Speaking Objections At Depositions Addressed by Judge Terrence R. Nealon of Lackawanna County

In the case of The Fiduciary Trust Co. Int’l of Pa v. Geisinger-Community Medical Center, No. 20-CV-4775 (C.P. Lacka. Co. March 4, 2022 Nealon, J.), Judge Terrence R. Nealon tackled the issue of speaking objections during the course of depositions that were conducted in this medical malpractice action.

According to the Opinion, after a nurse who was being deposed had demonstrated an understanding of information on fetal monitoring strips and had defined certain medical terms in that regard during her testimony, a Plaintiff’s attorney displayed the fetal monitoring strips to the nurse and attempted to question her regarding the findings on the same.

The record before the court revealed that, following suggestive interjections by her counsel, the nurse, who had worked as a labor and delivery nurse for almost 40 years until her retirement in 2008, indicated that she did not know if she would be able interpret the fetal monitoring strips satisfactorily.

When the Plaintiff’s attorney then attempted to explore the nurse’s ability to review and comprehend the strips, the nurse’s attorney objected and instructed the nurse not to answer any questions regarding the fetal monitoring strips.

In response, the Plaintiff filed a discovery motion seeking to compel the nurse to answer the questions presented. Plaintiff’s counsel also sought monetary sanctions due for requiring the Plaintiff to file this Motion.

Judge Terrence R. Nealon
Lackawanna County

After reviewing Pennsylvania law on the issues presented, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas noted that the Plaintiff was entitled to adequately probe the legitimacy and extent of any claimed incompetency by the nurse deponent regarding her ability to read or understand the fetal monitoring strips. The court noted that the issue of whether the nurse’s claim that she had no such abilities should be left to the jury to determine.

In so ruling, the court noted that counsel for a deponent “may direct the witness not to answer a specific question only if that instruction is necessary to (a) protect a recognized privilege, (b) enforce an evidentiary limitation established by an earlier court ruling in the case, or (c) present a motion for a protective order based upon grounds identified in Pa. R.C.P. 4012(a).

The court found that the instruction issued in this case by the attorney to the witness not to answer the Plaintiff’s questions were not based on any of the above noted reasons and, as such, the court granted the Plaintiff counsel fees incurred in preparing and presenting the discovery motion. 

The court also directed the nurse to submit to an additional deposition within the next thirty (30) days to answer the questions regarding her interpretation of the fetal monitoring strips and her ability to do so.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer P.C. for bringing this case to my attention.

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