-346-5688

Continuing Legal Education ? 512-475-6700 ?

PREPARING FOR AND DEPOSING THE ADVERSE MEDICAL EXPERT

Dan Christensen

TABLE OF CONTENTS

I.

SCOPE.................................................................................................... 1

II. NO-LEGALESE DISCLAIMER.................................................................... 1

III. INTRODUCTION...................................................................................... 1

IV. THE LAW................................................................................................ 1

V. GOALS................................................................................................... 3

VI. PREPARATION....................................................................................... 4

VII. WHAT QUESTIONS TO ASK...................................................................... 4

VIII. DELIVERY.............................................................................................. 4

IX. CONCLUSION.......................................................................................... 5

APPENDIX A APPENDIX B APPENDIX C

PREPARATION OUTLINE SAMPLE DEPOSITION NOTICE WITH SUBPOENA DUCES TECUM DEPOSITION OUTLINE

DEPOSING THE ADVERSE MEDICAL EXPERT

Dan Christensen

I. SCOPE.

It is my intent that this paper be a brief, very informal, discussion of some of the strategies plaintiff's lawyers can use to depose defense medical expert witnesses. It is not meant to be a comprehensive discussion of Robinson, Texas Rule of Evidence 702, or Texas Rules of Civil Procedure 194 and 195. Rather, this paper is meant to be a general overview of some strategies and techniques that have worked well in the past for this particular lawyer.

If you are in need of a thorough, heavily annotated, treatise on the law as it pertains to expert discovery or the admissibility of expert testimony, this is not your resource. On the other hand, if you are interested in a casual, practical and realistic discussion about how to conduct the deposition of an adverse medical expert in a car wreck case, it is my hope this paper will benefit you.

The majority of the discussion is written from the perspective of the plaintiff's lawyer deposing the defense medical expert witness. Most of the concepts and issues addressed, however, are also applicable to the defense's examination of plaintiff's medical experts.

II. NO-LEGALESE DISCLAIMER.

I have stolen most, if not all, of my ideas and strategies from various authors, lawyers, friends and clients over several years. If I can recall who taught me a specific method or gave me an idea, I will credit them appropriately. If you are one of

the people who gave me an idea and I fail to properly credit you, you have my word that I will share all the royalties I earn from this paper with you.

III. INTRODUCTION.

This paper will focus on the question of how to best conduct the deposition of the opponent's retained medical expert. As we all know, there is no one way to cross examine an opponent's expert. There is no single formula that, whenever employed, consistently causes adverse experts to buckle and admit they are frauds. Therefore, my goal in this paper is simply to present a number of ideas that have proven successful with some of the experts some of the time.

IV. THE LAW.

a. Texas Rule of Evidence 702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

b. Texas Rule of Evidence 703. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

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c. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, (Tex. 1995).

Established the well-known six nonexclusive factors to consider in determining the reliability, and admissibility, of expert testimony:

1. The extent to which the theory has been or can be tested;

2. The extent to which the technique relies upon the subjective interpretation of the expert;

3. Whether the theory has been subjected to peer review and/or publication;

4. The technique's potential rate of error;

5. Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

6. The nonjudicial uses which have been made of the theory or technique.

d. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).

Stated that a properly designed and executed epidemiological study that reveals a doubling of the risk may be part of the evidence supporting causation in a toxic tort case. This "doubling" is not a litmus test. Additionally, a single study or test is legally sufficient evidence of causation. The court must consider the totality of the evidence.. Lastly, when using studies, must show that the plaintiff was similar to the individuals in the study, i.e. "that the injured person was exposed to the same substance, that the exposure or dose levels were comparable to or greater than those in the studies, that the

exposure occurred before the onset of injury, and that the timing of the onset of injury was consistent with that experienced by those in the study."

e. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998).

Held that the Robinson factors applied to expert testimony based on skill and experience, rather than on science. "Nothing...requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."

f. Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).

Finding that Plaintiff's lay testimony was insufficient to establish causation on the facts of this case. The Court stated, however, that "the causal connection between some events and conditions of a basic nature (and treatment for such conditions) are within a layperson's general experience and common sense. This conclusion accords with human experience, our prior cases, and the law in other states where courts have held that causation as to certain types of pain, bone fractures, and similar basic conditions following an automobile collision can be within the common experience of lay jurors. (citation omitted). Other examples where expert testimony may not be necessary are low back pain (State Office of Risk Mgmt v. Larkin's, 258 S.W.3d 686 (Tex. App. ? Waco 2008, no pet.)) and carpal tunnel syndrome (Saenz v. Ins. Co. of P.A., 66 S.W.3d 444 (Tex. App. ? Waco 2001, no pet.)).

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g. Columbia Med. Ctr. Las Colinas v. Hogue, 271 S.W.3d 238 (Tex. 2008).

Trial court was correct in refusing to submit a contributory negligence question when the evidence of contributory negligence was based on speculation or mere possibility. Testimony that something "could have," "possibly" or "perhaps" resulted in the injury amounts to nothing more than speculation or conjecture.

h. Merck v. Ernst, 296 S.W.3d 81 (Tex. App. ? Houston [14th Dist.] 2008).

Plaintiff's experts' speculation that a blood clot "could have" existed, but then "could have" dissolved, been dislodged, or fragmented prior to the autopsy was nothing more than mere conjecture and insufficient to support a finding of causation.

i. Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184 (Tex. App. ? Corpus Christi 2002).

Finding that Texas Rules of Evidence and Robinson factors apply to Defense expert witnesses testifying about injury causation just like they do to Plaintiff expert witnesses. The Court upheld the trial court's exclusion of defense expert testimony of alternate theories of injury that were not factually supported.

j. Niemann v. Refugio Co. Mem. Hosp., 855 S.W.2d 94 (Tex. App. ? Corpus Christi 1993).

Plaintiff's evidence regarding causation failed when experts report simply

stated possibilities. Court upheld trial court's decision to grant defendant's noevidence Motion for Summary Judgment. "The mere possibility that an act of negligence might have caused the damages from a medical viewpoint is not sufficient to support recovery. It must be shown that the act probably caused the injury." (citation omitted).

k. Chau v. Riddle, M.D., 2008 Tex. App. LEXIS 8440 (Tex. App. ? Houston [1st Dist.]).

Plaintiff, who has a pre-existing condition, is not required to prove the degree of additional injury caused by Defendant's negligence as long as the negligence is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.

V. GOALS.

There are a number of goals for conducting the deposition of the opponent's expert. These goals are different, yet similar, to our goals when cross-examining the expert at trial. When cross-examining an expert at trial, we will usually maintain control over the witness with narrowlytailored, closed-ended questions aimed to tell our client's story and discredit the witness. We are not conducting discovery or having lengthy scientific debates as we might during a deposition. The general mission of advancing our client's story, building rapport with the jury, and damaging the opponent's credibility remain constant, however, whether in deposition or trial.

Depending on the case, the goals of our deposition will usually be some or all of the following:

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