New York Personal Injury Law Blog » Depositions, Medical Malpractice


February 26th, 2010

Is Non-Party Witness Entitled to Attorney at Deposition? (Appellate Court Says No)

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
pre-trial deposition.”

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.

9 thoughts on “Is Non-Party Witness Entitled to Attorney at Deposition? (Appellate Court Says No)

  1. The typical obstructionist tactics of counsel for non-party physicians is to limit the questioning to factual issues (i.e., when, what, and where), and direct the non-party physician not to answer questions that call for opinion testimony, i.e., deviations from the standard of care.

    While this is the most common obstructionist approach by counsel for non-party physicians, the Uniform Rules of Trial Courts do not permit such tactics under 22N.Y.C.R.R. 221.2 pertaining to depositions.

    22 N.Y.C.R.R. 221.2 defines when the attorney defending a deposition can direct his witness not to answer. Such a direction cannot be given unless: (1) preserve a privilege or a right of confidentiality; (2) enforce the limitations set forth in a court order; or (3) the question is plainly improper and if answered would cause significant prejudice.

    To avoid the obstructionist tactics, keep a copy of the uniform rules ready at the EBT and have the phone number for the Judge ready just in case.

    John H. Fisher

  2. What happens though if, during the deposition, the non-party some how incriminates himself… can he still then be added as a party? Would his testimony at that dep. be tossed?

  3. What happens though if, during the deposition, the non-party some how incriminates himself… can he still then be added as a party? Would his testimony at that dep. be tossed?

    Tossed on what basis? He made a statement against his own interest.

    The only real problem I see with the rule is if one side starts asking a fact witness questions designed to elicit expert testimony.

    I can't see how someone could be compelled to be an expert, which means the doc would have to be his own lawyer and decline to answer.

    That is what I see as the natural problem that will arise.

  4. As a plaintiff attorney, I could sue one defendant and before the SOL expires depose the real targets without their having counsel.

  5. The practice of having doctors bring their own lawyers to depositions is one of my pet peeves. It starts with the inevitable delays in getting things scheduled with yet another busy professional, basically adding 4-6 weeks onto getting the deposition done.

    In Illinois, where I practice, there is one dominant medical malpractice carrier. Defense lawyers are not permitted to have ex parte conversations with the treating doctors, but it seems that this gets back-doored by conversations between the lawyers.

    It should not be any surprise that once the dep actually gets going that the non-party doctor does not remmeber anything other than what is written on the chart and cannot comment on the meaning of anything else that has been written down. To me, this kind of coaching is clearly obstructionist because the witness obviously used the records in treating the patient and had some understanding as to what the meaning of the chart entries was at the time. To then get in a deposition and say, "You'll have to ask whoever wrote that what that means" is nonsense.

    As far as the problem with involuntary expert testimony, that is a risk that both sides have to live with, but it should never be a bar to getting the opinions. These doctors have the training and expertise to render an opinion, and if they have and and are asked under oath, they should give it. They do so routinely in regular PI cases. It may put them in an uncomfortable position in a med mal case, but that should not relieve them of the obligation to testify truthfully.

    I absolutely love the opinion, will read it and probably will start using it because our rules are very similar.


  6. Very interesting post and discussion. I am a RN and for years I did legal nurse consulting which I loved. After that I switched gears to reviewing medical and legal documents for Merck. I still love to learn what the attorneys are thinking these days in regards to PI and med mal. Stephanie

  7. @Lawrence "As a plaintiff attorney, I could sue one defendant and before the SOL expires depose the real targets without their having counsel."

    And, as a plaintiff attorney, do you think that's ethical?

  8. This is my case. I just want to clarify that, under this Fourth Department ruling, non-party doctors are allowed to bring a lawyer with them to depositions. It’s just that the lawyer cannot talk! Now what good is a lawyer if he can’t talk? Well, maybe he can signal, using body language or some other less obvious form of communication. Maybe he can just cough loudly when the doc should be careful with the question. But hey, that’s “talking” too, just not with words. The point of this case is that the CPLR says depositions must proceed AS AT TRIAL. What can a non-party doctor’s lawyer do at trial? Sit there, on the other side of the railing, with the public, mum as a stone. So that’s what he has to do in the deposition room, too. By the way, I have just received, notice from the doctor-witness’ attorney that he plans to move to the Fourth Department for a clarification. Apparently, he wants the Court to clarify that the lawyer can at least object to questions intended to harass or embarrass, or object when the question impinges on a privilege. But he should lose those arguments. The key is, what can the doc’s lawyer do at trial? Certainly he can not blurt out, “objection!” from the other side of the railing. No, he simply has to train and instruct his doc ahead of time to make his own objections. This doc's lawyer(actually, his med mal insurer's lawyer) would do better to lobby the legislature for an amendment to CPLR 3113.

    Mike Bersani

  9. Mike:

    Thanks for the additions.

    The real problem, of course, is that while a deposition is supposed to proceed as at trial, at the deposition there isn't any judge to sustain objections and stop the questioning from going off the rails into the imperissable.

    So here's what I'm thinking: We will see motions to quash (or limit) the subpoenas, and if a questioner tries to go beyond the subpoena (asking expert questions to fact witness) then the lawyer for the nonparty jumps on the phone to the judge and prays s/he can be reached.