Entity Designee Depositions, MAJ Trial Reporter (Spring 2017), Part 2

Here is an example of a nursing home fall case, in which the plaintiff’s decedent fell in his room, sustaining a severe head injury. The purpose of the corporate designee deposition was to investigate the actions of the Defendant in setting and following policies and procedures on patient safety and fall prevention.

The Notice: Plaintiffs request a corporate designee or designees to testify concerning the following matters. Unless otherwise specified, all requests refer to facts, conditions, and circumstances in existence as of January 1, 2015, and from that time to the present.

1. The content, effective date, and applicability of any rules, regulations, policies, procedures or protocols of this Defendant which were in effect as of the year 2015 which in any way pertain to:

   1. Fall risk assessments;
   2. Use of fall risk prevention techniques or equipment;
   3. Fall prevention;
   4. Investigations of falls;
   5. Complying with physician orders;
   6. Developing patient plan of care;
   7. Complying with patient plan of care;
   8. Use of matts to protect patients against fall injuries;
   9. Use of chair alarms;
   10. Use of bed alarms; and
   11. Monitoring of patients for falls.
2. An individual familiar with any rules, regulations, policies, procedures or protocols developed or implemented by this Defendant in any way detailing, defining or otherwise pertaining to the generation of any “incident,” “occurrence,” “salient event” or similar reports or communications, by whatever name known, which were in effect as of the year 2015.
3. An individual familiar with the existence and content of any “incident,” “occurrence,” “salient event,” or similar report, by whatever name known, which in any way pertains or refers to any medical care or treatment provided to the Plaintiffs’ decedent, during his admission to XYZ Defendant.
4. An individual familiar with the course and content of any education and training provided by this Defendant, and/or by anyone on its behalf, to its agents, servants and/or employees, including members of its medical and nursing staff, from the year 2010, through and including the year 2015, in any way pertaining to:
   1. Fall risk assessments;
   2. Use of fall risk prevention techniques or equipment;
   3. Fall prevention;
   4. Investigations of falls;
   5. Complying with physician orders;
   6. Developing patient plan of care;
   7. Complying with patient plan of care;
   8. Use of matts to protect patients against fall injuries;
   9. Use of chair alarms;
   10. Use of bed alarms; and
   11. Monitoring of patients for falls.
5. All documents that constitute, refer or relate to any employment or other contractual relationship with regard to maintenance and repair of chair alarms, bed alarms, and fall mats.
6. All medical records, reports and other documentation authored, produced, written, ordered or generated by these Defendants, and/or their agents, servants and/or employees, in any way pertaining or referring to any examination, diagnosis, care or treatment of the Plaintiffs’ decedent.

The Defendant’s designee shall bring to the deposition the following documents:

1. All documents and other material things previously requested from this Defendant which have yet to be provided.
2. The most recent Curriculum Vitae of each designee.
3. All documents and other material things reviewed by any designee of this Defendant in preparation for his or her testimony.
4. Any and all policies, procedures or protocols of this Defendant that were in effect as of the year 2015 which in any way pertain to:
   1. Fall risk assessments;
   2. Use of fall risk prevention techniques or equipment;
   3. Fall prevention;
   4. Investigations of falls;
   5. Complying with physician orders;
   6. Developing patient plan of care;
   7. Complying with patient plan of care;
   8. Use of mats to protect patients against fall injuries;
   9. Use of chair alarms;
   10. Use of bed alarms; and
   11. Monitoring of patients for falls.
5. All documents that constitute, refer or relate to any employment or other contractual relationship between you and Nurse A, Nurse B, and Physician C.
6. All medical records, reports and other documentation authored, produced, written, ordered or generated by this Defendant, and/or their agents, servants and/or employees, in any way pertaining or referring to any examination, diagnosis, care or treatment of the Plaintiffs’ decedent.
7. All documents, including, but not limited to, incident reports, accident reports, risk management reports, ambulance reports, etc., authored, produced, written, ordered or generated by the Defendant, and/or its agents, servants and/or employees, and/or by any other individual or entity, in any way relating or pertaining to the medical diagnosis, care and/or treatment of the Plaintiffs’ decedent and/or the occurrence in question.
8. All electronically generated or stored information or data, including all electronic mail communications, memoranda or transcriptions of telephone communications, medical records, “electronic” medical records, and the Defendant’s complete computer database in any way relating or pertaining to the Plaintiffs’ decedent, and/or the occurrence in question.
9. All bills, invoices and other documentation in any way pertaining or referring to any medical care or treatment provided to the Plaintiffs’ decedent, by these Defendants, their agents, servants and/or employees, or any other health care provider.
10. All correspondence, communications and other documents and written materials between the Defendant/Healthcare Provider, its agents, servants and/or employees, and any other individual or entity, in any way pertaining or referring to any medical care or treatment provided to the Plaintiffs’ decedent, the alleged injuries, damages and losses complained of by the Plaintiffs in the Complaint, and/or the instant litigation.
11. All statements or transcripts of testimony in any way pertaining to the alleged incident in question which are in the custody, possession or control of the Defendant, including any such statements made by the Plaintiffs’ decedent.
12. All photographs, motion pictures, videotapes, surveillance tapes or other visual representations of Plaintiffs’ decedent.
13. All documents that constitute, refer or relate to each and every liability, indemnity or other insurance agreement or policy (including any excess or umbrella policies) that insures you against liability for damages arising from the occurrence to which reference is made in the Complaint or that provides you with a defense to the claims set forth in the Complaint.
14. All documents that constitute, refer or relate to any signed or written statements and/or recordings or oral statements that have been given to you with regard to the occurrence to which reference is made in the Complaint.
15. If you contend that the Plaintiffs’ decedent’s injuries and/or damages were caused by or contributed to by the negligence of anyone not a party to this lawsuit, produce all documents that set forth, describe or relate to the facts on which you rely in support of the said contention.
16. All documents that constitute, describe, or relate to any admissions or declarations against interest that you contend have been made by the Plaintiffs’ decedent.
17. If you contend that the Plaintiffs’ decedent, was not compliant with any aspect of his medical care, all documents that describe, set forth or relate to all facts on which you rely in support of said contention.
18. Identify and produce copies of all Medical Staff By-Laws, Rules and Regulations of the Medical Staff, and similar documents, by whatever name known, promulgated or utilized at XYZ for the year 2015.
19. All documents not heretofore produced that were described and/or referred to by you in answer to Plaintiff’s Interrogatories.

The Deposition:

Ask the designee about their own employment background with the defendant.

Ask what have they done to prepare for the deposition.

Ask what have they have done to gather the policies and procedures and other documents responsive to the deposition notice.

Confirm that Defendant had the expectation that their staff would follow the policies and procedures.

Confirm that the reason they have policies and procedures is for the safety of their patients.

Ask how do they know the policies and procedures were actually in effect at the time of the fall at issue in this case.

Ask where the policies and procedures are kept.

Ask how the Defendant tested their staff on their understanding of the policies and procedures.

Ask what training had been done before the fall.

Ask where that training was done.

Ask what evidence exists that they kept their staff informed on the policies and procedures that the staff was expected to follow (in the time leading up to the fall).

If they didn’t bring such things to the deposition, take a break and ask them to go get it.

Do Not Be Intimidated By An Impressive Entity Designee

In a house fire case I tried for a week in the Circuit Court for Howard County, the builder, a large national company, had an entity designee testify in a way that made it appear to be a very caring company. He was smooth, well spoken and made an excellent appearance…right up until cross-examination, when he answered all of the following questions in the negative: Did you visit the fire scene? Did you check on the plaintiffs? …At any time after the fire? Did your company offer them any financial support to help them get back on their feet? Did it buy anything to replace what they had lost in the fire?

A Few Final Thoughts

Most importantly, as you prepare for these depositions and question entity deponents, try to show that the defendant made as many bad choices as possible. With each bad choice you spotlight at trial, a jury will be less likely to excuse the defendant’s conduct. Be mindful that entity designee depositions can also be used with non-party deponents such as IT vendors (describing the electronic systems in your party opponent’s business), accountants, risk management companies, or independent investigators. For further information, I recommend Mark Kosieradzki’s 2016 book, 30(b)(6). Having read online its table of contents and first chapter, I expect it to become “the bible” on this topic. It can be found here: https://www.trialguides.com/product/30b6/.

Eric N. Stravitz owns the Stravitz Law Firm, P.C., at which he handles personal injury and medical malpractice lawsuits and trials in federal and state-level courts across the region. A member of the District of Columbia and Maryland Bars, Mr. Stravitz handles Virginia cases pro hac vice. For five years he taught Trial Advocacy as an Adjunct Professor at The George Washington University Law School. Mr. Stravitz serves on the Board of Governors of TLA-DC. He is also member of MAJ and AAJ, and has served as a member of MAJ’s Trial Reporter Editorial Board since 2000. Mr. Stravitz graduated magna cum laude from the State University of New York at Albany in 1988, and from The George Washington University School of Law in 1991.

Back to Entity Designee Depositions, MAJ Trial Reporter (Spring 2017), Part 1