by Mark Crane
Modern litigation is composed primarily of the “discovery” process, and the most visible—and arguably most important—component of the discovery process is the deposition. This article provides an overview of depositions in the context of life sciences products liability cases, including an introduction to the different types of depositions taken in these cases. As we’ll see, although all depositions are ostensibly fact-finding exercises, the true objectives of a deposition vary based on the type of witness being deposed. Understanding the nature and significance of each unique type of deposition is essential to taking (or giving) an effective deposition.
At the most basic level, depositions are formal question-and-answer sessions in which attorneys propound questions to parties (including representatives of corporate parties), other fact witnesses, medical witnesses, and expert witnesses for the purpose of “discovering” information relevant to cases. The testimony is transcribed by a court reporter, who prepares an official transcript. In modern litigation, particularly in complex and high stakes cases, depositions are frequently video recorded as well. In fact, video recording depositions of certain types of deponents, including representatives of corporate representatives, has become the rule, rather than the exception, meaning that a corporate representative faces the daunting prospect of a permanent audio and video record being made of every word of her testimony as well as every nuance of her tone, appearance and communication style.
There are two basic ways in which testimony obtained at deposition may subsequently be used in litigation. The traditional way in which depositions are used at trial is to “impeach” a witness who makes a statement in his trial testimony that directly contradicts his deposition testimony. In this situation, the contradictory testimony given at deposition may be read or played to the jury to demonstrate the inconsistency. In some circumstances deposition testimony may also be read or played to the jury as affirmative evidence. For example, a court may allow a plaintiff suing a drug or device manufacturer to play for the jury, as part of plaintiff’s evidence, all or part of a video deposition taken of a representative of the manufacturer during the discovery process—even if the representative is available to testify live at trial. The rules controlling when and whether depositions may be introduced as affirmative evidence at trial (not merely to impeach a witness) differ widely by jurisdiction and are far too complex and varied to address in this article. It is fair to say, however, that modern procedural rules and trial practice are trending toward allowing much more liberal use of deposition testimony at trial.
The rules governing discovery, including depositions, are designed to create an open, unobstructed process for discovering relevant facts and opinions in advance of trial, so that the parties are well-informed regarding the facts of the case and not “ambushed” by unexpected evidence at trial. For this reason, the scope of inquiry allowed in discovery depositions is quite broad. The questioner is not limited to exploring “admissible evidence” as she would be at trial, but instead is allowed to interrogate the deponent on any subject matter “reasonably calculated to lead to the discovery of admissible evidence,” a highly permissive standard. A core principle behind the modern pretrial discovery process is the notion that once the parties gain a clear picture of the relevant information in the possession of the opposing party and third parties, they will be able to evaluate the case objectively and, hopefully, reach an amicable resolution without proceeding to trial. The fact that the vast majority of cases are resolved prior to trial suggests that the system, whatever its flaws, usually does help achieve this goal.
All depositions include an element of information-gathering, but, in reality, the discovery of facts and opinions is only one of many different objectives attorneys may pursue in a deposition. These objectives vary based on the type of witness being deposed. Understanding what goes on in depositions requires an understanding of the unique nature of each of the different types of depositions taken in life sciences products liability cases. This article examines the significance, objectives, and keys to taking (or giving) an effective deposition in the context of the four main types of witnesses typically deposed in life sciences products liability cases: plaintiff and other fact witnesses, corporate representatives, treating medical witnesses, and expert witnesses.
Significance to the Case
Depositions of the plaintiff and other fact witnesses, such as friends and family members of the plaintiff (or of the decedent in wrongful death cases), reveal the underlying fact pattern of a case, including the context and manner in which the subject drug or medical device was used, the interactions of the plaintiff with the prescribing physician and other medical personnel (from the plaintiff’s perspective), the nature of the injuries claimed, the details of how the injuries have impacted the plaintiff, and the damages claimed (pain and suffering, disability, lost wages, etc.). Ironically, in life sciences products liability cases the plaintiff’s deposition may be relatively unimportant on liability issues, since questions relating to the design of a drug or device or the warnings provided to a prescribing physician are outside the realm of a lay witness’s competency to testify. It really doesn’t matter whether the plaintiff himself considers a device to be defective or the labeling to be inadequate. However, the plaintiff’s deposition testimony may provide important history relevant to use of the drug or device, and is critical to understanding and evaluating the nature and scope of the damages claimed.
More than any other type of deposition, depositions of plaintiffs and lay fact witnesses are, first and foremost, true “discovery” depositions; that is, the primary purpose is to gather information and uncover and understand the factual circumstances giving rise to the claim and the alleged damages. If nothing else is accomplished in the deposition of a plaintiff or other fact witness, at a minimum the deposition should eliminate the possibility of encountering any major surprises in the witness’s trial testimony. In addition, the deposition provides an opportunity—often the only opportunity—to evaluate the plaintiff or other witness and the extent to which a jury is likely to find her sympathetic and persuasive. Yet another goal of the deposition of a plaintiff or fact witness—although not typically the central focus—is to explore, test, and, when appropriate, challenge testimony that is inconsistent with records or other evidence, or with basic logic or common sense. While plaintiff and fact witness depositions are predominantly fact-gathering exercises, the interrogating attorney must, as in any deposition, be prepared to challenge “suspect” testimony.
Keys to an Effective Deposition
Thorough examination is the key to an effective fact witness deposition. For the plaintiff’s deposition, in particular, a structured, logical and detailed-oriented approach to examination of the witness is vital to ensure that the full scope of the witness’s potential trial testimony is discovered. The deposition should exhaustively explore the witness’s knowledge regarding the relevant factual and medical history, the manner and circumstances in which the drug or device was used, the details of interactions with the prescribing physician and treating medical personnel, and the complete litany of injuries, damages and other woes the plaintiff intends to present to the jury. To be properly prepared for the deposition and familiar with the background of the case, the defense team should obtain meaningful written discovery responses and, if possible, the plaintiff’s medical, employment and other relevant records prior to the deposition. In the deposition itself, the style employed by the interrogating attorney can be important in determining how open and expansive the witness’s testimony will be. A flexible approach is best, maintaining a professional yet cordial tone to put the witness at ease and encourage open, unguarded testimony, while ratcheting up the intensity when appropriate to confront and challenge the witness regarding any testimony that seems questionable or less than candid.
Significance to the Case
Corporate representative depositions frequently turn out to be the most important depositions taken in a products liability case. Unfortunately, this is usually because the deponent has inadvertently provided testimony that hurts his own company and bolsters the plaintiff’s case. Mistakes and concessions made by company witnesses (including former company employees) at deposition may limit or seriously undermine the credibility and substance of the company’s defense. And the damage may not be limited to the case in which the deposition is taken. Admissions in a corporate representative’s deposition can be, and frequently are, used against the company in future cases involving the same drug or device. Once a deposition blunder is engraved in a formal transcript, the bell cannot be unrung, and may continue to sound in future litigation, for years to come. Worse yet, the pitfalls of a corporate representative’s deposition are not limited to the substance of the testimony given. Because the corporate representative is the “face of the company,” video deposition testimony depicting an arrogant, insensitive or insincere corporate witness can turn a jury against the company, even if his testimony contains no catastrophic admissions. Conversely, effective deposition testimony from a likeable corporate deponent sends a message to plaintiff’s counsel that the company will present a positive image and persuasive “company story” at trial, which can impact plaintiff’s counsel’s view of the case and its settlement value.
The corporate representative facing a deposition in a products liability case would be wise to consider the physician’s Hippocratic Oath: “First do no harm.” Indeed, the foremost objective is to avoid serious mistakes and unintended admissions. If the deposition is video recorded it is also important to avoid projecting an unsympathetic image to a jury that may have the opportunity to view the deposition at trial. Ideally, the witness will be able to do more than just step around and over the proverbial "doggy doo", as there are several affirmative goals to be pursued in a corporate representative’s deposition as well. These include advancing the company’s key defense themes, providing testimony that is consistent with, and therefore supportive of, the other testimony and evidence produced by the company, and demonstrating to the plaintiff’s attorney that the representative will be a formidable trial witness and the defendant drug or device manufacturer will be tough to defeat at trial.
Keys to an Effective Deposition
Comprehensive preparation of the corporate representative is critical, and should cover at least three discrete areas: general presentation and communication skills in the context of a deposition (being able to testify in a confident and persuasive manner and provide concise but responsive testimony); the substantive topics likely to be covered (being familiar with all relevant facts and documents on which the witness will be questioned); and the key defense themes in the case (being well-versed in the “company story” that the corporate defendant plans to present to the jury at trial). Proper preparation requires devoting adequate time—potentially meeting with the witness over multiple days—and, preferably, beginning the deposition preparation process well in advance of the date of the deposition. Meeting with counsel for a couple of hours immediately prior to giving the deposition is not sufficient. It is also important that the deponent understand that, although she should endeavor to offer testimony that is consistent with the company’s central defense themes, she should not try to “win the case” at deposition by offering statements or opinions beyond her personal knowledge or expertise or outside the scope of the questions asked. Such overreaching is unnecessary and likely to backfire.
Significance to the Case
Depositions of treating physicians (including the physician who prescribed the subject drug or medical device) and other medical personnel feature elements of both fact witness depositions and expert witness depositions. Treating physicians are unquestionably important fact witnesses. They are typically the primary source of information regarding the plaintiff’s medical condition (history given, symptoms reported, objective findings, results of tests and radiology, nature and scope of treatment rendered, treatment outcomes and the plaintiff’s current or last known condition), and regarding the use of the subject drug or device in the plaintiff’s treatment (including the prescribing physician’s general protocols and past experience in using the drug or device, her knowledge of relevant labeling and warnings, her interactions with sales reps, and the specific details of how she used the drug or device in treating the plaintiff. The prescribing physician’s deposition also provides vital information that can determine whether a defendant manufacturer is able to utilize the “learned intermediary doctrine,” a potential defense that may protect a manufacturer that has provided adequate warnings of relevant risks to the physician (even when the physician chooses not to pass on the warnings to the plaintiff/patient).
On the other hand, in addition to providing key fact testimony, treating physicians and other medical witnesses may also offer expert witness testimony that dramatically impacts the case. The types of opinions treating physicians may offer at deposition can be divided into two areas. The first consists of opinions inherently related to the physician’s treatment of the plaintiff, such as her diagnosis, prognosis, projections of future disability and future, and opinions on causation, including opinions as to whether the use of the subject drug or device caused or contributed to cause the plaintiff’s alleged injuries. The second area includes opinions on liability issues in the case, which the treating physician may or may not choose to address—topics such as whether warnings provided by the manufacturer were adequate, or even whether the design of the drug or device or its labeling was “defective.” Some treating physicians shy away from such subjects while other are eager to weigh in, even on subjects they likely are not qualified to address and on which they might not be permitted to offer opinions at trial.
The dual nature of the treating physician deposition demands a twofold set of objectives. Because physicians and other medical providers are key fact witnesses, the first goal, as with other fact depositions, is effective information-gathering, including thorough exploration of the relevant medical facts to discover the witness’s prospective trial testimony, as well as challenging any fact testimony that is contrary to the medical records, runs afoul of established medical principles, or is internally inconsistent. Because any medical witness is also a potential expert witness at trial, an equally important objective, as with retained expert witnesses (see below), is to uncover the details and bases of all opinions the witness is prepared to offer at trial, and to test, challenge, and hopefully undermine any adverse opinions—particularly those relating to causation and liability issues.
Keys to an Effective Deposition
Effective preparation for the deposition of a treating physician requires familiarity with the medical records and underlying facts disclosed in the relevant documents, depositions and other evidence, as well as appropriate background research to develop a working knowledge of the relevant medical concepts and pertinent medical literature pertaining to the plaintiff’s alleged injury or condition and the extent to which it is associated with use of the subject drug or device and other alternative causes. In deposing a treating medical witness it is best to “expect the unexpected,” anticipating a wide array of potential opinions, and being prepared for the very real possibility that the physician may “stretch” her testimony to be helpful to her patient and/or aggressively attack the drug or device manufacturer in order to deflect blame from herself. The treating physician’s deposition demands a flexible, dynamic approach, since the physician may turn out to be a predominantly neutral fact witness, a “friendly” witness offering opinions helpful to the defense case, or a de facto expert witness for the plaintiff, rendering scathing opinions regarding the “defective” nature of the subject drug, device or warnings. Hence, the questioner should be prepared to adapt his style of examination from the more open-ended, “friendly” questioning appropriate for a friendly or truly neutral witness to the more focused and aggressive cross-examination required to explore and challenge fully the basis and details of an adverse expert’s opinions.
Significance to the Case
In life sciences products liability cases, expert witness testimony is critical to core issues of medical causation and adequacy of the product’s design and warnings, since experts are normally the only witnesses permitted to offer opinions on such issues in cases involving complex drugs, devices, and medical issues. The outcome of a case may turn on the question of which side’s experts the jury finds more persuasive and credible. Punching holes in an expert’s testimony and credibility at deposition lays the foundation for discrediting the expert at trial, which, in turn, reflects adversely on the overall credibility of the party who retained the witness.
Objectives The most fundamental purpose of any expert deposition is to identify and understand the full scope of the opinions the expert intends to offer at trial and everything on which those opinions are based, leaving no room for any surprises in the expert’s direct testimony at trial. When deposing an adverse expert, however, the questioner must also go beyond mere information-gathering by aggressively testing, challenging, and, where possible, undermining the expert’s opinions. Every effort should be made to elicit concessions and helpful admissions that limit the scope and effectiveness of the witness’s testimony, provide a “blueprint” for safe but effective cross-examination at trial, and provide a basis to impeach the expert at trial if he attempts to retreat from admissions “locked in” at deposition. An expert’s deposition also provides a valuable opportunity to evaluate the expert’s credibility, communication skills, and overall effectiveness as a witness—factors that may be helpful in assessing the potential for an adverse verdict and the settlement value of the case.
Keys to an Effective Deposition
Effectively deposing a retained expert witness requires sheer persistence in methodically drawing out the full scope, details, and basis of each opinion the expert is prepared to offer at trial. Patience and effective examination skills are necessary to prevent the expert from evading and equivocating—tactics frequently associated with experienced expert witnesses. The attorney should also be extremely familiar with the facts of the case (which generally have been well-developed in discovery by the time the litigation progresses to the expert deposition phase) and her knowledge of the relevant documents, deposition testimony and other evidence should be superior to the expert’s own knowledge of the case—which, in many cases, will be fairly superficial. Proper preparation also requires developing a working knowledge of the pertinent medical, scientific or engineering principles involved and relevant medical or scientific literature (as discussed above in connection with treating physician depositions). In deposing a plaintiff’s expert witness it is also advisable, when feasible, to consult corporate in-house experts or retained defense experts in the same field for assistance in developing cross-examination strategy and even specific lines of questioning. Finally, the expert’s background, history and previous testimony should be researched prior to the deposition to identify additional fodder for effective examination. Armed with superior knowledge of the case, familiarity with the relevant medical, scientific or engineering concepts, input from defense experts and information on the expert himself, the questioning attorney will be well-positioned to thoroughly explore and fearlessly attack the expert’s credibility and bias, as well as the inevitable flaws, gaps and weaknesses in his opinions.
At a basic level, a deposition is a straightforward process through which parties “discover” relevant facts and potentially admissible evidence. In reality, however, the nature, significance, and objectives pursued in depositions taken in life sciences products liability cases vary according to the type of witness being deposed. Plaintiff and fact witness depositions are, for the most part, focused primarily on uncovering relevant facts giving rise to the case and defining the parameters of the plaintiff’s claim. Corporate representative depositions are typically treated by plaintiff’s attorneys as vehicles for eliciting admissions and tricking company witnesses into giving testimony that supports the plaintiff’s case, undermines the company’s defense, and casts the company in an unflattering light. At the same time, a corporate representative’s deposition can be an opportunity for the company to advance its defense themes and demonstrate to plaintiff’s counsel that it will mount a strong and persuasive defense at trial. Depositions of treating physicians have a dual nature, as they provide the venue for discovering key fact testimony regarding the plaintiff’s medical condition and treatment, but also involve expert testimony. Treating physicians can become de facto experts for the plaintiff, in which case they must be aggressively cross-examined the same as any other adverse expert. While depositions of adverse expert witnesses still involve an element of information-gathering, it is also critical to aggressively challenge the expert and elicit admissions and concessions to form the basis of a trial cross-examination that will undermine the expert’s opinions and credibility.
Understanding the different types of depositions, the significance of each to the successful defense of the case, and the different objectives to be pursued in each type of deposition is critical to effectively preparing for and taking (or giving) a deposition in a life sciences products liability case.
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