Tuesday, October 9, 2018

Judge Nealon Addresses Motion to Preclude Completion of Deposition Due to Deponent's Anxiety


Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a Motion for Protective Order to Preclude the Completion of a Deposition Due to the Deponent's Anxiety in the wrongful death medical malpractice case of Ezrin v. Hospice Preferred Choice, Inc., No. 16-CV-7103 (C.P. Lacka. Co. Oct. 3, 2018 Nealon, J.).

This case arose out of a negligence action pertaining to hospice care provided by a nursing home.

After a charge nurse's deposition was recessed when her anxiety disorder reportedly became exacerbated, and after a dispute arose over the conclusion of the deposition, the nursing home filed the motion for protective order at issue.

After reviewing the record provided to the court on the issue, Judge Nealon ruled that that nursing home had not met its burden of supporting its request that the deposition be adjourned and not recommenced.

In particular, the court noted that a physician's report submitted on behalf of the anxious nurse, the nurse's physician noted that the nurse did not feel at the time of the deposition that she could complete her deposition.  In his report, the doctor also noted his opinion that the deposition should be postponed, as opposed to prohibited, in order to allow the nurse's anxiety to be brought back under control.

The court also noted that the record confirmed that the nurse was employed full-time by the nursing home and was responsible for 30 patients during each shift.

Overall, the court concluded that the nursing home had failed to show "good cause" to permanently prevent the resumption of the deposition on the grounds of unreasonable burden, oppression, or annoyance.  As such, the motion for protective order was denied and the nursing home was directed to produce the nurse to complete her deposition prior to the expiration of the discovery deadline.

In his Opinion, Judge Nealon cautioned the attorneys, including the attorney for the nursing home, against interrupting the deposition process, particularly after a question is asked and before the witness answered.  The court cited to case law confirming that there is no need for an opposing attorney to act as an intermediary, interpreting the meaning of questions for the witness or engaging in other unnecessary interruptions, during the course of a deposition.

The court noted that a less disquieting atmosphere during the recommenced deposition of the nurse may assist in keeping her anxiety at bay.

This Opinion contains a nice recitation of the standard of review for addressing motions for protective orders under Pa.R.C.P. 4012.  The Opinion can be viewed at this LINK

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