PRACTICE POINTERS
By Brian Wojtalewicz and T. Joseph Crumley
Deposition Of Adverse Doctor Before Your Treating Doctor Deposition?
Member Robert Edwards of Anoka recently initiated an excellent practice pointer discussion concerning trial testimony depositions of doctors. Approaching a recent jury trial, Bob was pleased to have the defense adverse examiner deposition scheduled before his treating doctor’s deposition. However, he sensed that the very experienced defense attorney actually wanted this arrangement, and Bob is now convinced of it. During the later deposition of plaintiff’s doctor, defense counsel repeatedly objected, claiming the testimony was outside the scope of expert disclosures and extremely prejudicial. During the argument at the jury trial, defense counsel backed up his arguments with the fact that his doctor’s deposition testimony had already occurred, so he couldn’t respond. The trial judge agreed with defense counsel, excluded several points of the treating doctor testimony. Bob recommends that plaintiff attorneys avoid this situation, by carefully insisting on their treating doctor deposition occurring first, even having the court include it as part of the scheduling order.
Other experienced practitioners have disagreed. While they agree with Bob on the real danger he experienced, they still believe that the treating doctor testifying second allows them to more effectively counter the attacks of the adverse examiner. The key, of course, is to anticipate the defense medical attacks, and have those at least minimally addressed in your expert disclosure letter or interrogatory answers.
Another member pointed out that if you are able to have your treating doctor testify live in the courtroom, defense counsel’s willingness to object will likely be dampened by the fear of appearing as an obstructionist to the jury.
Just in case you worried about Bob and his client in this recent case, fear not. The jury returned a verdict totaling $500,677 on a “soft tissue only” car crash case. It included $105,000 for past pain and partial disability, $215,000 for future pain and partial disability, and $130,100 for future medical treatment. The plaintiff turned down a $50,000 offer before trial, and a $200,000 offer during trial! Members on our MTLA No-Fault ListServ received the advantage of much more detail about this case from Bob.
Blindsided At Trial By Withdrawal Of Defense Doctor
Several members recently reported defense counsel at the jury trial advising them and the judge of their decision to not use the testimony of their adverse examiner. One member unsuccessfully attempted to have the report of the adverse examiner introduced as evidence. Defense counsel raised the objection of hearsay and not a medical record. Member William Maddix offered the following case, which allowed the report of the adverse expert witness: Kreppel v. Guttman Breast Diagnostic Institute, Inc. ( U.S. Dist. Ct., S.D. New York , 12-21-99; 1999 U.S. Dist. LEXIS 19602).
Another member reported a Ramsey County judge erroneously preventing plaintiff counsel in summation from raising the failure of the defense to call this doctor. The judge compounded the damage by denying the admissions of the doctor, or the cross exam of another doctor about the absent doctor’s report.
Member Paul McCarten of Alexandria pointed out his case of Wussow v. Western National Mutual Ins., Minn. Ct. of App. unpublished, 5-20-97, File CX-96-2031, where the trial judge allowed the plaintiff to testify that she attended a medical examination at the request of Western National, that she gave the results of it to her treating neurologist, and the treating neurologist was allowed to testify that he was aware that this medical exam took place, and that he reviewed the doctor’s report of it.
Member Rich Ruohonen aptly pointed out that JIG 12.35 on “Failure To Produce Evidence -- Inference” provides the caselaw authority on the key point: “An adverse inference may be drawn by the jury if a party fails to produce a witness or evidence within the party’s power to produce when the witness or evidence would more naturally favor that party.” [Case citations omitted] While the JIG committee recommended that no instruction be given on this point by the court to the jury, it provides the clear authority for getting the minimal facts into evidence and allowing counsel to argue it in summation.
An earlier practice pointer described another tack in this context. As soon as plaintiff’s counsel receives that very rare item, an adverse examiner report that is favorable to the plaintiff, counsel should immediately serve requests for admissions upon the defense attorney. The admissions should include all of the favorable opinions by the adverse examiner, along with his identity, his curriculum vitae, and the fact and date that plaintiff saw this “independent” medical examiner. There is caselaw backing up the submission of these admissions to the jury. (Check with MTLA’s invaluable brief bank.)
Wrongful Removal Of A Judge
A member recently reported that opposing counsel filed a notice to remove a trial judge, after the judge had already made a favorable ruling on a motion for the case. Member Kevin Wetherille of Shakopee warned that if you fail to object to such a wrongful attempt at removal, a judge may grant the request. MRCP 63.03 specifies that no such notice may be filed once a judge has presided at a motion “or any other proceeding which the party had notice. . .” Why would a judge or court allow an erroneous attempt at removal? In my opinion, a judge may not be aware of the specifics of the rule, or it could be granted by bureaucratic inadvertence, or a particular judge might see an easy way to avoid a “nightmare” case. Regardless of why it could happen, a good practitioner shouldn’t depend on the court system to defeat the erroneous attempt on its own.
Not Quite “Next-Of-Kin”
A member recently encountered a potential injustice in the context of a wrongful death case. “The decedent’s spouse had a 14 year old adopted daughter who had not been adopted by the decedent, but he had intended to do so. The decedent was very close to the adopted child and had been supporting her with family income. The [wrongful death statute] does not appear to provide this child with any recovery as she is not a blood relative or adopted by the decedent. Is there any way that she may be able to receive some recovery?” Member Terry Wade, once again, came through with excellent advice. In this context, he has declined to ask the court to approve a direct distribution to a person outside the wrongful death statute. He recommends having the primary beneficiary (in this case the child’s mother) set aside whatever sum she deems appropriate after the distribution. Because the mother would be the main source of support for this child anyway, this would provide her with the most flexibility on use of the funds for the child’s immediate and future support. Even if you could convince a judge to order part of the distribution despite the statute, the funds would likely have to go into a structured settlement that can severely hamper access to the funds for very legitimate purposes of the child.
