Covering Discovery

Medical, Property, Documents, and more!

Beyond Interrogs and Depos

• Medical Examinations

• Medical Records

• Inspection of Property, Documents, Things

• Requests for Admissions

Medical Examinations

• Elements of the Cause of Action?– Negligence, Breach of Duty– Damages?

• Elements of the Defense?– No duty? No breach?– Necessity, Impossibility, Waiver, Release, etc.

– CAUSATION??????

Hurdles

• Personal nature of medical care… courts hesitate due to privacy issues.

• Tests may be invasive and painful.

• Tests may be costly and time intensive.

• Tests could risk further harm. Safety?

“Good Cause”

• Good Cause means that there must be substantial reason for the exam. – Other sources of same or similar info?

– What if defendant is a corporation? Can we compel the corporation to compel its employees to be tested?

• Is that good public policy?

Consider…

• 5th Amendment Right against self-incrimination…

• 5th Amendment Due Process Rights…

• 1st Amendment Religious rights…

• Other rights?

“Independent”

• Treating Doctor?• No treatment?• Soft Tissue damages?• Treatment modalities…

– Chiropractic– Acupuncture– Reiki and Energy Fields– Massage– Prayer?

Selection of Examiner

• Conflict of interest• Licenses• Reputation• “Professional” witness?• Witness lists and special courts…

• What is the real goal? – Honest evaluation or prep for trial?

Scheduling

• Sooner is usually better, but…

• Long term injuries…

• Sufficient notice?

• If parties cannot agree, court will select time and place

Motion to Compel

• Grounds may concern:– Time– Place– Examiner– Scope of Examination– Manner of Examination

Objective or Subjective

• Scar

• Range of Motion

• Muscle Pain

• Headache

• Atrophy

• Disabled?

Common Tests

• X-rays• CT Scan (computerized tomography)• MRI• EMG• EEG• Myelograms• Angiogram• Diskogram• Psychometrics• ROM tests• Skin Sensory Tests• Lions, and Tigers, and Bears… oh my!

Words…

• Common vs Medical– What is…

• Standing, sitting, kneeling, lifting, breathing, medication, pain, frequent, occasional, periodic, disabled… sheesh!

• Flickering, quivering, pulsing, throbbing, beating, pounding, shooting, drilling, stabbing, sharp, cutting, pinching, itching, burning, tingling, sore, tender, radiating…

Inspection of Property

• “Inspect” means… ?

Real or Personal Property?

• Land

• Structures

• Recordings

• Documents

• Photographs… physical? Electronic?

• Vehicles

• Perishables

Fishing Expedition?

• Description of Property

• Time and Place

• Manner of Inspection

• Specific!

Formal?

• Informal written demand is OK, but any formal demand must be signed by attorney. Other correspondence can be signed by paralegal.

Requests for Admissions

• “Admit” sounds negative– Come on! ADMIT IT!

– “Genuineness”– Statements

• You said, “It is my fault.”

– Facts• It was raining.

Opinions

• Can you admit opinions?– Please admit that when you observed the

defendant at the scene of the accident in question, you observed that the defendant was intoxicated.

– Please admit that the sidewalk was slippery.– Please admit that the lumber delivered

complied with the specified grades and qualities.

Admit the Law?

• Admit that you were …– an employee– an agent– a relative– negligent– fired– absent without leave

Limitations

• Only served upon parties

• Only those in a position to admit the item– Seems obvious, but…

Responses

• Deny the request

• Admit the request

• Assert inability to admit or deny and explain reasons

• Qualified denial

• Object to request

Reasonable Inquiry

• Drive to the scene

• Build a model

• Reconstruct the airplane

• Read a document… set of documents…

• Search… how much?

• Raise the dead??