Depositions and trial · 8 min
Preparing a nursing home expert for deposition
The deposition of a long-term care expert follows predictable lines. Most of the damage happens in the file, not in the testimony.
Get the file right first
In federal court, a testifying expert's report must contain the facts or data considered, and the materials considered are generally discoverable even where draft reports and most attorney-expert communications are protected. State practice varies and is sometimes broader. Decide early what goes into the expert's file, confirm what the expert has retained, and make sure the materials list in the report matches the contents of the file. A surprise document in the file is a worse problem than a difficult opinion.
Cover these before the deposition
- The opinions, stated in the fewest words that remain accurate, and the specific record evidence supporting each
- The scope of the assignment and everything the expert was not asked to address
- How the regulations relate to the standard of care in this venue, and how to answer without overstating
- The weak facts, including the chart entries and comorbidities that cut against the opinion
- Prior testimony: list of cases, any prior opinions on similar facts, and any exclusion history
- Compensation: hourly rates, total billed to date, and what portion of the expert's income comes from testimony
- The demonstratives or timelines the expert intends to rely on
Lines of attack to expect
| Question line | What the expert should be ready to do |
|---|---|
| You are not a physician, so you cannot say what caused this | Stay inside the standard of care and let the causation expert own causation. |
| A regulation is not the standard of care | Explain how the regulation reflects accepted practice, without claiming it decides negligence. |
| When did you last work in a facility | Give dates and roles plainly, including consulting and survey work. |
| You are paid by the plaintiff | State the rate, that the fee is for time, and that it does not depend on the outcome. |
| Isn't it true this resident was at high risk regardless | Acknowledge risk, then distinguish risk from the facility's obligations in the face of it. |
| You did not review the entire record | Identify what was reviewed, why it suffices, and what would change the opinion. |
Habits that hold up
Answer the question asked and stop. Ask for the document before testifying about it. Say 'I do not know' where that is the honest answer. Do not argue with counsel or defend the client's case beyond the expert's own opinions. Long-term care juries respond to witnesses who sound like the person who ran the building, not like an advocate.
After the deposition
Have the expert read the transcript for errata promptly, note any answer that needs clarification at trial, and update the case list if a new engagement began during the pendency. Then decide whether the deposition changed the shape of the case, because in long-term care it frequently does.
This page is educational and is not legal advice. Regulatory citations reflect CMS State Operations Manual Appendix PP and 42 CFR Part 483; confirm the version in effect for your matter.
