When leading up to a personal injury case, in the discovery phase, defense attorneys will often hire an expert to look into whether the accident at hand caused the plaintiff’s injuries or created problems with preexisting injuries. These defense experts often come back with reports that state the injury or injuries in question were not caused by the accident, or that some treatment was not necessary because the plaintiff should have been pain free at a certain time before that treatment.
In some cases, the defense expert will disagree with a plaintiff’s doctor based on some small scientific facts that require more research. In other cases the defense expert may have looked at certain facts and ignored others to reach their conclusion. In still other cases the medical expert for the defense may have started out with a certain conclusion then looked for facts to support that conclusion in the record.
In cases where the defense expert may have started with a conclusion then looked for facts to support that conclusion, the best way to show that the expert started with a conclusion is in deposition. By using hypothetical questions in depositions, a plaintiff’s attorney can show that the medical expert for the defense is biased or would come to a different conclusion looking at all the facts presented instead of just finding facts to support their conclusions.
When dealing with hypotheticals, a good definition is a question which asks the expert would have given if a set of facts given are assumed true. These kinds of questions can be asked when the expert has an adverse opinion, if, after looking at the expert’s opinion with logical and analytical thought, that the opinion has assumed certain facts, or when there will be evidence that those factual assumptions made by the expert are wrong.
In order to effectively use a hypothetical in a deposition, it is important to set the question up properly. By stating that as an expert, this witness can provide opinion testimony that other witnesses cannot according to the evidence rules, and then stating that you, as an attorney, can ask whether X, Y, and Z are true, and then asking the expert what their opinion would be assuming those facts, is an excellent way to set up the hypothetical. The attorney may then follow up with a statement regarding the truth of those hypothetical facts. Because this is just a hypothetical, the expert does not have to agree that the assumed facts are true, but just has to answer what their opinion would be assuming they are true.
When using hypothetical questions at deposition, make sure the facts fit together well, and that there is little room for the expert to fight those facts. Make sure that they are comprehensive enough that there is a logical conclusion that will flow from them. In this way, when presented with the hypothetical, the expert will find the only logical conclusion to the facts presented and will go with that answer. There might be some minimal pushback, but as long as the attorney has presented the facts in such a way that is fair and as a hypothetical question, there should be very minimal argument from either opposing counsel or the expert.
By using hypothetical questions effectively, a defense expert who holds an adverse opinion should be neutralized in the sense that they have conceded in that hypothetical that their initial opinion was wrong or at the very least the conclusion they came to was one in which they first came to their opinion on the case then looked for facts to support that opinion. A hypothetical question in deposition can ensure that they look at all the facts of the plaintiff’s injuries resulting from a car accident.