32 Trial Lawyer • Fall 2023 Lessons Learned Continued from p 31 taken, the graphics can be used during depositions of the doctor and nurses. In addition to our emergency department physician, we retained an imaging expert and national-caliber neurologist who specialized in strokes to testify on the issue of causation. Our imaging expert was arguably too certain in his testimony, and it differed slightly from the testimony of our neurologist stroke expert. This created high anxiety in our trial team and made the Haas v. Estate of Carter version of the “but for” causation jury instruction critical to our chances of a plaintiff’s verdict. The complaint We have a rule in our office that every case is filed six months before the actual statute of limitations runs. There are occasional exceptions but by doing this you avoid stress on you and your staff, and create the opportunity to add additional defendants as needed. Once the complaint is drafted, it would be foolish not to get all your experts to weigh in on the substance of the allegations before it is filed. We try to make the allegations as simple and concise as possible. Rule 21 motions are often filed that attempt to force us to add more detail to the complaint. By starting with bare-bones allegations, it makes it easier to add some detail and avoid motion practice. When serving the complaint on the defendants, we always include a request for production and a request for disclosure of the insurance agreement. We know who we want to depose, and, as soon as defense counsel appears, we send them a letter requesting depositions. One of the few advantages that we have in this area of litigation is the advantage of knowing the case very well before the defendants have even seen it. Do not waste this advantage. Press hard on your requests for production and requests for depositions. Discovery Ask your experts to help you identify certain policies, procedures and protocols that they know exist in the hospital or clinic setting. Do your own independent research by using the national organization for the specialists you have sued. Buy their publications online. For example, use UpToDate, which is a subscription web-based resource that is used by medical providers around the world. It is full of citations and links to peer-reviewed journal articles. Do the research! Save your research into a cross-examination or literature folder that can be used during the depositions and at trial, provided your expert will identify the specific journals as “reliable authorities” under OEC 706. Ask your experts to help you develop certain lines of questioning for the depositions. Ask them what else they need to know to solidify their conclusions about the different violations of the standard of care and likely causation issues. Don’t forget to request the audit trail. This will provide valuable information about who accessed the chart, when they accessed the chart and what entries they made. If there are imaging issues, make sure you have hired the right kind of radiologist. If the issues relate to the spine and brain, make sure you have hired a neuro-radiologist. Imaging is subject to interpretation! Make sure your expert is qualified to provide their opinion. We like our experts to identify certain slices from imaging studies that best illustrate the point we are trying to make and create a slide show for the jury. In retrospect, we ought to have hired a neuro-radiologist given the fact that a carotid artery dissection was involved. We could have done a better job of presenting evidence related to the grades of artery dissections and the evolution of the different grades of dissections. Regardless, these imaging studies ultimately turn into trial exhibits that will be used over and over throughout the course of a trial. We showed the jury Exhibit 44, the brain MRI, as often as we could. Don’t forget you can ask the doctor to provide his or her interpretation of the imaging during deposition. Ransom v. Radiology Specialists of the Northwest. Depositions To my knowledge, there are two schools of thought on how to approach depositions of defense witnesses. The first is that your goal is to lock the witness into their story, provide as little wiggle room as possible for future additions to the answer and save the hard questions for trial. We do not subscribe to this approach. The second approach is to take the witness head-on and ask all the hard questions. David Ball and Don Keenan have written about this specific topic in far more detail, and with much greater eloquence and insight than we possibly can. We urge you to read their materials and attend their seminars. Few cases are being tried these days, and we believe the trial, in large part, happens during the deposition. Spend time preparing. You will be questioning someone who has devoted their professional career to the subject matter on which they’re being questioned. If you don’t have a wellthought-out strategy that you can execute, you will have wasted a key opportunity to create risk for their insurance carrier. Think about soundbites. You want to have short, clear questions and damaging answers, that you can pull from the deposition and show during your opening statement. Video record every deposition. We like to use real-time court reporting that gives a rough transcript of the deposition as it is occurring. This enables us to mark answers that may have been incomplete or evasive, which we can then circle back to before concluding the deposition to make sure we have exhausted the deponent’s knowledge and information on that specific question. Check with your court reporter to see if they have this capability and if they do
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