Gathering information about the adverse medical expert prior
to taking a deposition can optimize the time spent during the
deposition. Most of the information is available at no cost, and
together an organized legal assistant and lawyer can become
a potent force at a deposition.
We have divided the type of information that can be gathered
ahead of the medical expert deposition into seven categories; 1)
formal discovery requests, 2) general historical information,
3) academic training and accomplishments, 4) ethical
standards/guidelines, 5) articles and publications, 6)
disciplinary action, and 7) personal litigation. It is our hope
that this article will help you, or your legal assistant, develop
a checklist that can be completed before your next medical
1. FORMAL DISCOVERY REQUESTS
We all use form expert interrogatories that require the
defendant to set forth the expert's generalized opinions and
which request the minimal information going to bias now set
forth in rule 1.280(b)(4) of the Florida Rules of Civil Procedure.
In addition, the relationships between the defense law firm and
expert, and between the insurer and expert are also
discoverable from the defendant even if the defendant is the
In Allstate v. Boecher, 733 So. 2d 993 (Fla. 1999) the Florida
Supreme Court mandated that when this type of information is
sought, the balance of interest should shift toward allowing
the pretrial discovery. Despite the fact that Boecher was
reviewed and the opinion was issued during the same time period
that the Supreme Court of Florida had granted review of the
same issue in a case where the trial court had ordered
production of documents from an insured, (Mattek v. White, Case
Number 95-284-CA10), many judges refused to allow
discovery into the relationship between insurer and expert
when the defendant was the insured. (1) However, in 2000 the
Fifth District Court of Appeals removed any doubt about
whether the information could be obtained from the insured
when it recognized that the insurer who provides a defense for
its insured is the insured's agent. Springer v. West, 769 So. 2d
1068 (Fla. 5th DCA 2000). (2) Thus the relationship between the
firm and the expert is discoverable directly from the defendant
insured. Id. (3)
A party's responsibility to disclose information known by
himself and his attorneys was made clear in Surf Drugs, Inc. v.
Vermette, 236 So. 2d 108 (Fla. 1970). However, many boiler
plate objections are made when a defendant is asked to
disclose his law firm's prior retention of a medical expert.
Springer made it clear that the law firms are effectively
"agents" of the insured.
Experts must provide a three year testimonial history to testify
in Florida courts. Orkin Exterminating Co. v. Knollwood
Properties, 710 So. 2d 697 (Fla. 5th DCA 1998). Many
defendants will file responses indicating that they don't have
or don't know the information. Unfortunately, many judges are
reluctant to seriously consider striking an expert for the
failure to provide the testimonial history until you have
exhausted other attempts to obtain it. Deposing the records
custodian of the expert by written deposition questions
pursuant to rule 1.320 of the Florida Rules of Civil Procedure
may provide an additional opportunity to demonstrate your
efforts. Keep in mind that the deposition of the custodian has to
be noticed with a minimum of 50 days lead time.
If you are successful in obtaining a testimonial history from
your adverse expert, check it against these databases which
contain expert testimony to discover omissions;
Request To Produce
This database was formerly Depoconnect, and is endorsed by 52
trial lawyer associations world wide. It houses 137,000
depositions, and is the largest on-line bank of its kind in the
nation. One search gives you information on experts and topics
from 18 different databases.
Contact by phone or write local Trial Lawyers' groups.
Conduct a Westlaw or Lexis Search to see if the expert has been
disqualified in a State or Federal Court.
At a minimum, you must have the defense expert resume for your
research prior to the deposition. Further, consider generating
your usual duces tecum list as a formal document request to
avoid the argument that you have not given the
defendant/expert reasonable notice for the document
production since the rule of procedure allows 30 days.
Request copies of all documents provided to the expert, or
alternatively request that they be produced for review at the
Florida courts have consistently stated that an expert cannot
be compelled to produce nonexistent documents. Allstate v.
Pinder, 746 So. 2d 1255 (Fla. 5th DCA 1999). (4), but this does not
include testimonial histories. (See Orkin, supra.)
2. GENERAL HISTORICAL INFORMATION
There are many databases that can provide you with
generalized information about the expert you are researching.
We have highlighted the ones we utilize.
3. ACADEMIC TRAINING AND ACCOMPLISHMENTS
Google consistently turns up high-quality, highly relevant
results. You can utilize specific queries for a given expert, such
as "American Pediatric Neurological Organizations", and
broad-topic searches, such as "Medical Professional
Organizations". This database will also target a specific home
page. You can use plus or minus signs to include or exclude
keywords, or you can head to the Advanced Search page for
drop-down pick lists to construct complex searches.
The National Association of State Jury Verdict Publishers
(NASJVP) is an organization of publishers of Jury Verdict
Summaries from throughout the United States. These Publishers
collect detailed Civil Litigation information directly from the
attorneys who tried the cases, then write concise summaries,
which are used by attorneys and insurers for case evaluation.
Additionally, you will find attached to this site a Directory of
Expert Witnesses, which contains the names, area of expertise
and publication in which they were referenced. There is a
searchable database to locate experts and "Case Testified"
for use in the selection or challenge of an expert.
Write to ATLA members where your expert is located if your
expert is located out of state.
For a directory of ATLA members, go to
http://www.atlanet.org where there is a searchable
directory of members. Be aware that it is available to current
ATLA members only.
Write to local Medical Society for Applications.
To find the local association, go to the Florida Medical
Network http://www.floridamedicalnetwork.com where you
can search for organizations, directories and other useful
4. ETHICAL STANDARDS
Subpoena the expert's transcripts.
You should consider the timing of this request, since you may
want the expert to commit to a position during the deposition.
One member utilizing this research method reports that he
learned that a defense accident reconstruction expert had
attended school by mail.
Search for Board Certifications.
You can go to the American Board of Medical Specialties and
search by physician name, http://www.abms.org/ . General
databases of information will not include information
regarding the number of attempts at Board Certifications.
However, individual websites for medical specialties often do
provide more complete information, as well as practice
standards and guidelines. For example, the American Board of
Psychiatry and Neurology, Inc. website (www.abpn.com) walks a
subscriber through the process for requesting Board status
information and provides the request form online. The request
must be in writing and must be accompanied by the required fee.
www.certifieddoctor.org/ database containing of 24 Board
of Medical Specialties and names of those who have obtained
American Board of Medical Specialties, Lee Dockery,
Executive Vice- President,1007 Church Street, Suite
404,Evanston, IL 60201-5913
www.certifacts.org/ includes an annual subscription rate
and is a database containing Board Certifications, disciplinary
actions in one place rather than taking you to each individual
Request verification of license in writing
State Board of Licensing: Florida Board of Medicine/ Florida
Board of Osteopathic Medicine: 4052 Bald Cypress Way, BIN
C06, Tallahassee, FL 32399
General Website is
http://www9.myflorida.com/mqa/index.html and information
on ordering records and what records are available can be
found for the Florida Department of Health/Medical Quality
Verify that your adverse expert is NOT a Quack.
This database contains exhaustive lists of "quacks", FDA
warning letters, regulatory actions, and "nonrecommended"
sources of Health Advice.
Many professional organizations have ethical guidelines that
include standards for testimonial opinions. Knowing these
standards can prove helpful in establishing the bias of the
defense expert, especially if the expert is unaware that they
5. ARTICLES OF PUBLICATION
American Academy of Forensic Sciences
This organization has a written code of ethics included in its
bylaws. The American Academy of Forensic Sciences Bylaws,
Code of Ethics and Conduct, Art. II, Section 1 (1999). The code of
ethics prohibits the making of material misrepresentations of
education or data upon which their professional opinions are
American College of Emergency Physicians
The ACEP has established guidelines for expert witnesses.
These guidelines can be viewed at www.acep.org , and contain a
requirement that the expert witness be willing to submit his
deposition testimony to peer review. Further, false, fraudulent,
or misleading testimony can expose the physician to disciplinary
American Medical Association
The AMA Code of Ethics can be viewed on line at www.ama-assn.org and contains a fundamental ethical requirement that
a physician should at all times deal honestly and fairly with
his patients (E-8.12). Further, patients have a right to know
their past and present medical status and to be free from
mistaken beliefs concerning their condition. The Code of Ethics
is also published at Ann Emerg Med. 1997; 30:365-366 and was
approved in June 1997.
American Academy of Neurology
The AAN www.aan.com ethical guidelines have not yet been
published, but have been adopted.
Look for articles which the defense expert has authored or
co-authored in your subject area. Often articles of
publication are referenced on the expert's resume. Even when
they are not so referenced many can be obtained on the
6. HISTORY OF DISCIPLINARY ACTIONS OR HEARINGS BEFORE THE BOARD OF MEDICINE
This database can be found at
The PubMed database was designed by publishers of biomedical
literature as a tool to access and reference citations and
provide a link to full-text journal articles at the websites of
Publishers participating in the database electronically supply
their citations prior to or at the time of publication. User
registration, a subscription fee, or some other type of fee may
be required to access the full-text of articles in some
MD Consult Database can be found at www.mdconsult.com.
This database was founded by leading medical publishers that
include Mosby and W.B. Saunders. MD Consult integrates
peer-reviewed resources from over 50 publishers, medical
societies, and government agencies. From this site you can
obtain full text from 40 respected medical reference books
from a variety of specialties, 50 medical journals, and MEDLINE.
In addition you can obtain comprehensive USP drug information,
(beyond the scope of a PDR), and more than 600 clinical
practice guidelines. This is not a free service, but for a small
fee you can have access by the day, month or year. A free seven
day trial membership is available.
Research Service for Attorneys
If you are not confident in your research skills, you may want
to contact a medical information specialist to do this research
for you. Attorneys Medical Services, Inc. is an example of such
a service which can be located at http://www.attorneysmedicalservices.com. At this website you can locate articles and other
information to assist you in looking for medical-legal
information on the internet.
There are a number of databases available for
obtaining this information. Listed below are the
resources we chose to highlight for gathering this
7. PERSONAL LITIGATION
http://www.fdhc.state.fl.us/Inside_AHCA/index/shtml is a
resource for health care providers and consumers alike. This
directory is designed to provide quick and easy access to the
Agency for Health Care Administration's offices and bureaus.
reports that are generated as the result of patient or client
allegations and are public record. The site contains a listing
of only those claims in which an insurer made a payment to a
claimant to satisfy a judgment or reach a settlement.
Florida's professional liability reporting statute, section
627.912 doesn't apply to all licensed professionals or
institutions. The law requires only that three entities;
insurance companies, self-insurance funds and joint
underwriting associations, file reports of alleged error,
omissions or negligence by insured doctors, dentists, hospitals,
health maintenance organizations (HMOs), abortion clinics,
ambulatory surgical centers, crisis stabilization units and
lawyers. Some providers and institutions to which the statute
would otherwise apply, may have claims which do not appear in
this listing for various other reasons. For example, some may
not carry professional liability insurance; and, others may be
Another directory which contains reported insurance claims
can be found at www.claims.com.
This website includes claims gathered and published by Claims
Providers of America. This site also includes a database of
A database containing disciplinary action, malpractice suits
and current licensing of doctors and allied health
professionals can be found at www.docboard.org/.
Once in a while, you actually get lucky enough to find
that the defense expert was not at the Emergency Room
rendering treatment to your client because he was
stopped for a DUI violation, or her personal litigation is a
Search the local docket where your expert is located. Many
of the county clerk offices around the state have their docket
available online. The website www.flclerks.com will tell you
which ones are available online.
Make sure that you search both the Criminal and Civil dockets
and in the county where your expert lives. Search with name as
both Plaintiff and Defendant.
http://www.questionabledoctors.org/intro.cfm is a
comprehensive, publicly available databank that contains
information on doctors who have been disciplined by state
medical boards and federal agencies in the past ten years. It
contains data on disciplinary actions taken for medical
incompetence, wrongful prescribing of drugs, sexual
misconduct, criminal convictions, ethical lapses and other
Questionable Doctors, unlike other online databanks, allows
you to search for a doctor's name before you pay, and includes
information on multiple states.
Finally, we have compiled a general duces tecum list for the
medical expert deposition. We want to thank our fellow AFTL,
SATLA and ATLA members who helped compile the list. Consider
adding any of the following to your subpoena duces tecum for
deposition, and then SERVE the expert 30 days prior to his
Materials prepared for presentation at professional
meetings in your subject area.
Certificates, memberships, awards.
Patents held by expert or expert's employer (Statement of
Claims may recognize the hazard and what hazard the invention
is intended to ameliorate - (EXAMPLE - needle guard to prevent
perforation of vital organs).
A copy of your Ph.D. thesis.
Copies of Articles submitted for publication.
Copies of Abstracts submitted for publication.
Copies of requests and applications for continuing medical
education credits for seminars and courses attended.
Ask for reliable authorities rather than authoritative in
your subject area.
A copy of your license to practice medicine.
A copy of all documents provided to you for review in the
We hope that these articles will help you generate a checklist
for preparing for your next expert deposition. While in total
the recommendations may seem burdensome, it is intended to be a
guidepost to help you decide what works best for you. Good
Betsey T. Herd Admitted was to The Florida Bar in 1993 and to The Tennessee Bar in 1993. She earned a J.D. from the
Memphis State University College of Law . She also earned a master's degree in cardiovascular physiology from Wake Forest
University and holds an undergraduate degree from the University of Florida. Ms. Herd is a board member of the Academy of
Florida Trial Lawyers as well as a member of the Association of Trial Lawyers of America. At present she is a practicing
attorney with the Tampa, Florida law firm of Wagner, Vaughan & McLaughlin where she represents clients in a full range of
personal injury and wrongful death actions. Her firm's website is www.wagnerlaw.com and her e-mail address is
Janabeth F. Evans, R.N., R.N.C. has a degree in Nursing from Oklahoma State University and a Litigation Paralegal Certificate
from the University of Oklahoma Law Center. She was a nursing instructor for ten years and has been a medical legal
consultant since 1990. Ms. Evans is currently President/Owner of Attorney's Medical Services, Inc. in Marshall, TX. She
provides litigation support for attorneys across the United States and specializes in case reviews and Internet information
resources. Her website is http://www.attorneysmedicalservices.com and her e-mail address is firstname.lastname@example.org.
1 Mattek v. White, 728 So. 2d 200 (Fla. 1999) (Granting review and then
dismissing without opinion after Boecher, 733 So. 2d 993, at 735 So. 2d 1283
2 But see, Carrera v. Casas, 695 So. 2d 763 (Fla. 3rd DCA 1997) (Holding that
financial information within the 8 parameters first identified in Elkins v.
Syken, 672 So. 2d 517 (Fla. 1996) the information must be obtained from the
3 See Levy v. Lilly, 719 So. 2d 354 (Fla. 4th DCA 1998) (Example of
interrogatories deemed to be within the scope of Fla. R. Civ. Pro. 1.280(b)(4)).
4 See Sardinas v. Lagares, 805 So. 2d 1024 (Fla. 3rd DCA 2001) (Appellate
court refused to disturb trial court order compelling expert to produce
nonexistent documents where petitioner failed to allege irreparable harm
depriving the court of jurisdiction).