The Superior Court issued an opinion in Plant v. Rosado et al., C.A. No. N10C-11-048 JRS, on March 21, 2012, that has me scratching my head.

The Court appears to gut a large part of the plaintiff’s treating physician’s deposition testimony where it touched on the treating physician’s opinions concerning the defense medical examiner’s testimony.

The defense attorney apparently objected to the admission of the deposition testimony because by the time plaintiff’s counsel took the treating physician’s deposition on the eve of trial, it was too late for defense counsel to get another deposition of the defense doctor to respond to the plaintiff’s doctor’s testimony.

The Court did not follow that rationale in granting the defense motion. Rather the Court appears to have decided that by taking rebuttal testimony of the treating physician in the trial deposition, the plaintiff was changing the order of proof, thereby altering the burden of proof. The following is in the Court’s letter opinion:

The rationale for allowing parties to take expert testimony for use at trial by pretrial deposition is to accommodate the witnesses and to offer some efficiencies to counsel when appropriate.  It is not, however, meant to change the order of proof or to alter the burden of proof. Here, Ms. Plant bears the burden of proving causation and damages. If the doctors were to appear live at trial, she would not have the opportunity to meet this burden by asking her doctor to offer opinions about defense expert testimony that had not yet been presented. Yet, in availing herself of the court’s practice of allowing parties to secure their expert trial testimony by pretrial deposition, the plaintiff has achieved the unfair advantage of bolstering her case in chief with trial evidence that would otherwise not be presented until the defense presented its case in chief. The court will not countenance this result.”

I am not really sure how the Plaintiff presenting the DME opinion and rebutting it as part of her case in chief changes the plaintiff’s burden of proof, resulting in any unfairness to the defendant. Changing the order of proof does not necessarily change the burden of proof.

I suppose the lesson is that if you are the plaintiff’s attorney in a Delaware personal injury case and you are going to take your treating physician’s deposition, maybe you ought to bifurcate the deposition into material that can be presented during the case in chief and material to be presented during rebuttal, and have two videos and two transcripts. That way, the order of proof doesn’t change and you won’t end up with an order suggesting that you “secure [a busy orthopedic surgeon’s] appearance at trial [next week] and scrap the trial deposition [you just spent four thousand dollars on]”.  (For anyone who isn’t completely clear, additions to that quote appearing in brackets are my own).

I did try to call the attorneys involved in this case, Mr. Shalk and Sean Gambogi, in order to get some additional input on this case, but both were in the trial today.

Ben Schwartz