Attacking Plaintiffs’ Malpractice Experts

John T. Sly and Christina N. Billiet from Waranch & Brown write an article for the Maryland Defense Counsel newsletter about how to best attack plaintiffs’ experts out of the gate. One key tactic they advise is trying to get two depositions of the plaintiffs’ medical expert. Interestingly, they name drop the judges they say have approved this tactic and ordered plaintiffs’ experts to sit through two depositions: Judges Leo E. Green and Thomas P. Smith, both in Prince George’s County.

>I don’t think many judges are going to require experts to sit through two depositions. Why? Because it makes no sense. If the expert’s qualifications are inadequate which, let’s face it, is rare, you have plenty of time to expose the expert. Or feel free to expert witnessnote his deposition the day you get the certificate of merit. But you only get one bite of the apple. The article never explains why two depositions. The authors write:

Although this tactic is unusual, it finds support in the plain language of the relevant legislation. Section 3-2A-04(b)(3)(ii) of the Act states that “discovery is available as to the basis of the certificate.” Maryland Rule 2-401(a) provides that parties may obtain “discovery” by conducting depositions upon oral examination or written questions. Read together, these provisions support the position that a certifying expert can be deposed early in litigation with regard to their certificate and report, and then again in the regular course.

Read together, this means you can take two depositions? Couldn’t/shouldn’t it just mean, “Feel free to ask the expert at dep about their opinions?”
I’m also not sure it is the best idea to name drop judges who have issued opinions in your favor. When we post court orders on our website, we delete the names of judges. Why? Because the judge is basically writing a public opinion without any context. Who knows the facts of these cases? Maybe there were compelling reasons beyond these arguments that were specific to the facts in those cases.

This is a well written article and worth reading for Maryland malpractice attorneys on both sides of the v. I just disagree with the conclusions.

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