Covering Discovery
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Transcript of Covering Discovery
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??