Skip to Content Top

Defending a Medical Proof Deposition Part 2: Use of and Objections to Exhibits


I want to stay with the topic of medical proof depositions because I believe there is another important point to discuss.

Stay with the same scenario described in my previous blog concerning medical proof depositions. Similar questions are asked in direct examination. Then, the question comes, “Doctor, do you have a diagram or model that you can show the jury to help the jury understand what you are referring to?” Then, the doctor pulls out either a textbook drawing or sometimes even a skeletal model of the body part being discussed. This demonstrative evidence then becomes part of the trial testimony and sometimes the drawing or object is made a trial exhibit. The problem? This is oftentimes the first time you have a chance to see this evidence.

I believe the mantra you must keep repeating to yourself is, “This is trial testimony.” And, since it is trial testimony, what requirements are in place that require you to see the drawing or object prior to the medical proof deposition?

If there is a scheduling order, does the scheduling order require the parties to meet, confer and/or exchange exhibits before the trial? I’m confident this is standard in several jurisdictions. If the purpose is to do so before trial, then wouldn’t the same be true before a doctor’s deposition since it is trial testimony?

How about local rules? For example, in Davidson County, Local Rule 29 requires the parties discuss proposed exhibits and even requires the exhibits be made available for viewing before trial.

Something else to consider is making sure your written discovery requests copies of, or an opportunity to inspect, exhibits that will be used in expert and/or medical proof depositions and that will be used at trial.

This may not always be a big deal. I go back to the rules and what the parties are required to follow and produce in advance of the trial. The rules are there for a reason. At a minimum, you may develop your own line of questions based on what is anticipated to be shown during the doctor’s deposition.

Keep in mind, this door swings both ways. If you are not defending, but taking the medical proof deposition, I believe the same rules apply. Don’t miss the opportunity to show the jury something that may be helpful to your case by failing to follow the rules.

Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.

This blog is made available by Santel | Garner for educational purposes only as well as to provide general information and a general overview of the law, not provide specific legal advice. By using this blog and website, you understand that there is no attorney-client relationship between you and Santel | Garner . This blog and website should not be used as a substitute for competent legal advice from a licensed attorney in your state.