Deposition Strategies in Nursing Home Cases
Getting a strong deposition in a nursing home case can make or break the outcome. But do you know the best strategies to use? In this week’s episode, nursing home abuse attorney Rob Schenk welcomes guest Kate Hughes to talk about essential deposition tactics, how to prepare, and what to expect in these critical moments.
Deposition Strategies in Nursing Home Cases
Schenk:
Deposition strategies in nursing home cases. Stick around
Hey out there. Welcome back to the nursing home abuse podcast. My name is Rob. I will be your host for this episode. Today, we’re talking about deposition strategies in nursing home cases, who we’re deposing, when do we depose, what order the whole shebang, but we’re not doing that alone. We have the fantastic trial attorney, Atlanta trial attorney, Kate Hughes to come on here and give us her perspective on these issues.
We’re going to get into the meat and potatoes of the episode. As I mentioned, we’re going to be talking about different deposition strategies in a typical nursing home case, but we’re not doing that alone. We have the absolutely fantastic attorney, Catherine Kate Hughes of Wagner Hughes here in Atlanta, Georgia.
Kate exclusively handles nursing home cases, including cases against skilled nursing facilities, assisted living facilities, and personal care homes. After graduating from Emory Law School in 2002, she clerked for a judge in Atlanta for two years before spending 10 years defending nursing home cases.
Kate began her own firm 10 years ago, focusing on representing victims of nursing home abuse and their families. And we’re so happy to have her on the show. Kate, welcome to the show.
Hughes:
Thank you for having me, Rob.
Who do you depose in the typical nursing home case?
Schenk:
So we’re, I’ve been, I feel like I’ve been all around the world, all around the country, at least in terms of talking to attorneys about nursing home cases.
And I’m back home in Atlanta, Georgia with Kate. This is going to be, this is going to be fun. We’re colleagues in the nursing home scene here. So. I wanted to talk to you about this particular topic, which is deposition strategies like, and we’ll start at the top and you can be as basic or in the weeds as you want to, but who do you typically in an average nursing home case, who are you deposing?
Who’s important for you to talk to?
Hughes:
I would say that it depends a little bit about what type of case it is, whether it’s a pattern of neglect case or if it is a single event or incident type of a case. Obviously, if there is one particular event, like a drop or a fall, then the people directly involved in that drop or fall are going to be the most important.
But I would say in the pattern of neglect cases, which you know is a lot of our cases I take a lot of CNAs cause they’re the boots on the ground and they’re the ones providing a lot of the actual care and they probably see the residents the most every day. But I like to take everybody from LPNs to RNs, DONs, the care plan coordinator, the administrator.
And I take a lot of corporate depositions. So I like to take a lot of depositions.
Is there a particular order in which you take depositions?
Schenk:
So that, that kind of makes me think about this and that is some people follow a particular order. So in terms of who they’re going to depose first, so some people will be like I always do the administrator in the do in first.
Some people are like, I like to go in with the people on the lowest of the low, like CNAs first where do you fall? Is there a typical routine that you follow or is it case by case? And if it is a routine what is it?
Hughes:
Now everybody’s going to know my secrets, as long as you had a case against me, you probably know, I like to start with the lowest guys on the totem pole, which are usually the CNAs.
I think that the CNAs, the certified nursing assistants are usually. They’re the least educated. They don’t have professional licenses or degrees usually. And I feel like you get a more honest answer from them and their depositions, whereas people with more education and experience. tend to be more coached and obviously their deposition transcripts usually have a little bit more meaning for the case just because they are the ones in charge.
So I like to lay the groundwork with a lot of CNAs and get their gut reactions to the case and get the lay of the land and work my way up through LPNs, RNs floor supervisors, ADON, the DON, Administrator and depending on the case, sometimes I need to do the dietician or the activities and then also sprinkle in some 30 B.
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How do you use 30(b)(6) depositions?
Schenk:
So I hear you. So I guess for at least in my experience, you’re right. You do get more real answers from the CNAs for whatever reason, as you mentioned, it might be that they don’t have as much skin in the game as maybe a DON would, things like that. But yeah, you definitely get Oh no, we always do this way.
And it’s Oh really? Okay. You get those type of that type of testimony. I know that when I first started doing these cases, I would always get the defense attorney be like, Hey, no, do the admin first. Let’s do the DON first. Let’s get this I don’t can I try my own case?
But that, that, that’s how, that perhaps you should start with the CNAs first, if you have the defense attorney saying no. They know the DOA and the admin know more about the case. Let’s do them first. So you mentioned 30B6. So first of all, what is 30B6 and and how are you using that in a typical nursing home case?
Hughes:
Sure. A 30B6 is a corporate representative deposition because obviously most of the time the defendant nursing home is one or more corporations and a corporation is not a person. So they have to designate a specific representative to testify about what topics you’ve listed on the notice.
Here’s me. So I typically start off by doing a, what I call a document 30 B six, because I like to make sure that I get all of the records at the beginning of the case and Even though they always say they’ve given you all the records, once you get down to the, the attorney’s office and you’re doing the deposition do you have any of this type of document?
Oh yeah, we have those. You learn a lot of times that there are documents you don’t have and you want to know at the beginning of the case rather than the middle of the case after you’ve already deposed several nurses and CNAs and have to redepose them. So I start off with that. And then a lot of times.
Somewhere in the middle of the depositions, I will do one for policies and procedures to find out, if the specific policies and procedures that were put in place during the resident’s admission, ask questions about them. How did they apply to the facts of the case? I ask about the facts of the case and a lot of times, what different witnesses have to say about the case and and standard of care.
That’s always. It’s always a cringeworthy moment, when you get the own corporate representative admitting that some of the actions in the case were violations of the standard of care, which is I like to do the lower level people first, because then the DLN or the corporate representative can conceive what has already been developed in testimony.
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Yes, that was a violation and they have to admit it. Just recently I had a corporate representative deposition and they had been tagged during a state survey for failure to have a care plan in place for risk of skin breakdown, and that was the issue in my case as well. But the events happened before the survey was taken.
So I asked the corporate representative, was it a violation of this? federal regulation to fail to have a care plan in place for risk of skin breakdown for these two residents. And he said, yes. And I said was that same federal regulation in place when our resident was at the nursing home?
And of course, He was forced to say yes. He’s but we didn’t know that was a regulation.
Schenk:
What?
Hughes:
Oh, okay.
Schenk:
Even though just dig a hole deeper.
Hughes:
That was their responses. They did not know that was the regulation at the time that our resident was at the facility. So that was a good corporate representative deposition for us.
Schenk:
You, you you talked about. a document deposition and for the purposes of trying to understand what documents you might have or not have. I actually had an interview with Suzanne Fink over at Lance Lurie’s office or it’s Lurie, Chance, Four Lions, Carter and King now, I think it’s a mouthful. Cause not just Lance over there.
And my, my, what I talked to her about was, For a long time, I would do the same thing. I would do the Kozarowski document deposition where it’s basically who has access to this document. When does it get generated? These type of things. But my problem was always, it takes forever To to get that scheduled.
And so here I am 90 days out from when Discovery started just now getting my 30B6 deposition just on documents, right? Because I want to because I want to make sure that I have everything. And Suzanne’s, Suzanne was like I typically will only care to have three or four categories of documents, which I usually already do before I start deposing people.
So I don’t wait on the document deposition. Although I think she said that she does do the same thing. So I didn’t know if if you were in my camp where I’m always like, no the literally the first deposition I take is the document deposition. The 30 B six document deposition to take is that kind of what you do, or Is it does it change or
Hughes:
it depends?
Of course there are times when i’m highly suspicious that I do not have a lot of categories of documents You know when you’ve been doing this as long as you and I have We can recognize pretty quickly when we think that there are documents missing So if we’re missing actual portions of the chart, I think I’d like to get that before I depose caretakers
Schenk:
sure,
Hughes:
but as far as different types of there’s a lot of different types of documents.
I think my backlog request is hated amongst defense attorneys. I think a hundred something plus categories of documents that we asked for in a lot of those. I call them first tier or second tier. If we don’t have them right at the very beginning, it’s not going to be the end of the world.
We’ll work on getting those. So it depends on if the documents I really need or have questions about are in my first tier or my second tier. I guess I would say that makes sense.
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Do you like in-person or zoom depositions?
Schenk:
And I guess for me, I I’m more and more letting go of one of the main, one of the, one of the main reasons why I take that document deposition is not necessarily just to get documents or understand documents that I don’t have, but it’s to defeat objections.
Oh, the incident report is peer reviewed and that’s why you’re not giving it to me like, okay then let’s sit down. Who’s on the peer review committee who has access to this and then is it original source, blah, blah, blah. And I’m moving more towards the idea of, and I hadn’t heard it put that way about first tier, second tier, but I think I might be more into the camp of, all right, if I’ve got all my tier one, let’s rock and roll.
We’ll still do the 30 B six. I’m not going to hold up discovery for that reason. Okay. Okay. So let me ask this. What about in person versus zoom? Do you have a preference? And if so, why?
Hughes:
I didn’t take a single zoom deposition until COVID and I’m a document intensive lawyer. Like I like to slap the, the exhibit down on the table for the witness.
And asking questions as I go. So that’s, that was really hard to break when COVID happened and I started taking my first zoom depositions. But then I learned how easy it was to organize all of my exhibits and I got the hang of it. And as long as the deponent had a decent enough setup and they can read the document, I started feeling like that was easier, but at the same time, I’ve been doing both.
So I don’t know if I have a preferred way to do it. If there’s a witness that’s not like a star or key witness that lives across the country, that’s probably going to be a great one to do by zoom for me. I’ll still travel. For an important witness, there’s a former do in one of my cases, who’s going to be very critical of the facility in one of my cases.
And I’m going up there in person to do it, even though, opposing counsel would be happy to do that by zoom. I’m going up there in person because I want to be able to meet with her. I want to be able to. feel her out and make sure that it’s going to go the way that I think it’s going to go.
What are corporate rep depositions?
Schenk:
I echo that because I think that for me and for whatever reason, the zoom depo makes me prepare more.
The zoom depo makes me get my exhibits lined up. Like whenever I’m in person, it’s almost it’s the wild west. Oh, you said this, let me break this out. Whereas when I have a zoom, it’s I have to think about, it’s like a decision tree. Like, all right, here’s all the ways that this person can answer this.
I want to have all my exhibits ready for when they do it. It makes me. Makes me think if I feel like in my experience makes me think harder in preparation but obviously there’s advantages to the in person and as you mentioned, like you need to, sometimes you need to be eyeball to eyeball with the with the individuals.
I just feel like this is like a polarizing for some attorneys. Like I’m going to have, hopefully in the next few weeks, Roger Dodd on who wrote the book on cross examination, the science of cross examination. And he’s zoom 100 percent of the time. There’s no reason, there’s no reason to be eyeball to eyeball with people.
I hope I’m not. Hopefully that is what he’s saying because I think it’s what he said in the past. But so there’s some people that like it saves on time and saves on energy and it makes you prepare more. So why not do it? But I can’t like I’ve got to do both as you mentioned, if the 30 B six document one That’s Zoom.
That’s, to me, that’s Zoom. It’s not quite as important but definitely if you’re doing the admin or the DON you like to be eyeball to eyeball. Okay, so you mentioned later on down the line doing corporate depositions. What does that mean?
Walk us through what that means in a typical CAIT case.
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Hughes:
So for a typical case depending on how long the case goes on, if we resolve it earlier rather than later, I might take several different corporate representative depositions and that just means that their responsive, their responses are binding on the case.
Corporation on the actual party. You might have 10 different fact witnesses that say 10 different things. And in fact, it’s all the time that one CNA says, this is the way we do it. And another CNA says, no, this is the way we do it. We fill out this other form. And so how do you reconcile that?
And so when you use a corporate representative deposition, you can force them to take a position on. How is it done? Like these, all these witnesses are saying different things and they have to make a choice. And especially if there’s like a discrepancy in the facts, you can get them to tell you what their view of the facts are.
So there’s a lot of ways I use them.
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Schenk:
And that was a bad question. I’m sorry. I guess when I heard you say corporate deposition, I’m thinking home office, the area, like the vice president to walk me through, like, when are you taking those type of depositions where it’s, if you have a facility, that’s a part of a corporate chain.
Who, what depositions are you taking in terms of trying to associate the facility with those other entities?
Hughes:
Sure, yeah, and I do that I take the corporate representative deposition and sometimes the CEO depending upon, How the corporation is set up and that sort of thing, there could be different individuals, but I’m asking about what their role is in the operation of the facility, because typically there are nursing home chains that have a big, complicated corporate structure, and they’re trying to protect their assets.
They’re trying to avoid liability. And, if heaven forbid, this one location gets a big judgment against it, the other. Corporate entities want to be able to. Section themselves off from any exposure to their assets from that. So what they do typically is one entity will have the operating license.
Maybe a different entity will be the quote manager. Then there will be holding companies, parent companies. So when I’m taking those depositions. I want to know what level of control the parent companies and the management companies have over things like staffing or budget or policies and procedures, training, hiring, because, one of our typical claims that are against the corporate entities are negligent hiring and retention.
So it depends on the case, obviously, but. I always look into all those areas to see if some of these claimed non related entities are actually more in control than they claim to be.
For strategies on fall cases, see this approach to nursing home fall cases.
How do you approach questions, cross exam or open ended?
Schenk:
So my approach to depositions and nursing home cases has historically been to approach them like, cross examination at trial.
So I am asking almost exclusively leading questions and we’re talking about things that I already know, like it were questions about the chart, the policies and procedures, as opposed to saying, what is the policy about X? If I have the policy, I’m going to say the policies X, right? With the understanding, excuse me, that they’re going to walk into my trap.
But some people are very critical of that and they say, Rob, that’s the dumbest thing I’ve ever heard. You should just be asking open ended questions and then basically closing that loop. Do you have a particular approach or does it matter? Does it change from deposition to deposition?
Hughes:
Case by case.
I do both approaches act. So I like to if you’ve sat through one of my depositions, you know that they’re usually pretty long. I know different lawyers have different styles on that. But, the 1st CNA deposition I take the 1st LPN deposition. It’s going to be very long because I’m trying to get the lay of the land and I’m asking a lot of open questions, just like you’re talking about, because I want to hear, how it works, how the doughnuts are made or whatever it is.
So later on, especially with the higher up individuals, I will ask more the cross examination type questions that you’re talking about, because. I want them to have certain general admissions about, this is what the standard of care is, or, this was in this person’s chart. And like you’re talking about, I want to seal those in so that they are essentially admitted facts or admitted standards that are used in my case.
So I like to do both.
Schenk:
And I hear you mentioned that you take long depositions for me, my, I, and this is probably, I’m probably hated in the defense community. But I think my depositions, I’m almost pushing the seven hour limit a few times in each case. So they must hate me. I’ve tried to, sometimes it’s I try to, And this is bad, but I’m trying to test things out or I want to get the exact same admission from everybody.
So that way I’m thinking, I’m trying to think can I show that the CNA said the same thing as a D O N as the A D O N is this person, they all said yes to this question and have it up on the screen. That’s what I’m trying to think about. But I’ve got attorneys to say that’s overkill and that’s dumb, but I hear you like, I don’t mind a long deposition.
I pack a lunch.
Hughes:
Oh yeah, definitely. I put my lunch at the table when everybody has the break so I can get
Schenk:
ready again. That’s right. Recharge.
Kate, thank, this has been fantastic. I really appreciate you talking to us and learning how you do things. I appreciate it very much.
Hughes:
Thank you so much for having me, Rob. It’s a, it’s an honor.
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