The deposition of defense expert in traumatic brain injury case is critical.  To cross examine the defendant’s neuropsychologist, you should research the expert and obtain all their published material because many times they will contradict their own opinions.  It is also important to obtain what the defendant’s neuropsychologist believes is authoritative on the issue. If the neuropsychologist refuses to disclose this information at the deposition, it is practical to just look around the deponent’s office to see what publications are in the office and read it into the record during the deposition.  Obtain all the defendant’s neuropsychologist’s past depositions and for what party, plaintiff or defendant. Also, Plaintiff’s Counsel should consult with the plaintiff’s expert in order to be prepared for taking the deposition of the defendant’s expert.  

In addition, it is always good to question the expert during deposition whether they have played any sports in the past and whether they are aware that injuries can result, that people can get hurt.  The rationale is to paint the expert as a “dangerous person to society” because they are reporting people are not hurt when in fact they actually are, for the purpose of being paid money. Also, it is good to question the expert if they have in fact ever seen the Plaintiff and for how long.  Many times the doctor may not have even seen or cannot recognize the Plaintiff particularly after time has passed since conducting the examination. The expert should be questioned on how much they are paid per hour – if videotaped, the silence after asking this question is very powerful to the jury.  These type of questions should be asked at the end of the deposition so that the expert is not closed-off early on during the deposition.    

A powerful line of questioning to ask the expert is:

Is it true that by definition a mild traumatic brain injury will not show up on film?  

Loss of consciousness is not required for a traumatic brain injury? 

You do not need physical impact to cause traumatic brain injury? 

Do you agree that the plaintiff suffered a mild traumatic brain injury? 

Essentially, the real argument in a traumatic brain injury litigation is over the residual damage to the injured victim.  A residual injury is one that is long-lasting or has a permanent effect on the victim. If the injured victim has lingering or permanent residual injuries, the settlement value or verdict may be higher, particularly if the injury impacts the victim’s ability to earn an income.  

A key inquiry in the litigation will be: What is the “industry standard” for believing an expert’s report over the treating physicians? Moreover, during the defense expert’s deposition, the expert should also be questioned about the Hippocratic Oath.  Do you owe the Hippocratic Oath to the Plaintiff who you are not in fact treating? The implication is that the expert is being paid big dollars to make up an opinion. Other questions to the expert that should be considered include: Have you ever had your own work peer reviewed by someone above you at any time in your career? Is it okay to disagree with these reports? Has your work ever been disagreed with?

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