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Preparing in Advance for the Medical Expert's Deposition
By Betsey Herd, J.D., M.A. and Janabeth Evans, R.N., R.N.C.

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 expert deposition.

1. FORMAL DISCOVERY REQUESTS
Expert Interrogatories

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 insured.

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;

  1. http://www.trialsmith.com

    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.

  2. Contact by phone or write local Trial Lawyers' groups.

  3. Conduct a Westlaw or Lexis Search to see if the expert has been disqualified in a State or Federal Court.

Request To Produce

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 deposition.

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.

  1. http://www.google.com

    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.

  2. http://www.juryverdicts.com

    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.

  3. 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.

  4. 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 information,

3. ACADEMIC TRAINING AND ACCOMPLISHMENTS
  1. 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.

  2. 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.

    1. www.certifieddoctor.org/ database containing of 24 Board of Medical Specialties and names of those who have obtained Board certification.

    2. American Board of Medical Specialties, Lee Dockery, Executive Vice- President,1007 Church Street, Suite 404,Evanston, IL 60201-5913

    3. 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 medical specialty.

  3. Request verification of license in writing

    1. State Board of Licensing: Florida Board of Medicine/ Florida Board of Osteopathic Medicine: 4052 Bald Cypress Way, BIN C06, Tallahassee, FL 32399

    2. 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 Assurance at http://www9.myflorida.com/mqa/clientserv/clintserv.htm.

  4. Verify that your adverse expert is NOT a Quack.

    www.quackwatch.com/index.html

    This database contains exhaustive lists of "quacks", FDA warning letters, regulatory actions, and "nonrecommended" sources of Health Advice.

4. ETHICAL STANDARDS

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 exist.

  1. 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 based.

  2. 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 action.

  3. 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.

  4. American Academy of Neurology

    The AAN www.aan.com ethical guidelines have not yet been published, but have been adopted.

5. ARTICLES OF PUBLICATION

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 internet.

  1. Pubmed Database

    This database can be found at http://www.ncbi.nlm.nih.gov/PubMed/.

    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 participating publishers.

    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 journals.

  2. 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.

  3. 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.

6. HISTORY OF DISCIPLINARY ACTIONS OR HEARINGS BEFORE THE BOARD OF MEDICINE

There are a number of databases available for obtaining this information. Listed below are the resources we chose to highlight for gathering this information.

  1. 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.

  2. http://www.doi.state.fl.us/Data/Liability/ contains 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 self-insured.

  3. 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 expert witnesses.

  4. A database containing disciplinary action, malpractice suits and current licensing of doctors and allied health professionals can be found at www.docboard.org/.

7. PERSONAL LITIGATION

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 mile long.

  1. 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.

  2. 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 offenses.

    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 deposition.

  1. Materials prepared for presentation at professional meetings in your subject area.

  2. Certificates, memberships, awards.

  3. 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).

  4. A copy of your Ph.D. thesis.

  5. Copies of Articles submitted for publication.

  6. Copies of Abstracts submitted for publication.

  7. Copies of requests and applications for continuing medical education credits for seminars and courses attended.

  8. Ask for reliable authorities rather than authoritative in your subject area.

  9. A copy of your license to practice medicine.

  10. A copy of all documents provided to you for review in the subject case.

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 luck!

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 betsey@wagnerlaw.com

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 jana@attorneysmedicalservices.com.


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 (Fla. 1999)).

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 expert.

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).

© 2003, Betsey Herd and Janabeth Evans. All rights reserved.
The above article may not be reproduced in whole or in part without the express written consent of the author.












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