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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?

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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??

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