Physician Witnesses in Personal Injury Cases: Refuting Doctor Testimony, Exposing Bias

Part I – A New Look at the Doctor Deposition

For years, defense counsel has accepted and followed the traditional Introduction, Credentials, Records Review, Opinion/Comment, and Thank You for Your Time, approach when taking the depositions of treating physicians. In so doing, attorneys have ignored the opportunity to take an offense-focused approach to doctor depositions.

The first part of the webinar will focus on moving away from the usual outline and taking a new look at how to depose a treating/prescribing physician. It will include methods to expose and unwind any ex parte meetings that may have tainted the testimony out of the gate; putting corporate documents into context; providing the physician an opportunity to bring a defense angle to the plaintiff's medical history; and reexamining when--and if--to qualify the physician.

Part II – Unmasking the "Expert" Treating Physician

Defense counsel face at least two significant challenges when dealing with the treating physician witness. First, for reasons the panel will discuss, juries presume that the physician, dentist, psychologist, or surgeon is objective, fair, and credible. Second, Federal Rule 26(a)(2)(C) exempts the treating physician from the more rigorous disclosures and requirements of Rule 26(a)(2)(B).

For over a decade, plaintiff counsel have overtly exploited these challenges to their advantage while defense counsel have ignored or accepted them with predictable results. Defense counsel, however, can do more than merely neutralize these tactics. With careful planning, they can reverse the presumptions and refocus the case on the plaintiff's injuries.

Part of the approach must be to unmask the retained expert masquerading as the treating physician. In federal court and many state jurisdictions, the plaintiff must present evidence that the defendant or its product caused the plaintiff's injury before presenting evidence of damages. By using the treating physician to provide causation testimony, plaintiffs have avoided producing the reports and disclosures required by Rule 26(a)(2)(B), by invoking the treating physician exception in Rule 26(a)(2)(C). But this is no more. Causation testimony must pass muster under Daubert, and treating physicians generally have not performed the required analysis and differential diagnosis.

PART III – How to Work the "Expert" Treating Physician To Your Advantage at Trial

After you have taken the winning deposition and after you've worked diligently to unmask the "expert" treating physician through motion practice, how can you use the "expert" treating physician to your advantage. Depending on the venue, you may be able to designate parts of the deposition as trial testimony. In some jurisdictions, you may be able to take a new "trial" deposition (a de bene esse deposition). If the witness is within the subpoena power and is favorable, you may choose to call the treating physician live. Considerations on how to use the treating physician's testimony will depend on the role of the doctor in the case. Good use of treating physician testimony can mean victory in the case.

Listen as the expert panel discusses how to depose, examine, or cross-examine physicians in personal injury cases.

1. Understanding how juries perceive doctors, surgeons, and other medical professionals
2. The goals of examination and cross-examination
   1. Causation expert
   2. Treating physician
3. Covering specific topics
   1. Demonstrating how the expert was denied the full record
   2. Cross-examination regarding preexisting conditions
   3. Using warnings, consent, expectations
4. Rule 26(a)(2)(B) and Daubert

The panel will review these and other topics:

• Why traditional lines of questioning no longer work
• What facts can rebut presumptions of objectivity
• How to uncover and expose bias
• How does questioning at the deposition differ from trial examination