Deposition Week: A Clawed-Back Document and a Former Employer
You are the testifying expert for the plaintiff in a nursing home elopement case. A 79-year-old resident with dementia and a documented wandering history exited through a secured unit door that housekeeping had propped open, and was found 90 minutes later in a retention pond; he died. Your report under the applicable disclosure rule offers three opinions: (a) nursing staff breached the standard of care by failing to implement the care plan's wandering interventions; (b) the facility was 'out of compliance with OBRA survey requirements and subject to federal tags'; and (c) 'the neglect directly caused the resident's death.' Defense counsel has noticed your deposition. In preparing, you learn that an internal risk-management memo you relied on was produced by mistake and has been clawed back by defense counsel, and that you worked as a staff nurse six years ago at a sister facility owned by the same parent company - employment your CV lists.
1. How do you prepare for the deposition on the clawed-back document?
Read the worked answer
Do not use it, do not bring it, and do not pretend it does not exist.
Steps:
- Notify retaining counsel immediately in writing that the memo was clawed back and identify every place it influenced my analysis. Counsel handles the privilege dispute; I do not.
- Segregate and stop using it. Remove it from my working file set for the deposition, and do not reference it in any demonstrative or chronology.
- Test my opinions without it. For each opinion, ask: does it survive on the care plan, the staffing records, the door alarm maintenance log, the survey history, and the incident report? If the answer is yes, the memo was corroborative, not load-bearing. If an opinion collapses without it, counsel must be told that the opinion needs to be withdrawn or re-grounded, and the report may need supplementation under the disclosure rules.
- Prepare a truthful answer to 'What did you rely on?' - naming the documents actually relied on, and, if asked directly about the memo, acknowledging that a document was produced and withdrawn and that I do not rely on it. I will not describe its contents.
- Expect the question. Defense counsel knows the memo was produced and clawed back, and is testing whether the expert's opinion is independent of it or whether the clawback will be used to suggest the opinion has no support.
The professional risk here is not the clawback itself; it is an expert who improvises an answer about privileged material under oath.
2. How do you handle the prior employment at the sister facility?
Read the worked answer
Disclose it proactively, prepare for it, and do not minimize it.
- It is already on my CV, so the attack is not surprise; the only question is whether my answers are consistent and unhedged. I should confirm the exact dates, my role, whether I had any access to the parent company's policies or to this facility's records, whether I have any continuing financial relationship (pension, per diem, consulting), and whether I know any witness in the case.
- Characterize it accurately. Six years as a staff nurse at a different facility under a common corporate parent is a bias theme, not a disqualification. It goes to weight, not admissibility, and a motion to exclude on that basis should fail - but only if my testimony is candid and precise.
- Do not overcorrect. Volunteering that the prior employer was 'wonderful' or 'terrible' creates an argument where none existed. Answer the question asked, and stop.
- Tell retaining counsel now, so the issue is addressed in direct examination rather than detonating on cross.
The larger point for expert practice: the CV entry is the disclosure. What sinks experts is not the relationship, it is an answer that suggests they hoped nobody would ask.
3. Do opinions (b) and (c) survive scrutiny as written, and what should you do about them?
Read the worked answer
Both are overreaching as phrased, and the fix should happen before the deposition, not during it.
Opinion (b) - regulatory noncompliance and 'federal tags.' Regulatory citation is not the standard of care, and whether the facility was 'out of compliance' is a regulatory and sometimes legal conclusion. What I can properly testify to is the substance: what the wandering care plan required, what the survey history and the facility's own policies show about door security and alarm maintenance, and whether the nursing practice in the record departed from accepted nursing practice. I may discuss survey findings as evidence of what the facility knew, but I should not offer the tag number as if it were the legal standard or opine that the facility 'violated the law.'
Opinion (c) - 'the neglect directly caused the death.' The mechanism here is drowning after an elopement. An LNC can opine, within nursing scope, that the elopement was foreseeable and that the failure to implement wandering precautions permitted it. Cause of death and medical causation belong to the medical examiner and the physician expert. I should reframe to what nursing practice caused: the failure of supervision and environmental safeguards that allowed an at-risk resident to leave the unit unobserved.
Procedure. Tell counsel I am narrowing (b) and (c), so the report is supplemented in accordance with the disclosure rules and the scheduling order, and I am prepared on direct to explain why the language was tightened. A narrowed opinion that survives cross is worth more than a broad one that gets struck.