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.

Photo by Andrea Piacquadio from www.pexels.com.

Court Compels Deposition of Defendant Over Defendant's Covid-19 Pandemic Fears

In the case of Espinosa v. Luthercare, No. 2019-CV-02130 (C.P. Leb. Co. July 28, 2021 Charles, J.), Judge Bradford H. Charles of the Lebanon County Court of Common Pleas issued a decision ordering a witness to give a videotape deposition testimony without a mask but while sitting in a room without anyone else present. The court granted the Motion to Compel at issue filed by a Plaintiff against a Defendant in a professional negligence action against a doctor and a nursing facility in which it was alleged that the decedent’s death was allegedly caused by the Defendants’ failure to evaluate and treat the decedent.

In this matter, the Plaintiff sought the Defendant doctor’s deposition.

The Defendant doctor asserted that he should be permitted to wear a mask due to concerns over COVID-19 during the deposition.

The Plaintiff argued that the Defendant should not be allowed to wear a mask but that the Plaintiff would agree to videotaping the Defendant’s deposition such that the Defendant’s doctor would be the only person in the room.

In rendering his decision, Judge Charles reviewed the Pennsylvania case law that stressed the importance of the fact-finder in being able to assess the demeanor of the witness.

The court additionally noted that witnesses in its courtroom had never been allowed to wear masks while testifying during the pandemic, noting it was the court’s belief that the fact-finder should be able to see the witnesses clearly as they testify.

The court noted that the facial expressions of a witness contribute to the overall demeanor of the witness and that the demeanor of the witness was a touch stone of any credibility assessment.

As noted above, the court, while noting the seriousness of the COVID-19 concerns, found that the proposed process of having the witness unmasked and in a room by himself would reduce the risk of infection to almost a de minimus level.

Under the discretion granted to trial court judges to manage the discovery process, the court crafted an Order compelling the unmasked, videotape deposition of the Defendant.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of above image:  Photo by Anshu A on Unsplash.com.

 

dancummins@CumminsLaw.net

(570) 319-5899

A Primer on Attorney Conduct At Depositions

A hotly debated issue in medical malpractice litigation over the past decade has been whether a defendant-physician can (1) refuse to answer standard of care questions or medical opinion questions or respond to requests to conduct a retrospective review of his/her own care so long as [s]he agrees not to testify as to those matters at trial (Allegheny County Judge R. Stanton Wettick (ret.) approach) or (2) can be compelled to answer deposition inquiries regarding standard of care, medical opinion, and/or retrospective review of care (Lackawanna County Judge Terrence R. Nealon approach).

In an Opinion issued earlier this week in the medical malpractice case of Lau v. Allegheny Health Network, G.D. 18 - 011924 (C.P. Allegh. Co. March 30, 2021 Ignelzi, J.), the Motions Court Judge in Allegheny County, Judge Phillip Ignelzi, abrogated the Judge Wettick approach for Allegheny County moving forward and adopted Judge Nealon’s approach as enunciated in Karim v. Reedy, 53 Pa. D. & C.5th 335 (Lacka. Co. 2016)(click this LINK to view that case) and Howarth-Gadomski v. Henzes, 2019 WL 6354235 (Lacka. Co. 2019)(click this LINK to view that case).

Judge Ignelzi held in Lau that defendant-physicians must now answer questions regarding standard of care, medical opinion, and/or retrospective review of care during their discovery depositions.

The decision is also notable for its instruction on the proper conduct of counsel during discovery, including at depositions. Judge Ignelzi frowned upon speaking objections and instructions by counsel to a witness not to answer a question.

The Court in Lau noted that an attorney should not instruct a witness not to answer a deposition question “unless counsel has objected on the ground that the answer is protected by privilege or a limitation on evidence directed by the Court.” See Op. at p. 33.

Judge Ignelzi adopted Lackawanna County Local Rule of Civil Procedure 4007.1(a), that states that counsel making an objection at a deposition shall state the word “objection,” and briefly state the legal basis for the objection without argument. See Op. at p. 30.

The Court also provides guidance on what types of deposition questions can be properly the subject of “objections to the form of the question,” and confirms that if such objections are not made during the course of a deposition, such objections to the form are considered to be waived under Pa.R.C.P. 4016(c).

More specifically, the Court found that deposition questions that are properly the subject to objections to the form of the question include “compound questions, questions that are ambiguous, unintelligible, misstatements of evidence or testimony, argumentative, assuming facts not in evidence, calling for speculation and deponent answers that are non-responsive.” See Op. at p. 29-30.

Anyone wishing to review this decision may click this LINK.

Pennsylvania Superior Court Addresses Admissibility of Expert Testimony At Trial

In the case of Rolon v. Davies, No. 2046 MDA 2018 (Pa. Super. April 28, 2020 Stabile, J., McLaughlin, J., and Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court provided guidance on their required elements for expert testimony to be admissible in a medical malpractice case.

In its decision, the Pennsylvania Superior reserved a trial court’s grant of a nonsuit in favor of a Defendant surgeon in a negligence case filed under allegations that one of his patients had died of a pulmonary embolism following surgery.

At the trial court level, the Defendants moved for a nonsuit under a claim that the Plaintiff’s expert did not offer his opinion to as reasonable degree of medical certain consistent with Pennsylvania law regarding the Defendant’s alleged negligence. The trial court judge granted that particular Defendant’s motion for a nonsuit and the jury eventually returned a defense verdict in favor of the other Defendants. The Plaintiff appealed asserting, in part, that the trial court judge erred in granting the nonsuit regarding the expert at issue.

The Superior Court reversed the trial court’s entry of a nonsuit after finding that the record confirmed that the Plaintiff’s medical expert stated he was certain of his opinion.  The Superior Court also noted that the Plaintiff’s medical expert also provided a thorough explanation as to how he arrived at his opinion given the evidence before him.

In its Opinion, the Superior Court provided a nice review of the requirements to allow expert testimony into evidence. The court reiterated the rule that an expert need not use the 'magic words' "to a reasonable degree of medical certainty” for her or his testimony to be admissible.   Rather, the Superior Court panel noted that, if the remainder of the expert’s opinion confirms that the expert expressed his opinion with reasonable certainty, then the opinion should be allowed into evidence as supportive of the case presented by that party offering the expert.

The court noted that an “expert fails this standard of certainty if [he] or [she] testifies that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” See Op. at 5 [citation omitted] [bracket inserted here].

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

Source: “Article – “Court Calls for New Med Mal Trial, Reversing Ruling That Expert Testimony Was Insufficient.” By P.J. D’Annunzio Pennsylvania Law Weekly (April 30, 2020).

Protective Order Relative to Defendant Surgeon's Deposition Denied in Medical Malpractice Action

In the case of Freas v. Aziz, No. GD - 004285, 1334 WDA 2019 (C.P. Allegh. Co. Oct. 30, 2019, Hertzberg, J.), the court issued a Rule 1925 Opinion to explain to the Superior Court why it denied a Motion for a Protective Order to shield a Defendant surgeon from providing deposition testimony in a medical malpractice case. The court noted that the Motion for a Protective Order had been denied because the Motion simply stated that the surgeon could not participate due to a medical condition and did not make a particularized fact-intensive showing of the need for such an Order.

The trial court noted that the Defendant surgeon provided a brief letter from another doctor who advised that the Defendant surgeon’s “medical condition does not permit him to participate in any depositions and/or give deposition testimony.” No further details were provided in the letter or in the motion as to why the surgeon could not participate in a deposition. 

According to the Opinion, the trial court had issued an Order deferring a final ruling on the Motion for Protective Order regarding the surgeon until a deposition had been completed of the other doctor who provided the letter, that other doctor providing his medical records on the Defendant surgeon, and the Defendant surgeon undergoing an independent medical examination relative to the Motion.

Overall, the trial court asserted that the Defendant’s vague explanation as to why the doctor could not participate in a deposition due to a medical condition failed to meet the standards for the entry of a protective order. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 17, 2019).

Judge Nealon of Lackawanna County Addresses Proper Scope of Deposition Questions to a Medical Malpractice Defendant Doctor

Should a Defendant physician in a medical malpractice case be required to answer questions regarding the standard of care applicable to the treatment she or he provided?

That was the issue decided by Judge Terrence R. Nealon in the case of Howarth-Gadomski v. Henzes, No. 18-CV-2585 (C.P. Lacka. Co. Nov. 27, 2019 Nealon, J.).

According to the Opinion, a Defendant physician’s attorney refused to permit the physician to answer questions at a deposition seeking the doctor’s medical opinions, including those related to the applicable standard of care.

The Plaintiff filed a motion seeking to compel the doctor to answer those questions during a second deposition.

In opposition, the Defendant physician asserted that he cannot be compelled “to testify against himself,” and asserted that the Plaintiff must present their own expert testimony to address the standard of care.

The Plaintiff countered the argument that, under Pa. R.C.P. 4003.1(c), it is not a ground for objection to any discovery inquiry that the information sought involves an opinion.

The court ruled that no Pennsylvania statute, rule, or appellate authority entitles a medical malpractice Defendant/deponent to refuse to answer questions soliciting medical opinions, including those regarding the standard of care.

Judge Nealon noted that the explanatory comments to the Rules of Civil Procedure 4003.1, 4003.5, along with Pennsylvania case law, support the proposition that a party deponent may not object to deposition questions on the basis that they seek opinion testimony. Those rules also confirm that a Defendant-physician need not author a pre-trial expert report since any Plaintiff may discover that party’s opinions at a deposition.

As such, the court in this matter granted the Plaintiff’s Motion to Compel the Defendant physician to attend a second deposition. The court also ordered the Defendant physician to answer medical opinion and standard of care questions.

The court did note that, during the second deposition, defense counsel may direct the Defendant-physician not to answer a specific question only if that instruction is necessary to assert and protect a recognized privileged, to enforce and evidentiary limitation established by any earlier court rulings in this case, or to present a Motion for a Protective Order based on the grounds allowed under Pa. R.C.P. 4012(a).

In this decision, the court also noted that, if the Defendant-physician and his attorney chose to discuss the subject matter of this malpractice care during any recess of the deposition, the questioning attorney may discover whether such a conversation occurred, but may not further question the deponent concerning the contents of that discussion.

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