Questions the employer’s lawyer may ask at your deposition re: your physical and mental condition prior to filing suit

If, in connection with your lawsuit alleging wrongful termination or other unlawful employment practices, you are seeking to recover compensation for mental and emotional distress and/or physical symptoms caused by the employer’s conduct, then you can expect that the lawyers for your former employer will obtain your medical records and question you at your deposition about those records, your medical history, and your current condition. The employer’s goal with these questions is to demonstrate that: (a) you had pre-existing conditions, and the symptoms existed prior to the unlawful harassment or your termination; (b) at best, your current symptoms are an aggravation or exacerbation of pre-existing conditions; or (c) there may be other stressors causing you mental or emotional distress.

Questions you may be asked include:

  • At the time you were hired by the defendant [i.e., the employer you are suing], how would you describe your general state of health?
  • Had you received any medical treatment in the five years before you were hired?
  • If so, what was the name of the healthcare provider?
  • What was the diagnosis, nature and extent of your treatment?
  • What were the results of your treatment?
  • During your employment, did you receive any medical treatment?
  • If so, what was the name of the healthcare provider?
  • What was the diagnosis, nature and extent of your treatment?
  • What were the results of your treatment?
  • Since the defendant terminated you, have you seen any medical or psychiatric practitioners or healthcare providers?
  • If so, what was the name of the healthcare provider?
  • What was the diagnosis, nature and extent of your treatment?
  • What were the results of your treatment?
  • Since the defendant terminated you, have you kept a diary, journal or personal calendar?
  • How frequently did you write in your diary?
  • What type of information would you write in your diary?
  • That diary has not been produced in this litigation. Do you still have it?
  • Did you provide that diary to your attorney?
  • Would you be willing to provide your diary to your attorney?
  • Are you claiming any mental or emotional distress in this litigation that you contend was caused by the defendant?
  • Please describe the nature of the mental or emotional distress you are claiming in this litigation to have been caused by the defendant?
  • Please describe each and every symptom you have experienced since being terminated from employment?

    During deposition preparation, your employment lawyer should thoroughly explore with you all symptoms of mental and emotional distress that you have experienced and any resulting physical symptoms. You should review your medical records with you, so you are not seeing them or being questioned about them for the first time at deposition. With good preparation, you will be ready for this question. It is a gift from the defendant-employer. Do not hold back. Testify about all your symptoms (even if they are embarrassing).
  • Are you claiming any physical problems in this litigation that you contend have been caused by any mental or emotional distress?
  • What is the nature of that mental or emotional distress?
  • Has any psychologist or psychiatrist made a specific diagnosis?
  • What was the diagnosis?

    The Diagnostic and Statistical Manual of Mental Disorders, 4th edition text revision (DSM-IV TR) is used by clinicians and psychiatrists to diagnose psychiatric illnesses. Published by the American Psychiatric Association, it covers all categories of mental health disorders for both adults and children. If a DSM-IV diagnosis has been made in your case, your employment lawyer should review each of the diagnostic criteria with you and pinpoint the periods of time during which you have experienced each symptom. This should be done well in advance of your deposition, as part of your preparation for your testimony.
  • Please describe for me, in detail, how each symptom you have experienced has affected your ability to work.
  • Please describe for me, in detail, how each symptom you have experienced has affected your personal relationships.
  • Please describe for me, in detail, how each symptom you have experienced has affected your sexual function.
  • Please describe for me, in detail, how each symptom you have experienced has affected your ability to engage in recreational activities.
  • Please describe for me, in detail, how each symptom you have experienced has affected your everyday activities.
  • Are there any persons who have witnessed the symptoms you have described and can testify about those symptoms?
  • When did you first see a psychologist, psychiatrist, physician or healthcare provider regarding any emotional or physical problem you are claiming?
  • Who referred you to that healthcare provider?
  • What is the name of that healthcare provider?
  • If you did not seek professional treatment, you will be asked: You are claiming mental and emotional distress in this lawsuit. Please explain why you have failed to seek counseling or medical care for this claimed emotional distress.
  • You have testified that you did not seek counseling and medical care because you could not afford it, correct?
  • Isn’t it true that you were receiving unemployment benefits during the time you claim you were experiencing emotional distress?
  • Didn’t you also tell me that your parents loaned you money while you were seeking employment?
  • You didn’t use any of that money to seek counseling or medical care, did you?
  • Before the termination of your employment, had you ever had any prior psychological or psychiatric treatment?
  • When?
  • What was the nature of your condition?
  • Who treated you?
  • What was the diagnosis?
  • Over what period of time did you receive treatment?
  • Were any medications prescribed?
  • Are there any other stressful events you have experienced since being terminated from your employment with the defendant? [Such as, a divorce, separation from spouse, problems with immediate family members, problems with children, death of a family member or friend, other litigation, etc.?]
  • Have you had any contact with the police or any law enforcement authority since being terminated from your employment with the defendant?
  • Have you had any contact with the Internal Revenue Service since being terminated from your employment with the defendant?
  • Are there any police records or incident reports involving you or members of your immediate family?
  • Have you ever been treated for alcohol or substance abuse?
  • What was the nature of your treatment?
  • What was the name of the healthcare provider who provided treatment?
  • Over what period of time did you receive treatment?
  • What were the results of the treatment?
  • Since you were terminated by the defendant, have you filed for disability benefits with any insurance company or with the Social Security Administration?A note re disability discrimination claims: Prior to your deposition, your employment lawyer will explore with you any statements you made on any application for disability benefits, in which you claimed to be totally disabled and unable to work. This type of statement could be used to cut off damages in your lawsuit. Although this type of information can be relevant on the damages issue in all discrimination cases, it is particularly relevant in disability cases. The Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against a “qualified individual with a disability” in all aspects of employment. Thus, to prevail on an ADA claim, you must show that you are both disabled and “qualified.” The ADA defines a “qualified individual with a disability” as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position which that individual holds or desires. If you have made “unequivocal admissions” in connection with your applications for public Social Security disability and private disability benefits which substantiate that you were totally disabled at the time of your termination and unable to perform the essential functions of your position, then you may not be able to establish that you are a “qualified disabled individual.” As a consequence, your ADA claim may be dismissed, depending on where (in which jurisdiction) your case is filed. Courts that favor dismissal generally focus on the inconsistency of an individual who claims total disability in order to obtain disability benefits, but then later claims, in order to bring an action under the ADA, to be a “qualified individual with a disability, able to perform the essential functions of a job.” However, the Supreme Court has held that seeking disability benefits does not automatically preclude you from pursuing an ADA claim; however, you must be prepared to explain the apparent contradiction between (a) the statements of total disability and inability to work made for purposes of obtaining disability benefits and (b) a claim that you are able to work and were wrongfully terminated under the ADA.