I recently had a win at an appellate court in Rochester, New York, (Thompson v Mather) that has been the subject of chatter within the New York medical malpractice lawyer blogosphere, and even made an entry on one of our nation’s top legal blogs, Eric Turkewitz’ New York Personal Injury Law Blog. If Turkowitz found my appellate win fit to blog about, I figured I should blog about it myself. So here’s the real scoop, from the horse’s mouth:
My partner, Lee Michaels, sued a doctor for medical malpractice, and needed to take the deposition of his client’s treating cardiologist (whom Lee had NOT sued) because that doctor had information Lee needed to prove his client’s injuries. Lee scheduled a video-taped deposition (a deposition to be used at trial in lieu of live testimony) of the doctor-witness in our law office in Auburn, New York.
Lo and behold, the doc witness shows up with a medical malpractice defense lawyer, even though he had not been sued, and was just a witness. Not unusual. Now-a-days, many malpractice insurers require their insured doctors to notify them when they are subpoenaed as a witness in a medical malpractice case, and then send a lawyer with the doc to the deposition.
But this was not just any lawyer. It was an obstructionist lawyer. The lawyer was objecting up and down to many of my partner’s questions. She was making it very difficult for Lee to get a nice flow of testimony. She was even suggesting, by her objections, the answers the doctor should be giving.
Lee had enough of that, called the deposition off, and asked me to bring a motion to, well, shut the doc’s insurance lawyer up. I researched the issue, and found absolutely no New York cases that talked about what a lawyer for a non-party witness could and could not do or say at a deposition. I found a statute, however, CPLR 3113, that seemed promising. Essentially it said that examination and cross-examination at depositions must proceed just like they would at trial. I thought about this. Hmm . . . at trial, a non-party witness has no right to “lawyer up”, so why should he have that right at deposition?
I brought this argument to the judge, but he did not buy my argument — and instead ruled that Lee’s client had to either release the witness-doctor from liability for any malpractice he might ever have committed on her, or else Lee would just have to call the doctor to trial for live testimony instead of taking his video-taped deposition for use at trial.
I appealed and, guess what? The appellate court in Rochester agreed with me. Those guys up in Rochester sure know how to read a statute! The Court specifically held that Lee was entitled to take the videotaped deposition of his client’s cardiologist and that the doc’s insurer-provided lawyer was barred from objecting or otherwise participating in the deposition. Moreover, the appellate Court seemed pretty miffed at the trial judge for trying to force our client to sign a release in favor of the testifying doctor in exchange for allowing the deposition to proceed. The Court found that placing such a condition on the doctor’s duty to testify at deposition was “repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand.” Holy Cow! You can almost see the American flags waving in the background of that sentence!
So there you have it, the story from the horse’s mouth.