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Covering Discovery

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  1. Covering Discovery Medical, Property, Documents, and more!

  2. Beyond Interrogs and Depos • Medical Examinations • Medical Records • Inspection of Property, Documents, Things • Requests for Admissions

  3. 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??????

  4. 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?

  5. “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?

  6. Consider… • 5th Amendment Right against self-incrimination… • 5th Amendment Due Process Rights… • 1st Amendment Religious rights… • Other rights?

  7. “Independent” • Treating Doctor? • No treatment? • Soft Tissue damages? • Treatment modalities… • Chiropractic • Acupuncture • Reiki and Energy Fields • Massage • Prayer?

  8. 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?

  9. Scheduling • Sooner is usually better, but… • Long term injuries… • Sufficient notice? • If parties cannot agree, court will select time and place

  10. Motion to Compel • Grounds may concern: • Time • Place • Examiner • Scope of Examination • Manner of Examination

  11. Objective or Subjective • Scar • Range of Motion • Muscle Pain • Headache • Atrophy • Disabled?

  12. 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!

  13. 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…

  14. Inspection of Property • “Inspect” means… ?

  15. Real or Personal Property? • Land • Structures • Recordings • Documents • Photographs… physical? Electronic? • Vehicles • Perishables

  16. Fishing Expedition? • Description of Property • Time and Place • Manner of Inspection • Specific!

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

  18. Requests for Admissions • “Admit” sounds negative • Come on! ADMIT IT! • “Genuineness” • Statements • You said, “It is my fault.” • Facts • It was raining.

  19. 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.

  20. Admit the Law? • Admit that you were … • an employee • an agent • a relative • negligent • fired • absent without leave

  21. Limitations • Only served upon parties • Only those in a position to admit the item • Seems obvious, but…

  22. Responses • Deny the request • Admit the request • Assert inability to admit or deny and explain reasons • Qualified denial • Object to request

  23. Reasonable Inquiry • Drive to the scene • Build a model • Reconstruct the airplane • Read a document… set of documents… • Search… how much? • Raise the dead??