Deposing Nursing Home Employees and Owners in...

Deposing Nursing Home Employees and

Owners in Neglect and Abuse CasesQuestioning Deponents, Using Demonstrative Exhibits, Raising and Defending

Objections, Dealing With Difficult Deponents

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TUESDAY, APRIL 9, 2019

Presenting a live 90-minute webinar with interactive Q&A

Daisy Ayllon, Attorney, Levin & Perconti, Chicago

Michael F. Bonamarte, IV, Partner, Levin & Perconti, Chicago

Steven M. Levin, Founder and Senior Partner, Levin & Perconti, Chicago

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Deposing Nursing Home Employees and Owners

in Neglect & Abuse Cases

By: Steven Levin, Michael Bonamarte, and Daisy AyllonApril 2019

The Purpose of a Deposition

• The main purpose of a discovery deposition is NOT discovery.

• Prove your case

• Develop a roadmap for your adverse examination

• Anticipate, Embrace and Undermine Defenses

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Establishing the Rule

• The Nursing Home “Model” • Applies to every case

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The Nursing Home “Model”Attorney: Michael F. Bonamarte

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The Nursing Home “Model”Attorney: Michael F. Bonamarte

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Establishing the Rule

• In nursing home cases, the rule is the standard of care

• Policies, Procedures, Customs, Common Practices and Regulations.

• Establish the Importance of Following the Rule

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Establishing the Rule

• They are required by law to follow the rule

• Consequences of breaking the rule

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Gaining Admissions of Rule Violations

• Admissions of Standard of Care Violations

• Admissions of Policy and Procedure violations

• Admissions of Violations of Custom and Practice

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Gaining Admissions of Rule Violations

Attorney: Steve

Levin

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Gaining Admissions of Rule Violations

Attorney: Susan Novosad

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Gaining Admissions of Proximate Cause

Attorney: Michael F. Bonamarte

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Gaining Admissions of Proximate Cause

Attorney: Cari F. Silverman

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Pain and Suffering Damage Testimony

Attorney: Margaret Battersby Black

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Pain and Suffering Damage Testimony

• The Defense Argues….

• No Documentation = No Pain

• Turn that Defense AGAINST them from the Get-Go

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Rules of the Road for Pain Documentation

• Establish Rules Regarding the Frequency and Documentation of Pain Assessments

• Pressure Sore Assessments

• Pain Evaluations

• Monitor effects of Pain Medication

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Disability and Disfigurement Damage Testimony

• Defense might argue the resident was Not in any pain

• Disabled due to negligence

• Could not feel loved ones

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Pain & Suffering Testimony

Attorney: Margaret Battersby Black

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Locking in the Witness

• Lock in the Witness to Prevent Future Creativity

• You can’t risk asking questions you don’t know the answer to at trial

• Don’t be satisfied with just one admission.

• Don’t quit while you’re ahead.

• Get admissions of violations of the Rule as MANY times as possible

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Locking in the Witness

Attorney: Michael F. Bonamarte

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Attorney: Steven M. Levin

Locking in the Witness

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Unprepared Witnesses

Attorney: Margaret Battersby Black

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During the Deposition

• Block claims or defenses by anticipating them

• Make it difficult for the defendants’ experts to testify credibly

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Discredit their Experts

• Admissions from unprepared direct care workers make it harder for the defense to obtain an expert

• Create a situation where the defense expert can be confronted and discredited with employee testimony that is inconsistent with the expert’s opinions

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Attorney: Steven M. Levin

Discredit Their Expert

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Preparation

• Know your Goals

• Know the Case

• Know the Witness

• Know the Rules

• Know the Damages

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Preparation

• Don’t write out your questions

• Anticipate their defenses

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Deposition Techniques

• Learn what the witness reviewed

• Logical thinking

• Open mindedness

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Do’s and Don’ts

• DO NOT: Fight/argue with the witness

• DO NOT: Be afraid of any answer

• DO NOT: Pounce too soon

• DO: Create a trap for the witness he/she can’t escape

• DO: Create a bond with the witness

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Deposition Techniques

• Brainwashing

• Ask the doctor nursing questions and vice versa

• Theory testing

• Neutralizing common witness tactics

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Polarizing the IssuesAttorney: Margaret Battersby Black

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Polarizing the IssuesAttorney: Margaret Battersby Black

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Dealing With Opposing Counsel

• Speaking objections

• Coaching

• Taking advantage of young lawyers

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Icing on the CakeAttorney: Michael F. Bonamarte

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Attorney: Cari F. Silverman

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Attorney: Jordan S. Powell

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Attorney: Steven M. Levin

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Attorney: Steven M. Levin

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Icing on the CakeAttorney: Michael F. Bonamarte

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Attorney: Cari F. Silverman

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Attorney: Cari F. Silverman

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Attorney: Cari F. Silverman

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Icing on the CakeAttorney: Michael F. Bonamarte

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Icing on the CakeAttorney: Steve Levin

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Thank you!

Steve M. Levin

sml@levinperconti.com

Steven M. Levin

Michael F. Bonamarte

mfb@levinperconti.com

Daisy Ayllon

day@levinperconti.com

mpb@levinperconti.com

www.levinperconti.com

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