Opinion
Index No. 800072/2022
01-27-2022
Charles Romanelli, Individually and as Administrator of the Estate of Gia V. McGinley, Plaintiff, v. Sadie Moss-Jones, CNM, HUDSON HIGHLANDS MIDWIFERY, PLLC, KEITH B. LESCALE, M.D. and HUDSON VALLEY PERINATAL CONSULTING, PLLC, Defendants.
Unpublished Opinion
HON. GINA C. CAPONE, J.S.C.
The following papers, numbered 1-11, were read and considered on the Plaintiff's Order to Show Cause seeking an order, pursuant to New York's Dead Man Statute (CPLR 4519), precluding (1) the deposition testimony of Sadie Moss-Jones, CNM, as to discussions had between Ms. Moss-Jones and the Plaintiff's decedent, and (2) any expert testimony based upon the discussions had between Ms. Moss-Jones and the Plaintiff's decedent.
PAPERS NUMBERED
Order to Show Cause/ Attorney Affirmation in Support/ Exhibit A 1-3
Attorney Affirmation in Opposition/ Exhibits A-F 1-10
Attorney Affirmation in Reply 11
Use of a Deposition at Trial is governed by CPLR 3117(a), which states that all or any portion of a deposition may be utilized at trial under certain specific instances. However, use of any part or all of a deposition is strictly contingent upon the deposition itself being admissible under the rules of evidence. As is relevant here, CPLR 3117(a)(2) provides, in relevant part, that:
"the deposition testimony of a party or of any person who was a party when the testimony was given [...], may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition tesitmony is offered in evidence."
CPLR 4519, known as New York State's Dead Man Statute, reads, in relevant part, as follows:
"Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event [...] shall not be examined as a witness in his own behalf or interest [...] concerning a personal transaction or communication between the witness and the deceased person [...]"
Here, the Plaintiff has moved to preclude the admission or use of any part of Sadie Moss-Jones' deposition transcript at trial which concerns any conversations between Ms. Moss-Jones and the decedent, and more specifically, any deposition testimony by Ms. Moss-Jones that the decedent declined the medical advice of Ms. Moss-Jones, who urged her to have an elective c-section at a hospital (Affirmation in Support at ¶14, 30). Similarly, the Plaintiff has moved to preclude any testimony from the Defendants' expert that is based upon those inadmissible portions of Ms. Moss-Jones' deposition transcript. Specifically referencing pages 5 and 6 of the June 30, 2021, "Defendants' Amended Expert Witness Response Pursuant to CPLR 3101(d)(1)", counsel for the Plaintiff argues that, to the extent Defendants' expert is expected to reference Ms. Moss-Jones' testimony in his/her/their own testimony, such references to any "discussions" between Moss-Jones and the decedent and the decedent's decisions as a result thereof, as well as any reference to the deposition testimony by Moss-Jones that she "informed" the decedent of the risks of having a VBAC, the risk of uterine rupture, the risk of maternal death and hemorrhage, and the risk that the decedent or the baby could suffer a worse outcome with home birth than with having a birth in a hospital, must be precluded as those aspects of the deposition transcript are inadmissible and excludable under the Dead Man's Statute.
Here, it cannot be disputed that, at the time Ms. Moss-Jones sat for her deposition, she was "a party interested in the event," as she and her midwife practice were both named defendants in the action and she was being deposed as a defendant in the action and testifying on her own behalf, as well as her midwife practice. It also cannot be disputed that the Plaintiff, as the administrator of the estate of the deceased, is a person with standing to assert the Dead Man's Statute, and that Ms. Moss-Jones' testimony concerned transaction(s) or communication(s) with the decedent. As such, the statute would apply to the parts of Ms. Moss-Jones' deposition testimony concerning those transactions and communications and render those portions inadmissible and excludable (see Kunitz v Funk, 197 A.D.3d 1006 [2d Dept 2020]; Wall St. Assoc. v Brodsky, 295 A.D.2d 262 [1st Dept 2002]).
Nevertheless, this Court finds that the Plaintiff has waived his right to assert the Dead Man's statute with respect to the Defendants' expert's utilization of Ms. Moss-Jones' deposition transcript in rendering an expert opinion in this matter by Plaintiff's counsel's decision to provide Ms. Moss-Jones' deposition transcript to his own expert witness for use in the exact same manner.
On consent by the parties and with the permission of the Court, the Plaintiff's expert, Dr. Marc Engelberg, M.D., videotaped his trial testimony on January 7, 2022. The parties agreed that any objections to the videotaped trial testimony would be made on the record at the time, the transcript would be provided to the Court prior to the pre-trial conference, and any objections raised by counsel would be addressed by the Court as soon as possible so that the videotaped trial testimony could be modified as necessary before being played for the jury.
Upon this Court's review of Dr. Engelberg's testimony and the parties' objections thereto, Dr. Engelberg made clear that, in formulating his professional and expert opinions in this case, he reviewed, among other things, the deposition of Ms. Moss-Jones (Engelberg Transcript:109:25, 110:3-5). He was questioned at length about Ms. Moss-Jones' deposition testimony and rendered opinions based upon her prior testimony (Engelberg Transcript:110-112, 113-114, 118-120, 141-144, 149-150). Counsel for the Plaintiff contends that the questions about Ms. Moss-Jones' deposition testimony were asked by Defendants' counsel on cross-examination and constituted an improper effort by counsel to get otherwise inadmissible evidence before the jury. While it is true that Dr. Engelberg was not asked on direct specifically about his review of Ms. Moss-Jones' deposition testimony, he nevertheless testified on cross examination that his expert opinion was based upon his review of all of the materials and he did specifically acknowledge having reviewed, among other things, Ms. Moss-Jones' deposition transcript. That such a fact was not elicited on direct does not make the Doctor's testimony that his expert opinion was based on his review of, inter alia, those records less relevant. It is impossible for the Court, in reviewing the transcript of pre-recorded trial testimony, to parse out whether any, all, or none of Dr. Engelberg's expert opinions were formed and based upon Dr. Engelberg's review of the same deposition testimony the Plaintiff now contends is patently inadmissible and excludable under the Dead Man's Statute. By providing the deposition testimony of Ms. Moss-Jones to his expert for use in formulating his expert opinion in this case, the Plaintiff has tacitly acknowledged the relevance and importance of Ms. Moss-Jones' testimony in rendering an expert opinion in this matter. Indeed, one major aspect of Dr. Engelberg's expert opinion is that the decedent was not properly informed of the risks associated with attempting a VBAC at home under her circumstances. The Doctor's opinions in this regard cannot be divorced from his review of the deposition testimony of Ms. Moss-Jones regarding the discussions and conversations she had with the decedent regarding the risks associated with attempting a VBAC at home under her circumstances.
The Court further notes that Plaintiff's request that Defendant's expert be precluded from rendering an expert opinion based upon the same documents and testimony utilized by Plaintiff's own expert does not further the purpose of the Dead Man's Statute, to achieve adversarial balance by sealing the lips of the surviving party, and would violate the principal that the Dead Man's Statute may be used only as a shield, not a sword.
The Plaintiff's determination to utilize Dr. Engelberg to provide expert testimony with respect to this case and the Plaintiff's decision to permit Dr. Engelberg to review and formulate his opinions using the exact evidence Plaintiff now contends must be precluded as inadmissible under the Dead Man Statute, constitutes a waiver of the protections afforded thereby. As such, the branch of the Plaintiff's motion which sought an order precluding the Defendants' expert from offering expert testimony based upon those aspects of the deposition testimony of Sadie Moss-Jones, CNM, concerning discussions between Ms. Moss-Jones and the Plaintiff's decedent, is denied.
The Court further finds, however, that the waiver by the Plaintiff will not extend to the utilization of any part of Ms. Moss-Jones' deposition transcript at trial which concerns any conversations between Ms. Moss-Jones and the decedent. While both sides' experts will offer opinions which are based, in part, upon those experts' review and consideration of Ms. Moss-Jones' deposition testimony, including the discussions between Ms. Moss-Jones and the decedent, as noted above, Ms. Moss-Jones was an interested party at the time of her deposition testimony and, thus, her testimony about her conversations and/or transactions with the decedent are inadmissible and excludable pursuant to the Dead Man's Statute.
Finally, in a single sentence in his order to show cause, the Plaintiff states that the Defendant, Dr. Lescale, "cannot provide testimony as to communications with the Plaintiff's decedent" pursuant to the Dead Man's Statute. The Court finds that Dr. Lescale is "a party interested in the event," testifying on his own behalf; the Plaintiff, as the administrator of the estate of the deceased, is a person with standing to assert the Dead Man's Statute; and, thus, any testimony from Dr. Lescale concerning transaction(s) or communication(s) with the decedent would be barred by the Dead Man's Statute. Accordingly, it is hereby
ORDERED that the branch of the Plaintiff's motion which sought an order precluding the deposition testimony of Sadie Moss-Jones, CNM, as to discussions had between Ms. Moss-Jones and the Plaintiff's decedent is granted; and it is further
ORDERED that the branch of the Plaintiff's motion which sought an order precluding any expert testimony based upon the expert's review of those aspects of Ms. Moss-Jones' deposition transcript concerning conversations and/or transactions between Ms. Moss-Jones and the Plaintiff's decedent is denied; and it is further
ORDERED that the branch of the Plaintiff's motion which sought to preclude Dr. Lescale from testifying as to communications between himself and the Plaintiff's decedent is granted.
The foregoing constitutes the Decision and Order of the Court.