Opinion
No. X10-UWYCV-034010134S
March 8, 2007
MEMORANDUM OF DECISION
Before the court is the plaintiffs' motion for sanctions and the defendants' memorandum in opposition. The plaintiffs are the conservators of Krista Dunn who is suing the defendants for professional negligence resulting in her cardiac arrest and resulting permanent and pervasive brain injury. Ms. Dunn had delivered twins at the defendant hospital and returned as a patient for care for an infection. Her conservators claim that the defendants failed to diagnose an enlarged heart condition called peripartum cardiomyopathy, which led to her cardiac arrest, oxygen deprivation and resulting brain injury.
In the course of discovery the plaintiffs have taken the deposition of Dr. Vincent Quagliarello, an infectious disease specialist, and Dr. Coralie Shaw. At the deposition of Dr. Quagliarello, the parties stipulated "that each party reserves the right to make specific objections in open Court to each and every question asked and the answers given thereto by the witness, reserving the right to move to strike out where applicable, except as to such objection as are directed to the form of the question." Simply put, then, the deponent was to answer the question unless the objection was to form.
At the deposition of Dr. Shaw, plaintiffs' counsel sought to ask questions of Dr. Shaw which required her to read radiology films that the doctor does not recall ever reading during her care of Ms. Dunn. The defendants' counsel objected and prevented her from reading the films and being questioned on them. Plaintiffs' counsel stated on the record at the time "I just want to make sure that we're clear on what we're doing here, and we'll take this up with Judge Monroe [sic] at some point down the road." At that point counsel for the plaintiffs at the deposition was Attorney Ziotas of the law firm of Silver, Golub and Teitell.
The plaintiffs subsequently took Dr. Quagliarello's deposition. This time it was Attorney Silver of the same law firm deposing the witness. He asked the witness if he had reviewed certain radiological films in his care of Ms. Dunn. Dr. Quagliarello indicated he did not recall the patient or any of the care he had provided her. He did describe his practice regarding such films and indicated that it was his practice to review film he ordered.
The plaintiffs' counsel then asked Dr. Quagliarello to read certain films that he would then be questioned about. Again defendants' counsel objected and would not allow the doctor to read films he had not testified he read as part of his care of the patient, Ms. Dunn. Atty. Silver maintained he had the right to have these questions answered. Before the court is the motion for sanctions addressed to this very issue.
The law and its considerations in this area were well summarized in a similar motion by a brother trial court judge.
As said in Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138 (1984): "All questions, including those objected to, are to be answered; . . . unless the objecting party procures from the court a protective order precluding or limiting the scope of disclosure." Practice Book § 221. Id. at page 143. The method chosen by the plaintiff to interrupt the deposition, if countenanced, would entirely disrupt deposition procedures. A party has a perfect right to object at trial to any deposition testimony, Practice Book § 248(2); if it wants more protection, all it has to do is follow the rules providing for the securing of pre-deposition protective orders.
If improper, bad faith, or oppressive questions are asked during a deposition, the procedure is for counsel to immediately contact a Superior Court Judge for a ruling, Practice Book § 247(c) not direct a witness to refuse to answer a question, cf Pozzio v. Breedlove, 1 Conn.Sup. 714 (1986). Pavlinko and Pozzio might be said to go too far in a situation where during a deposition unanticipated questioning concerning a privilege occurs. The plaintiff cites in this regard Westport National Bank v. Wood, 31 Conn.Sup. 266 (1974). There Judge, now Justice Berdon said where a valid claim of self-incrimination arises the person being deposed can exercise his or her rights without having to get in advance an order of protection and without as the decision implies having to bear the costs of an interrupted deposition. But this case is authority against the plaintiff since the court goes on to say that where the questions asked are merely irrelevant such testimony would be inadmissible in any event. "The person whose deposition is sought should not be allowed to refuse to answer on this ground unless a protective order is first obtained." Id. at pp. 268-69.
Goenne v. Aetna Life Cas., 1994 WL 65219, *2 (Conn.Super.) (Conn.Super., 1994) [ 11 Conn. L. Rptr. 149]. The defendants did not file a motion for protective order after the Shaw deposition. Apparently, by their argument, they thought the burden was on the plaintiffs to seek court intervention as a result of the above-referenced comments by Attorney Ziotas. The court finds that the area of questioning while perhaps irrelevant is not of a constitutional magnitude. The defendants go on to ask the court to accept Justice Berdon's reasoning in the matter of Cahn v. Cahn, 225 Conn. 666, *681-82 626 A.2d 296, **303 (1993). That case was a certified question solely on the propriety of the trial court refusing to allow a party's deposition testimony into evidence. Most of the majority opinion revolved around a discussion of the law as it pertains to the reasonableness of notice of the depositions and motions for protective order. It did not go to any issues surrounding the questions or nature of the questions to be expounded as Justice Berdon in his concurring opinion, signed by him alone, stated in dicta.
I am concerned about the suggestion, in both the majority and dissenting opinions, that a party deponent must answer all questions asked at a deposition unless the party procures a protective order. They further suggest that the failure to do so would subject the party deponent to sanctions, including the draconian result of dismissal of his or her cause of action. I do not read Practice Book § 247(b) FN5 to require the party deponent to answer every question proposed. Even if § 247(b) required such a result, I would question its constitutionality. A deponent cannot predict each question that will be asked, and is therefore unable to obtain a protective order for an unanticipated line of questioning. Would the court order sanctions if a party deponent refused to respond to an unanticipated line of questioning involving privileged communications between the party and his or her attorney? Our holding in Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 470 A.2d 246 (1984), cited in both opinions, must be held to its facts — that is, the plaintiff-deponent refused to answer the question after he was given an opportunity to be heard before the trial court, and after he was ordered to answer by the trial court.
Cahn, 225 Conn. at 682.
Therefore, the court views this as his, Justice Berdon's, position alone and not the law of the case. Indeed, he refers to the majority and dissenting opinion as embracing an entirely opposite holding on the issue at hand.
The court finds that the defendants had no reason to rely on Attorney Ziotas' comment at the Shaw deposition inasmuch as no pleading for court intervention was filed by the plaintiffs. The defendants were, at that point, on notice that the plaintiffs might again ask a witness to read films that they had said they had not read before. This is not the scenario Justice Berdon contemplated. On notice, the defendants should have sought a protective order if they deemed it appropriate. Having entered into the `usual stipulations' (with the exception of reading and signing the deposition) it was too late to interject objections and block the answering of questions in the orderly course of the deposition. The court notes and reaffirms that discovery depositions often inquire into areas that will not be admissible at trial but may lead to admissible evidence. That is particularly true where a witness may be asked to look at a radiological study that he cannot say he never saw before but can only say he has no memory of seeing.
The result here cannot be countenanced or discovery will become an expanded battlefield for entrenched litigants. The court orders that if the plaintiffs seek to further depose Dr. Quagliarello and Dr. Shaw on the issues that defense counsel prevented them from inquiry, as discussed above, the defendants shall pay for the additional sitting fee costs charged by the court reporter for the reconvened deposition. Further, absent any subsequent court order (to the instant order) restricting the areas of inquiry, defense counsel shall not instruct his client not to answer the question at issue. Plaintiffs seek this order broadly as to other doctors so instructed. The relief is not expanded beyond Dr. Quagliarello and Dr. Shaw as there is nothing before the court in regard to any other deponents similarly situated.