The idea that a witness testifying at a deposition would not be entitled to have an attorney is somewhat startling. But that is, in fact, what the Appellate Division, Fourth Department held earlier this month in Thompson v. Mather, when they firmly established that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a
The issue arose during a medical malpractice case involving obstetrical and gynecological treatment and the prescription of oral contraceptives. Plaintiff claimed they were contraindicated. The patient suffered an acute myocardial infarction.
Plaintiff wanted to video the testimony of the treating cardiologists, who were not defendants. The doctors showed up with lawyers provided by their own medical malpractice insurers, who then proceeded to obstruct the questioning. The deposition was abandoned and motion practice ensued.
The lower court, in one of the most bizarre rulings I’ve ever heard of, suggested that these doctors who had never been sued should be released from liability before unrestricted testimony was to take place! The court suggested that plaintiff and defendants are to
“consider providing general releases to the [physicians] . . . with respect to their initial treatment of [plaintiff]” and that, if such releases are provided, plaintiff will “be entitled to have a videotaped deposition of [the physicians] during which deposition the attorneys for the [physicians] shall not be permitted to speak. . . .”
Holy mackerel. In reversing the lower court, the Appellate Division called that “repugnant.”
But first they addressed the issue of having counsel at the deposition, and came down firmly against it. Why? Because CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” The parties can object later, but the witness isn’t a party. If this was a trial, the witness would not have a lawyer in the well of the courtroom to object.
And then they kicked the lower court judge but good with respect to that nonsense about providing a release to a witness before testimony could ensue:
…we note that the practice of conditioning the videotaping of depositions of witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental nonparty obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents’ contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.
The unanswered question that I have, given that the lawyers for the cardiologists were provided by their medical malpractice insurance carrier. Is it the same carrier as the defendants?
And that question was answered by one of the attorneys involved: No. But certainly something to look for if the situation should arise elsewhere, as may well happen with this ruling if such non-party depositions become more common.