Friday, September 25, 2009

Depositions, Shmedreposition. . .

I was in WhiteBean, Our Home State defending a manufacturer of supermarket jello salad. Big Dennis, a former employee claims he hurt his back at work lifting jello cubes and as a result Big Dennis will never work again.

Big Dennis is a sweetheart, a 31 year old childlike, dark-complexion, hairy giant of a man who is in all likelihood, autistic--maybe, developmentally-delayed. I don't know--but, I deposed Big Dennis over the summer at his lawyer's office. While deposing Big Dennis was difficult, I've experienced witnesses fully in possession of intellect and educational achievement that have made less sense. The rules of civil procedure govern "discovery"--how you get information and how depositions of parties and witnesses. The rule relating to depositions provides that a person may review the transcript of the questions the lawyer asked and the answers he gave and make changes to the testimony as long as in each instance of a change the witness indicate why he is making the change. Generally speaking, most witnesses "waive" the right to do this--and those witnesses who preserve their rights will usually only make cursory changes, correcting spellings, mis-translations by the court reporter, although the rule does not limit the witness in any way as to the substance of changes they are entitled to make.

In Big Dennis' case I received 24 lengthy hand written changes: the changes frequently began with "Even though I said this, this is wrong..." The hand writing did not resemble the signature and because of information I had developed from Big Dennis, I concluded that what I received must have come from Big Dennis' Mom who according to other persons involved in the case--had involved herself in all aspects. I confronted opposing counsel about the Mother's self-involvement in the case and instead of agreeing to withdraw the changes argued with me that she was "only helping, Big Dennis." My motion to strike Mom's "testimonial changes" is pending before the court. We are set to begin trial on Tuesday Morning in the White Bean County Courthouse.

Yesterday I deposed Mom. Mrs. Pieceofwork has been married four times; she has the employment history of a vagrant; and, she freely acknowledged that she, not Big Dennis filled out he paperwork to initiate Big Dennis' injury claim; she, not Dennis provided the medical and injury history to the physicians who treated Big Dennis; she, not Dennis responded to the other "written discovery:" interrogatories and requests for production of documents; and, finally, she, not Dennis changed the deposition testimony as I suspected. At one point she described watching Dennis park his truck after work on the day that she says he injured himself--and, I asked her whether she also took the driver's license test for Big Dennis. I had accumulated every record I could get on Big Dennis' prior medical history and lo and behold, neither Big Dennis or his mother, disclosed ongoing treatment for the same medical condition claimed in the case pre-existing for many years prior to the injury and within weeks of the date of the so-called lifting incident. Furthermore neither Big Dennis or his mother disclosed two accidents injuring the back that pre-existed the claimed injury in this case.

Yesterday afternoon I drove out to a medical building to depose the orthopedist who treated Big Dennis. An expert witness in an injury case makes two important aspects of the Plaintiff's case: the expert provides a description of the condition that he finds upon examination; and the expert provides and opinion within a "reasonable degree of certainty" that the condition was caused by the injury. In this case Big Dennis' medical condition was caused by lifting at work.

Now I've had this happen a number of times in my career and if you're the lawyer proposing the witness this is an awful sensation. The lawyer, a veteran guy with an Andy Griffith North Carolina drawl tried to finesse the non-disclosed prior injuries and accidents but his expert wasn't biting. The doctor refused to related the condition to the claimed lifting incident. In the parlance of injury lawyers--this is called, "the doctor went south."

Case over.

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