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The Four Documents You Need To Depose a Medical Expert

by Edward J. Kroger, MD, JD on January 18th, 2011

Medical expert depositions are challenging, and preparation is key. In my experience, there are four documents that are critical to every expert deposition:

1. Outline of Questions. Attorneys should rarely attempt to cross examine an expert in a deposition without preparing an outline of their questions beforehand. An outline helps you take an orderly, complete deposition and can ensure key questions are asked correctly. My outlines follow a standard format based upon the Seven Ways to Cross Examine an Expert Witness. While most outline entries consist of a few words to remind me what to ask, I will often write out the most critical questions word for word so that I ask the question in the most effective way. My typical outline might run seven to ten pages. It is important to use the outline only as a guide. When listening carefully to a witness, you will often have to backtrack over areas you already covered, or go into new areas raised by the responses.

2. Expert’s Resume or Curriculum Vitae. It is essential that the expert’s resume or curriculum vitae (CV) be reviewed carefully before the deposition. Particular attention should be given to areas of expertise and experience. The expert’s publication list should be reviewed to find articles that might be relevant to your case. You may choose to confront the expert with his own writings during the deposition or you may want to wait until trial. In all depositions, have the expert review his own resume for accuracy and completeness and have him identify each article he has authored that may relate to your case.

3. Expert’s Report. In most cases, you will be provided with the expert’s report prior to the deposition. It is critical that this be studied repeatedly and in detail, as it will obviously form the basis of many of your questions. Under Texas law, the plaintiff must file a detailed “Chapter 74” report discussing negligence, causation and damages in order to maintain a health care liability claim. By law, the Chapter 74 Report cannot be used to question a plaintiff expert directly, if the plaintiff attorney objects to its use. Prior to the deposition then, it may be necessary to obtain a court order compelling the plaintiff to obtain a non-Chapter 74 written report from his experts (the judge will simultaneously require your experts to produce reports). During the deposition, you will want to make sure that not only have you understood all of the factual bases for and opinions of the expert, but that the expert does not have any other opinions not set forth in his report.

4. Subpoena Duces Tecum. The fourth and final document essential to an expert deposition is a Subpoena Duces Tecum (SDT), requesting the expert bring to the deposition all of the materials he has used to form his opinions and all of the documents he has created as part of his expert review. Usually at the start of the deposition, the SDT is reviewed with the expert to ensure compliance.

I always have my highlighted copy of the SDT, CV and expert report clipped to a clean copy of each. The clean copies are my first three exhibits to the deposition and for use by the expert. I use the highlighted copy to ask questions from. The expert’s file is attached in whole or in part as exhibit four and up. I have my deposition outline open as a document on my laptop and have learned to carry a backup copy printed or on another device as well. With these four documents, you will be well prepared for even the most complex medical deposition.

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