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TexLaw, Attorney
Category: Personal Injury Law
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Experience:  Lead Personal Injury Trial Lawyer
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If X wants her treating drs testify at trial but theyre not

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If X wants her treating drs testify at trial but they're not available due to patient/hospital commitments, can a deposition for use at trial be taken? If so: (1) does the other side have to agree and/or do you have to get permission from the court; (2) does the deposition notice have to go out before the close of discovery; (3) should the notice specify that it is a deposition being taken for use at trial as opposed to a discovery deposition; and (4) would the opposing party be able to ask anything at all or would his cross be limited to the scope of direct as if they were at trial?
Also, do all of the drs records have to be produced before the deposition to the opposing side?

Thank you for your question.

You are precisely right. When a treating physician is unavailable or unwilling to come to court to testify, you will need to take the doctor's deposition to preserve the testimony for trial. You do this by Noticing the Deposition.

You first need to contact the doctor and make arrangements with them for some dates on which they would be available to testify. They may require that you pay them a fee for this.

Your opponent does not have to agree. However, you do need to contact your opponent and give them a range of dates on which the doctor is available for the deposition.

The deposition needs to be completed before the close of discovery. If it cannot, then you will need to file a Motion for Post Discovery Deposition and/or Motion for Continuance.

The notice needs to state "deposition to be taken to preserve testimony for use at the trial of this matter" in addition to the other language generally used in deposition notices.

Your opponent's cross examination is not at all limited to the scope of the direct.

The doctor's records do not have to be produced before the deposition, although the doctor will need to produce his/her file at the deposition for the other side to inspect and ask questions about.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,

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