Deposition review by expert witnesses
I was recently asked this question: “I am a plaintiff expert. I have written an affidavit of merit in a case and now the attorney has sent me depositions to review. What do I do?”
The initial understanding about what occurred in a case is often changed when the attorney takes depositions. He or she uses a deposition to probe the credibility of the defendant and fact witnesses (people who have knowledge of the events but are not named as defendants.) Sometimes the answers of a fact witness result in him or her being named as a defendant. For example, a nurse may testify that she knew something about a change in the patient’s condition but did not report it to a doctor. That answer may pull her into the lawsuit as a defendant.
Review of defendant depositions
The expert witness’s job is to review the deposition transcripts. (Always insist on having the full transcripts and do not rely on a summary prepared by the law firm. The person who did the summary may miss something of importance.) You are looking for explanations of an event, which may differ among the defendants. Deposition testimony may reveal fuller descriptions of practices, which may not always match what should be done. For example, one case involved a woman who hemorrhaged in the same day surgery recovery area. The same day surgery nurse testified she did not take a set of vital signs when the patient entered her unit. She copied the last set of vital signs obtained in the recovery room. Although the expert witness suspected that happened, the deposition testimony confirmed it did, and that this was the usual practice of the same day surgery nurses.
Some attorneys send depositions to experts on an ongoing basis with a cover letter asking you to call with your thoughts. Others may take a series of depositions and send them all at once. Read the cover letter that came with the depositions and determine the next step – are you waiting for more depositions or does the attorney want you to call him or her?
Before you call the attorney, gather your thoughts and re-review the medical records if necessary, to see how your opinions about the case have been expanded or altered by the new information. Be prepared to concisely describe your reactions and responses to the deposition. You may also see opportunities to suggest the attorney ask for additional documents, such as policies and procedures. Also ask the attorney if any depositions have been taken that you have not received. It is far better to receive a deposition, skim it and find out that the person being deposed had nothing relevant to say, than to get into court and be cross examined as to why you did not read a deposition.
The attorney may ask you to prepare a report after all of the relevant depositions have been taken. Use your review of the medical records and depositions, as well as other documents you received, to build your report.
Review of an expert deposition
In states that permit expert witness depositions, the plaintiff expert witness’s deposition is typically taken before the defense expert is deposed. (Experts are not deposed in New York or Pennsylvania.) By reading the defense expert reports, the plaintiff expert can anticipate some of the questions that may be asked. The defense expert is most often deposed next, and the plaintiff expert should be sent the deposition transcript for review. Look to see how the expert has taken the same facts and viewed them differently. Look for weaknesses in the expert’s position or background, or facts that were ignored. For example, you may find the expert has a weak clinical background, or overlooked documentation that supports your position in the case.
Experts must undertake a careful review of depositions.
Pat Iyer was a liability expert witness for 20 years and cannot calculate how many depositions she has reviewed over the years. She is the Past President of the American Association of Legal Nurse Consultants.