Trial Court Provides Instruction on Scope of Ability of Deponent's Attorney To Properly Interject at a Deposition

In the case of Early Bird Carwash, Inc. v. Piermattei, No.  (C.P. Lyc. Co. Sept. 18, 2023 Linhardt, J.), the court granted in part and denied in part discovery motions filed by both parties in a legal malpractice action.

Of note, the court granted the Plaintiffs’ Motion to Reconvene a Deposition after defense counsel was found to have obdurately and acrimoniously interrupted Plaintiffs’ attorney’s initial attempt at a deposition by way of the defense counsel engaging in continual, repeated objections that were found to be meant to obstruct the course of the deposition.

The court noted that a deposition is meant to be a question-and-answer conversation between the deposing attorney and the witness.

With that in mind, the court noted that the deposing lawyer is entitled to pursue a chosen line of questioning without improper interjections by the witness’s attorney.

Judge Linhardt noted that an attorney for the deposition witness should not act as an intermediary by interpreting questions, deciding which questions the witness should answer, and/or by helping the witness to formulate answers.

In this matter, the court found that the attorney for the Defendants repeatedly and continuously interrupted the deposition testimony by interposing objections, instructing the witness not to answer questions, and otherwise providing commentary on the questions presented and the exhibits being utilized.

The court admonished that the defense attorney’s clear intent was to prevent Plaintiffs’ attorney from pursing his line of inquiry and the deposition from taking its natural course.

The court found that the conduct of defense counsel was obdurate but not necessarily acrimonious, and that defense counsel’s conduct ultimately prejudiced the Plaintiffs by repeatedly and unnecessarily interrupting the deposition.

Accordingly, the court directed that the Defendants submit to a repeat deposition. Defense counsel was ordered to bear the cost of the same. The court also ordered the Defendants should present one or more witnesses properly prepared to answer questions on the designated topics. Additionally, counsel for the Defendant was told to keep interjections to a minimum. The court did decline to issue an award of attorney’s fees as a sanction.

In another Order in this decision, the court ordered the Defendant to provide responses to the Plaintiffs’ requests for discovery of an electronic records, or to explain the unavailability of the associated electronic storage media.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 21, 2023).

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.

Supplemental Deposition of Med Mal Defendant Allowed On Limited Basis

In the medical malpractice case of Venosh v. Henzes, No. 11 - CV - 3058 (C.P. Lacka. Co. Jan. 18, 2018 Nealon, J.), the Lackawanna County Court of Common Pleas granted in part and denied in part a Plaintiff's motion to compel relative to requested additional discovery responses from, and a supplemental deposition of, a defendant doctor.

In this case, the Plaintiff attempted to secure the additional deposition of the doctor after the Plaintiff had certified the case for trial under a certification that all discovery had been completed.  The Plaintiff wished to depose the doctor on a written statement he had made to a health insurer relative ot an internal quality-of-care review of the treatment provided to the Plaintiff.

The court allowed the deposition but circumscribed the scope of the questioning to a very narrow issue.  The court noted that no prejudice was established relative to the additional discovery, particularly since the trial date was still nine months into the future.

Anyone wishing to review this Opinion by Judge Nealon may click this LINK.