Discovery Depositions of Experts: A Good or Bad Thing?

In federal court litigation, it is routine practice for one party to take discovery depositions of the other party’s expert witnesses. In state court, however, the practice is much different. Under Pa.R.Civ.P. §4003.5, a party is entitled to discover the opinion of an opposing expert through interrogatories or the production of a written report, and absent a showing of “good cause,” no further discovery is permitted, including presumably oral depositions. Thus, experts in state court litigation are only going to be deposed when there is a court order compelling same or when the parties voluntarily agree to such discovery.

For lawyers handling medical malpractice cases, which is the better practice, the more restrictive state rule or the more liberal federal one? Here is the viewpoint from one plaintiff’s trial attorney.

There are some obvious benefits to deposing opposing physicians in a malpractice case. First, and most importantly, it gives each side a “preview” of the other expert’s testimony. From the plaintiff’s standpoint, this can be particularly useful in a situation where you have a good case, but either the defense does not share that belief or the doctor is refusing to give consent to settle. In such a circumstance, a pre-trial deposition may cause the defense to “see the light” and settle the claim. Second, if your expert has very little experience on the witness stand, a deposition provides him or her with the opportunity to get used to the question-and-answer format, and particularly leading cross-examination.

There are some disadvantages to expert depositions, however. For one thing, they definitely increase the cost of litigation. While the other side has to pay the expenses of deposing your expert, you will no doubt consult with your expert prior to the deposition and have to pay for that time. Also, once the defense deposes your expert, you may feel compelled to depose their’s, and you will have to pay for that deposition. Thus, total costs in the case increase, and in the overall scheme of things, increasing the cost of litigation probably works more to the detriment of the plaintiff than the defense.

Another disadvantage is that a round of pre-trial depositions adds an extra layer of imposition on the expert. For doctors who have busy clinical practices, the prospect of having to testify twice — once in discovery and again at trial — may be enough to dissuade them from getting involved in the case at the outset or, once having given a pre-trial deposition, they may be upset at the prospect of having to show up in a distant courtroom to say the same thing a second time. (How many of us have heard the old refrain “Do I have to come to court? Can’t you just use my report or my deposition?”) While admittedly this increased burden on the experts “cuts both ways,” i.e. it imposes on the defense physician as well as your own, I believe that increasing the time demands of litigation, like increasing the costs of same, inures more to the detriment of the plaintiff than the defendant. It is already more difficult for the plaintiff than the defendant to get doctors involved as experts in litigation, and any added burdens will only aggravate that disparity in access to testimony.

Finally, while pre-trial depositions will educate counsel about the opposing party’s case and force them to advance their preparation timetable on the case, consider who profits more from that phenomena, the plaintiff or the defense. Generally speaking, it is the party who is further behind in their trial preparation as of the date of the deposition, i.e., if one attorney is already at step 9 in a case with a 10-step “learning curve” and the opposing counsel is only at step 4, the opponent will benefit more from the round of depositions. In most instances, the plaintiff’s lawyer probably is more prepared and knows the case better than the defense attorney during discovery, if for no other reason than he or she has lived with the case longer than the defense has. Thus, discovery depositions are going to help the defense more often than they help the plaintiff.

So, in the end, if we are casting ballots, here’s my vote in favor of the state court practice and against making pre-trial depositions standard fare in medical malpractice litigation.