This article originally appeared here in Vol. 12 No. 2 of Pro Te: Solutio.
In the context of the practice of medicine, we are all very familiar with the Latin phrase primum est non nocere. It means “first, do no harm” and is the ethical guiding principle in the medical profession. Inherent in this phrase is the understanding that physicians, as part of their work, must stay up to date with the evolving practice of medicine. Over the past 20 years, the advent of the internet and other technological innovations, coupled with novel approaches to assessing, diagnosing and treating patients, has led to a paradigm shift in the way many doctors practice medicine. In many cases, it has resulted in more efficient medicine with better outcomes for patients— ranging from curing or eliminating diseases (such as hepatitis C) to cutting inpatient hospital stays from weeks to days.
So what about us defense lawyers? Should we, as practitioners of one of the other learned professions, likewise move out of our comfort zones and embrace changing practices, thoughts or ideas? Of course we should, and while we have willingly and eagerly accepted the changes on the technology front, we have been less than zealous when it comes to adopting—or even considering—different litigation practices and techniques. This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. While it certainly will not fit every situation, there are times when some of this approach can have a positive impact on the outcome of the case. We would all agree that such a result est bonum.
Since the publication of Reptile: The 2009 Manual of the Plaintiff’s Revolution some 10 years ago, we have seen an evolution of tactics and styles in the way depositions of company witnesses have been taken in personal injury litigation. While these new methods may have been collectively saddled with a moniker that sounds like a title for a fifth grade science fair project, the Reptile theory is still being utilized today. Why? Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs’ lawyers take depositions. More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked.
Used effectively by plaintiff’s counsel, Reptilian techniques can make a company witness squirm, flatten litigation momentum and themes, and have a tendency to lodge the stomachs of the lawyers defending those depositions squarely in their throats. Over time, however, we have adapted. Through training, targeted witness preparation, issue-focused redirect examinations and effective motion practice, we have worked to neutralize and eliminate those jury-friendly sound bites. Both sides now approach the corporate deposition with a newfound appreciation of what is at stake—and the best attorneys plan accordingly.
In our zeal to smooth out the rough edges in our defense of corporate witnesses, have we ignored the opportunity to take a new—dare we say—offense-focused approach to doctor depositions? Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. Jurors often perceive the providers as neutral players in the game, unsullied by expert fees and untethered to long histories of associating with law firms or litigation. Such doctors are seen as erudite individuals who are not out to serve as advocates for a particular person or company but rather as witnesses who, through their training, education and experience, have made objective decisions and unbiased choices in their approach to treating the named plaintiff and utilizing or prescribing the product at issue in the case.
So why do we continue to take physician depositions as if we are still in the stone age? Do our court reporters come to the conference room with a pad and pencil ready to write down every word? Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? Of course not. Likewise, the substantive material in our outlines should not elicit memories of the days of British Sterling cologne and home permanent kits.
The tired practice of following an outline loosely based on Introduction, Credentials, Records Review, Opinion and Thank You for Your Time, Doctor is over. Or, at least it should be. We have a duty as counsel to leave the “take the deposition now and deal with it later” attitude that seems to have become commonplace in some circles. Of course, a revolutionary, game-changing deposition may not be possible with every case. It is certainly not possible with every doctor, as some may have developed steadfast views against our product before we even serve the Notice. But it doesn’t mean we shouldn’t try.
Qui, Quid, Ubi, Quod, Cur, Quam? | Who, What, Where, When, Why, How?
Take Them out of the Woodshed
The old idiom “take them out to the woodshed” harkens back to the days when a child or individual would be taken out of the house to the proverbial woodshed for some one-on-one behavioral modification. In the context of depositions, it refers to the practice of plaintiffs’ lawyers having ex parte meetings with doctors before the deposition to discuss the plaintiff’s theories and to share cherry-picked, out-of-context corporate documents.
As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. between counsel for the plaintiff and the doctor before the first question is asked under oath. Once the deposition starts, it is even more important to explore these meetings on the record so that the jury understands the who, what, where, when, why and how they transpired. Those men and women in the box generally have no idea to what degree either side has discussed the case with the doctor—and most likely have no idea that contact has even been allowed. If you happen to have a judge who allows the plaintiff to have ex parte contact with healthcare providers, then you have a duty to go beyond the fact that the meeting merely occurred and let the jury know that not only did you not attend—you were never invited.
Potential lines of questioning regarding this point may include the following:
- We met for the first time today when I introduced myself to you in advance of this deposition, correct?
- Have you ever been contacted by an attorney who represents the plaintiff in [current] litigation?
- By whom? When?
- What is your understanding of why the attorney contacted you?
- What was the nature of the conversation?
- Did you meet with any lawyers prior to the deposition?
- If so, with whom did you meet?
- Were they lawyers retained by the plaintiff in this litigation?
- When? Where? For how long?
- If the doctor met with plaintiff’s counsel, ask the following questions:
- Plaintiff’s counsel is not representing you at this deposition, correct?
- What did you discuss with plaintiff’s counsel?
- Did plaintiff’s counsel compensate you for your time?
- Have you had any discussions with plaintiff’s counsel about being compensated for your time meeting with them or reviewing documents?
- Did they show you any documents?
- Did they show you any internal company documents?
- Did they show you any scientific literature?
- Did they discuss with you any internal company documents?
- Did they discuss with you any scientific literature?
- Did they discuss with you any studies that have been conducted on [product]?
- Did they ask you to appear at a future trial of this case?
- Was I present?
- Was anyone representing [product or client] present?
- Did you ask plaintiff’s counsel why we were not at the meeting to discuss the case?
- Did plaintiff’s counsel say or suggest we were invited but did not show up?
- In fact, plaintiff’s counsel had this meeting with you and showed you documents and discussed the case, yet they made no effort to include us—the lawyers representing [product or client]—in that meeting or discussion?
Timendi Causa Est Nescire | The Cause of Fear Is Ignorance
Put Corporate Documents in Context
It is no secret that in most personal injury cases involving pharmaceuticals or medical devices, counsel for the plaintiff would prefer to spend 90% of their case trying the company and 10% (or less) trying the particular facts related to the allegedly injured party at hand. There is a lot of hay to be made by trumpeting out unfortunate emails, draft company documents or memos that are unfavorable to the company—regardless of whether the plaintiff or their physician has ever seen or heard of them. That is precisely why, in predeposition prep sessions, plaintiffs’ lawyers may spend hours with a doctor walking through document after company document to set the table for the “wouldn’t you have liked to have known” questioning. It does not matter that the doctor has not seen the documents, that the documents have little or nothing to do with the science of medicine surrounding the product, or that the documents are in no way temporally related to the care and treatment of the patient. What matters is that effective use of corporate documents can poison the well as to the physician’s impression of the company and its behavior—and make them less reluctant to make concessions that may play against the patient.
If you learn during the early questions that a doctor has reviewed certain documents, you must assume they have seen the worst of the worst. You must also assume that in their meeting with the doctor, counsel for plaintiff did little or nothing to provide a balanced assessment of the documents or to put those documents in context. They certainly did not show them the documents or timeline surrounding whatever issues were discussed or referenced therein. Likewise, they did not show the doctor any of the corporate testimony involving drafters of the documents, emails or memos that may have shed some light on what was said, when it was said and why it was said. It is up to you to remind the jury—early on—that once again, plaintiff’s counsel did their best to stack the deck before the process started.
The purpose of going through this exercise is twofold. First, it shows that the documents were shown in a vacuum, without regard to context or content. Second, it provides you, the questioner, an opportunity to bring the line of questioning back to the documents that doctors are most familiar with—medical records—and show, by analogy, that a single document, standing alone, does little to educate the physician on the issue at hand.
Potential lines of questioning regarding placing documents in context may include the following:
- Did plaintiff’s counsel show you several documents prior to this deposition?
- As you understand it, those documents are corporate documents that the plaintiff’s lawyer told you were from [company]?
- I want to bring the facts of this case back to the jury. But before I do, just so there is no confusion:
- You do not work for [company]?
- You have never worked for [company]?
- Before your deposition in this case, you never even saw any of those documents?
- The first time you saw the documents were before today where you are being recorded and have been sworn in under oath?
- Since the deposition, you have not seen any company documents?
- You did not ask for the documents that you were shown?
- You did not even know the plaintiff’s lawyer was going to show you [company documents]?
- Do you know how many millions of documents [company] has produced in this case?
- Yet the plaintiff’s lawyer only showed you a few of them?
- Do you agree it is important when you look at a document to put it into context?
- Like a medical record?
- When you see a patient for the first time, you want to know the history?
- You want to put what they are telling you in terms of their presentation into context?
- In fact, is it important for you to have a history of the patient’s prior injuries, treatment and health conditions for you to make an educated assessment about the condition?
- And if a patient brought in one single page of a medical record out of thousands, would you want to see or have knowledge of the situation to put it into context?
- Otherwise, you may misinterpret it?
- Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. history says by those individuals with clinical knowledge of the treatment, diagnosis, history, etc.?
- Like a medical record?
- When the plaintiff’s lawyer showed you those documents:
- They did not put it into context?
- They did not invite me to attend?
- They did not invite any of the authors of the documents to attend?
- They did not invite any of the recipients of the documents to attend?
- They did not provide any of the background data, underlying documents or emails leading up to that document?
- That being the case, for you to fully understand that document and be educated on it—like a medical record—would you need a proper and thorough history of that document?
- The plaintiff’s lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they?
- But what you do have here is your history in the care and treatment of the plaintiff, correct?
- You took those histories?
- You had the benefit of the plaintiff’s medical record and past illnesses, ailments and comorbidities?
- Unlike the company records, you have an educated background as to the medical records and documents for [plaintiff]?
- For the jury, I want to shift gears and let’s finally talk about what you know and what you were asked to come here to talk about—your records and your care and treatment of [plaintiff].
Veritas Odit Moras | Truth Hates Delay
Put the Plaintiff’s Medical History Front and Center
At this point, you should have the attention of both the doctor and jury. By now, before any substantive shots have been fired, you will have established that the corporate documents were not only shown out of context but also that they have nothing to do with the plaintiff—which is why the doctor is here. Now you have a logical segue to the medical records. If the facts warrant, you should use this moment to detail the plaintiff’s relevant preexisting clinical conditions—and put them front and center before the jury and the doctor.
It is not uncommon for a treating physician giving a deposition to have little or no independent recollection of the plaintiff or of their treatment of the plaintiff. If this is the case and if the plaintiff experienced substantive or significant comorbidities leading up to the implant, prescription or ingestion, then take the time to walk through those comorbidities in a linear fashion. If they are numerous, authenticate and mark each individual medical record that identifies a history of infarctions, diabetes, smoking, noncompliance, etc. as an individual exhibit. It makes it easier if the records ultimately go back to the deliberation room to be broken down and separated—much easier than an unwieldy stack of hundreds of pages of records.
Moreover, if you feel that a list of significant comorbidities would serve as an impressive
demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. When you are done, have the doctor clearly confirm what the list represents. Ask the doctor to sign it before you mark it as a separate exhibit. It is one more way to indirectly and tangibly bring the doctor back into the courtroom months down the road.
Use Informed Consent, Warnings and Expectations to Your Advantage
Having now laid the foundation for the plaintiff’s health condition and having taken a trip through time leading up to the allegations at issue, you must then make the call to determine how deep you want to go regarding substantive opinions about the product, outcomes, diagnosis and prognosis. This line of questioning would generally fall into those reserved traditional outlines. However, you now have the added benefit of having refreshed the physician’s recollection while educating the jury on the relevant health issues and history saddling the plaintiff—before the product was ever used and before the alleged injury occurred.
Now you must decide if any of the allegations in the complaint can be taken down or neutralized by the consent process; the warnings from the Instructions For Use (IFU), product label or package insert; or common knowledge in the medical field. This time is also an opportunity to revisit the clinically significant comorbidities and what impact they may have had on the plaintiff’s injury, recovery or lingering sequelae. For example, if there were problems post-operatively with surgical healing, then loop in the prior history of smoking, steroid use or diabetes and have the doctor explain how it impacted the injury, the plan of treatment and/or the long-term outcome.
Establish Absence of Injury in Medical Records
By this point, you have established the importance of medical records as a critical part of a true and accurate history. You should also incorporate questioning to elicit testimony that physicians rely on prior histories for a number of reasons—not the least of which is to make good, solid, history-based medical decisions going forward. If a physician thinks a certain medication caused an adverse outcome for a patient, then they would certainly chart it so that future treaters would have the benefit of that knowledge and steer the patient away from such therapies in the future. The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. If yours is a case where the healthcare providers did not cite or blame your product on the outcome, then establish the absence of any causal link between the product and the outcome. Also establish the absence of any addendum, correction or revision to the record since the filing of the lawsuit and since the deponent has discussed the case with the plaintiff’s counsel. Many physicians will admit they are trained—for charting purposes—that if it’s not in the medical record, it didn’t happen. If the records do not reflect a causal link, then the physician’s opinion as to your product or device should be consistent.
Pro Re Nata | As Needed; As the Occasion Arises
Qualify the Physician—Maybe
Back in the day, one of the first topics covered at the deposition was the physician’s credentials. After the Notice of Deposition is marked and covered, per tradition, the next exhibit would have been the physician’s curriculum vitae, which would have been covered from A to Z. Medical school, internship, residency, fellowship? Check. Board certified? Check. Privileges in hospitals in the area? Check. Published on the topic? Check. And the list goes on, with most of us quietly congratulating ourselves after the fact on our ability to read a CV into the record.
But you have to ask yourself this question: Why qualify early? Other than having the doctor introduce themselves as a physician who participated in the care and treatment of the plaintiff, why would you go any deeper at the beginning of the deposition? A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. If the doctor flips on you, is difficult or provides testimony that you hope to never see or hear again, then you certainly would not take steps as your questioning winds down to walk through their training, education and experience, would you? After you have been beaten up and down, would you pump the brakes and show the jury what an educated, upstanding, well-published and well-credentialed healthcare provider this individual is? No. So why do it at the beginning—before you know what they are going to say?
Vicis, Vices | Change, Changes
As noted above, these practice points may not be applicable for every case, in whole or in part, nor should they be interpreted as suggesting change for the sake of change. What they should do is challenge us to take the reins and step outside our comfort zones. Plaintiffs’ lawyers and seasoned doctors are expecting the same old, same old when it comes to questioning. Use the few hours you have to educate the doctor and the jury in a manner that allows you to frame client-friendly lines of questions. After all, innovation in your questioning could very well be the sine qua non of your success.