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In When and How to Object During Deposition, Art of Advocacy blogger Paul Mark Sandler writes that in civil litigation, “objection-free depositions are unheard of.” Attorneys often make unnecessary objections or fail to make them properly when dealing with parties in the case and the opposing expert witness. Sandler says attorneys sometimes waive objections by failing to raise them in a deposition and offers some helpful guidelines for knowing when and how to object.

2. Incurable Defects

Many substantive objections cannot be resolved by a simple rephrasing. If an attorney asks about irrelevant matters, the questions will usually be objectionable no matter how the attorney poses them. For such an “incurable” defect, a timely objection is not necessary under Maryland Rule 2-415(g).

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In Preventable Medical Errors, medical expert witness Perry Hookman, M.D., writes that cancer outpatient medication errors may be more common than previously thought and asks “has the pendulum swung too far?”

The Implicit Message Communicated To The Public [i.e. Medical Malpractice Potential Jurors] Is That Many Drugs On The Market Are Neither Safe Nor Effective – And That Federal Drug-Safety Regulators Are Generally Incompetent.

Notwithstanding the above a decade’s worth of unprecedented drug recalls and other worrisome developments in drug safety or efficacy have appropriately pushed many journalists into aggressive coverage of pharmaceutical issues. The downside of the drumbeat of coverage, however, is the implicit message communicated to the public that many drugs on the market are neither safe nor effective – and that federal drug-safety regulators are generally incompetent,” reports Susan Dentzer [Dentzer S. “Communicating Health Care News-Pitfalls of Healthcare Journalism.” NEJM 2009,36[1]:1]

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In When and How to Object During Deposition, Art of Advocacy blogger Paul Mark Sandler writes that in civil litigation, “objection-free depositions are unheard of.” Attorneys often make unnecessary objections or fail to make them properly when dealing with parties in the case and the opposing expert witness. Sandler says attorneys sometimes waive objections by failing to raise them in a deposition and offers some helpful guidelines for knowing when and how to object.

1. What objections are necessary?

At a deposition, an attorney is required to object to those defects that are immediately curable–that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.

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In Preventable Medical Errors, medical expert witness Perry Hookman, M.D., writes that cancer outpatient medication errors may be more common than previously thought.

Adverse Drug Events [ADEs]

In a study by Hernández and Vargas (Adverse Drug Events in Ambulatory Care. NEJM.2003;349:303-305), of four primary care practices, the authors found that one-quarter of outpatients had adverse drug events during a three-month period. Of these events, 13% were serious, 39% were either ameliorable or preventable, and 6% were serious and preventable or ameliorable. Ameliorable adverse drug events were attributed to poor communication: the physician’s failure to respond to symptoms reported by the patient or the patient’s failure to report symptoms to the physician.

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In Evidence – Handle With Care, fire expert witness and Principal of PyroCop Inc., Robert Rowe writes:

“Spoliation of evidence” as defined in the National Fire Protection’s Guide to Fire and Explosion Investigations (NFPA 921), is “the loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation.”

“Spoliation” may occur when evidence is moved, modified, or destroyed during examination and/or destructive testing. Therefore, extreme care must be taken during the examination of a fire scene as any action on the part of the fire expert that impairs the opportunity of other interested parties (other fire experts, attorneys, etc.) to obtain the same “evidentiary value from the evidence.

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From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts

When it became clear by the 1980’s that hospitals were being built in rural areas, that demographic trends indicated sufficient medical staffing in rural areas, that mass communication and mass transit eliminated the disadvantages of isolation, that all U.S. physicians were held to the national standard for their respective specialty, then the original rationale for the locality and state rules had disappeared, and the courts began to rely on national standards for each given specialty.

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Insurance expert witness Jim Leatzow has been educating and insuring professionals about the risks to their businesses for twenty years. At Leatzow.com, he offers a glossary of jargon associated with risk management. Two of the terms defined are:

Cashechtomy Pronounced “Cash-ech-tomee” Sounding like a medical term, this is the procedure whereby plaintiff’s attorneys from the “dark side” intentionally name firms in lawsuits even though they are aware that the claim is groundless and that just filing the lawsuit will cause the person or firm being sued or their insurance company to have to cough up some money in order not to incur far more expense through the process known as “discovery”.

Fairness The term “fairness” has little place in the American civil court system. The fact that you can be sued even though you did nothing wrong isn’t fair but it happens every day. Plaintiff’s attorneys know this very well and sue everyone they can to extract some money (see Cashechtomy) to help fund the rest of the case that may or may not have merit. There is virtually no downside to a plaintiff’s attorney suing you as the courts rarely discipline or sanction those who bring such lawsuits. Remember, they are all lawyers and part of the same “good ‘ole boys club” which allows this nonsense to prosper.

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From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts
By the 1970’s, jurisdictions began modifying the locality rule. One problem the courts faced had to do with whether a medical specialist practicing in a rural area was in any way deprived of the conditions enjoyed by medical specialists practicing in urban areas where teaching centers were located. Their concern was that if the answer was yes, then eliminating the locality rule might discourage medical specialists from practicing in rural areas. Courts eventually decided to compromise and instead of adopting a national standard, they converted the locality rule to a state standard. But over time, it became clear that this made no sense because the standards were truly national standards, and so courts began abandoning the locality and statewide rule for all physicians.

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Insurance expert witness Jim Leatzow has been educating and insuring professionals about the risks to their businesses for twenty years. At Leatzow.com, he offers a glossary of jargon associated with risk management. Two of the terms defined are:

Claims-Made Insurance A policy written to cover claims “made” or brought during the present policy in effect, regardless as to when the “event” occurred, but subject to several terms including the “coverage period”. The coverage period begins with a Retroactive Coverage Date and continues to the latest Effective Date. If work was performed under a prior policy and those dates have been accepted by the replacement policy through the Retro Date, then the successor policy accepts the former work risk and exposure. Claims brought outside of that time period are generally excluded and denied. Prior policies that have been replaced will also deny coverage as coverage only applies to the policy in force at the time the “claim is made”.

Grace Period Extra time given to renew a life or health insurance policy. Grace periods DO NOT APPLY to property and casualty insurance.

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From the blog of medical expert witness Dr. Barry E. Gustin, MD, MPH, FAAEP:

Locality Rules and Qualifying Medical Experts

As medicine evolved, however, standards of practice slowly became homogenized across all communities, rural and urban. This happened because medical specialty and subspecialty organizations developed, and physicians were held to the same practice standards. Training became uniform, with all programs employing the same curriculum, using similar textbooks, and subjecting all doctors-in-training to the same qualifying exams, initially, and for recertification. Since the locality rule existed to essentially protect the country doc, the general practitioners who were not as well trained and did not have easy access to the latest medical knowledge and training, it did not apply to those medical specialists and subspecialists who claimed to have advanced training and unique skills. Thus, by the mid-1960’s, in most jurisdictions, these physicians were no longer able to invoke the locality rule when they were sued for malpractice. Instead, they were now required to meet a national standard of practice in their particular specialty. This marked the beginning of the end of the locality rule.

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