Risk Management: Surviving your deposition (Part 1)

"Raise Your Right Hand . . ."

By Kevin M. Quinley CPCU

Medical device professionals often get deposed in the context of product liability claims, litigation and other legal matters. The Director of Quality Assurance or Regulatory Affairs must occasionally raise her right hand and swear "to tell the truth, the whole truth and nothing but the truth." Experts at managing engineering or production issues, medical device professionals may be less adept when it's their turn to give a deposition as a corporate witness.

Missteps here can come back to haunt the medical device professionals and their employers, often a career-limiting move. Depositions are sworn oral statements given in a legal setting, typically with a court reporter present to record every answer verbatim. They are not conducted in courtrooms, but the aim is to get sworn testimony on the record that can uncover facts, expose weaknesses and provide the basis for later impeachment of a witness, namely you!

Though the exception and not the rule, various circumstances can give rise to situations where the medical device professional must give a deposition. A prime example would be a product liability lawsuit, where an aggrieved consumer alleges that a defect or malfunction in the medical device caused bodily injury.

Regardless of the circumstances surrounding this pleasant activity, there are certain rules of the road, which every medical device professional who becomes a "deponent" should observe before settling into the witness' chair.

Deposition Do's and Don'ts
Ask your attorney whether or not you should review the product design, production or engineering records relative to the dispute or matter in question. You may be advised not to refresh your memory and to (honestly) testify that you don't recall certain facts.

Do not alter any records in any way. Changes made to the record could be cited by the other side as an admission of guilt or as evidence of shady conduct, which tends to arouse jury's ire.

You are not expected to have memorized every detail of the medical device record. During a deposition, you will be able to refer to records if asked a specific question about them. If you are not able to look at records, and you do not recall the information, your attorney may advise you to say that you do not recall.

Do not refer to outside sources. You need not volunteer your breadth of knowledge during the deposition. A deposition's aim is to determine what you know about why certain decisions were made at the time of the incident or transaction in question. Speculating as to what, in retrospect, could have been done helps only the opposing side. Restrict your testimony to what you saw, heard, and did during the episode in question.

Pre-deposition Meeting With Your Attorney
Communication with your attorney is essential and privileged. Contents of your discussions cannot be obtained by opposing counsel. If you are named in a suit, ask your attorney what allegations have been made against you and on what basis. Your attorney may decide to obtain the plaintiff's deposition testimony first so you can review that testimony in preparation for your own deposition. You may be told to review certain records, obtained through the discovery process. Additionally, be prepared to educate your attorney about critical manufacturing or design angles relative to your case.

Before your deposition, your attorney should schedule a pre-deposition conference to plan your defense and discuss the questioning process. (If she doesn't, request one!) In complex cases, several meetings may be needed. If you feel uncomfortable about any potential questions, or are aware of possible weaknesses in your case, discuss these concerns with your attorney during the pre-deposition meeting. Inform your attorney of all relevant papers, notes, and conversations relating to the case. Discuss all the important information you recall during the pre-deposition meeting. Your defense will be more successful if your attorney is fully informed about the case.

In our next installment, we will look at some of the types of questions that attorneys may lob at the medical device professional in the course of a deposition, and situations where you might be called upon to give testimony.