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Plante v. Stack

Supreme Court of Rhode Island

February 6, 2015

Kristopher Plante et al.
Daniel Stack et al.
Bella Restaurant

Page 847

Providence County Superior Court. (PC 10-4432). Associate Justice Netti C. Vogel.

For Plaintiff: Mark S. Mandell, Esq.

For Defendants: Brian C. Newberry, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Justice Robinson, concurring. Chief Justice Suttell, concurring in part and dissenting in part. Justice Goldberg, concurring in part and dissenting in part.


Page 848

Indeglia, Justice.[1]

The defendants, Daniel Stack (hereinafter Stack) and the Disabled American Veterans

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Department of Massachusetts, Inc. (collectively referred to as the defendants), seek review of three Superior Court discovery rulings related to the litigation in this negligence action. The defendants request that this Court reverse the rulings of the Superior Court justice: (1) denying the defendants' motion to compel additional testimony from material fact witnesses; (2) granting the plaintiffs' motion for a protective order limiting the defendants' planned neuropsychological examination of the plaintiff; and (3) revoking the pro hac vice admission of defense counsel. We granted the defendants' petition for the issuance of a writ of certiorari and heard oral arguments on October 2, 2014. For the reasons set forth herein, we deny the petition for certiorari in part and grant it in part.


Facts and Travel

In March 2008, plaintiff, Kristopher Plante[2] (plaintiff or Kristopher) was injured in a head-on collision with Stack on Route 102 in Burrillville, Rhode Island. It is undisputed that Stack operated his vehicle while he was intoxicated, failed to activate his headlights, and crossed the center line in the road, crashing into plaintiff's vehicle. On July 29, 2010, plaintiffs filed a complaint sounding in negligence against Stack and the Disabled American Veterans Department of Massachusetts, Inc., the owner of the vehicle driven by Stack. The defendants do not dispute liability insofar as it relates to the accident, but they do dispute Kristopher's claim for damages.

In the complaint, plaintiffs alleged that Stack's negligence has left Kristopher with " severe and permanent injuries to his mind and body" and that the injuries were of such a significant nature that Kristopher could no longer perform his usual activities. In addition, plaintiffs alleged that Kristopher had suffered a loss of earnings and a permanent loss of earning capacity. Specifically, plaintiffs allege that Kristopher suffered cognitive difficulties as a result of the accident, including concentration issues during his first year as an undergraduate student at the University of Rhode Island. The defendants concede that Kristopher suffered orthopedic and head injuries, but they contend that Kristopher has made a nearly complete physical and cognitive recovery.

The defendants responded with an answer to the complaint and a third-party complaint for contribution and indemnity against Bella Restaurant. The third-party complaint alleged that Bella Restaurant violated the Dram Shop Act, G.L. 1956 chapter 14 of title 3, when it negligently and/or recklessly served Stack while he was in a state of intoxication as defined by § 3-14-3(c). The defendants further alleged that Bella Restaurant knew, or reasonably should have known, that Stack was visibly intoxicated when it served alcohol to him. On October 11, 2011, defendants petitioned for the admission of Attorney Darrell Mook (Attorney Mook) pro hac vice as associate trial counsel on the grounds that Attorney Mook specialized in dram shop cases and had a long-standing relationship with defendants' insurer. This petition was granted by a Superior Court justice on October 21, 2011.

Kristopher Plante's deposition was taken at the offices of plaintiffs' counsel on April 9, 2012, at about 10 a.m, concluding

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at about 3 p.m. that same day.[3] At the deposition, Kristopher revealed that his parents divorced in 2009, one year after the accident. Upon learning of the divorce, Attorney Mook asked a series of follow-up questions about the Plantes' living arrangements, to which plaintiffs' counsel objected. The plaintiffs' counsel indicated that the question dealt with an improper subject matter and was an attempt to embarrass the deponent. Over counsel's objection, Kristopher answered that his parents were living together prior to 2009. At other points in the deposition, Attorney Mook asked questions about various matters pertaining to Kristopher's bicycle use, romantic relationships, sexual activity, and religious beliefs.

The depositions of Kristopher's parents, Teresa (Mrs. Plante) and Timothy (Mr. Plante), took place on May 2, 2012, at the offices of plaintiffs' counsel. Mrs. Plante's deposition lasted about one hour and forty-five minutes, and Mr. Plante's deposition lasted about two hours. Toward the end of Mrs. Plante's deposition, Attorney Mook began to question her about the divorce to ascertain the effect it might have had on Kristopher. The plaintiffs' counsel objected to this line of questioning and expressed concern over its personal nature. Attorney Mook asked if Mrs. Plante could give the reason for the divorce, to which plaintiffs' counsel objected and instructed Mrs. Plante not to answer on the ground that it was not relevant to the case. Asserting that the Plantes' divorce was highly relevant, Attorney Mook asked if she had had a discussion with Kristopher regarding the divorce, to which she gave an affirmative response. When Attorney Mook asked for specifics relating to that conversation, plaintiffs' counsel again objected and instructed Mrs. Plante not to answer. Attorney Mook then reiterated that the divorce was relevant since it could have been a " stressor" in Kristopher's life and could have affected his overall development. Notwithstanding that explanation, plaintiffs' counsel instructed Mrs. Plante not to answer the questions.

Attorney Mook then shifted the questioning toward the potential impact of the divorce on Kristopher, but Mrs. Plante testified that Kristopher was " fine with it." After Mrs. Plante stated that her son seemed " a little slow," based on comments made to her by a friend who was a special needs teacher, Farzana Jalalkhan, Attorney Mook suspended the deposition subject to a reservation of rights on the questions that were not answered upon the instruction of plaintiffs' counsel.

At Mr. Plante's deposition, defense counsel announced that he was going to ask divorce-related questions, to which plaintiff's counsel objected and again instructed the deponent not to answer. Once more, defense counsel explained that he was not trying to embarrass plaintiffs, but that he sought to understand the effect the divorce might have had on Kristopher. Later in the deposition, Attorney Mook asked Mr. Plante about Mrs. Plante's current living arrangements, specifically about whether she was living with somebody at that time. The plaintiffs' counsel objected and instructed Mr. Plante not to answer on the ground that it had nothing to do with this case " in any conceivable realm." Attorney Mook then asked if Mr. Plante knew Mrs. Plante's friend Farzana, to which Mr. Plante replied that he did. Attorney Mook continued, asking what the relationship was between Mrs. Plante and Farzana and, specifically, whether they

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were involved in a romantic relationship. The plaintiffs' counsel objected to each question and instructed Mr. Plante not to answer. Subsequent questions regarding Kristopher's feelings about Mrs. Plante's relationship with Farzana were objected to in the same fashion. Attorney Mook concluded that line of questioning by reserving the right to ask those questions if a judge should order Mr. Plante to respond.

On August 2, 2012, following a failed attempt at mediation, defense counsel informed plaintiffs' counsel of his intent to reconvene Mr. and Mrs. Plante's depositions on the issues surrounding the divorce. Defense counsel also notified plaintiffs' counsel that he intended to have Kristopher examined by a neuropsychologist and that he intended to depose two or more of Kristopher's treating physicians. In their August 3, 2012 response, plaintiffs' counsel reasserted that any divorce discussion was irrelevant and put defendants on notice that any further depositions would have to be completed by August 30, 2012, the time set for close of discovery. On August 7, 2012, defendants identified their examining neuropsychologist as Nancy Hebben, Ph.D., and asked that Kristopher attend an examination on September 21, 2012. The plaintiffs agreed to the examination request, but required that it be performed before the close of discovery on August 30th.

On August 9, 2012, defendants filed a motion to compel further deposition testimony of Mr. and Mrs. Plante regarding the reasons for the divorce. On August 20, 2012, plaintiffs filed a motion to appoint a single justice to preside over all future discovery and trial on the ground that discovery had not been properly conducted. The Presiding Justice thereinafter assigned the case to a single justice.

Between August 24 and August 29, 2012, defense counsel deposed three of Kristopher's treating physicians. Sherri Provencal, Ph.D., the doctor who had performed neuropsychological examinations on Kristopher shortly after the accident in May 2008, was deposed on August 24, 2012. Over plaintiffs' counsel's objection, Dr. Provencal testified that a divorce or parenting issue could be a " stressor" for a young person entering high school or college. Further questioning was also objected to by plaintiffs' counsel on the ground that Dr. Provencal was not testifying as an expert witness, but as a fact witness. Similar objections were made at the depositions of Richard M. Terek, M.D., Kristopher's original orthopedic surgeon, and Danny E. Humbyrd, M.D., who had been retained by Kristopher's parents to give a second opinion regarding Kristopher's femur fracture.

On September 12, 2012, plaintiffs filed four pleadings with the court: (1) objections to defendants' motion to extend the depositions of Mr. and Mrs. Plante, and to compel Kristopher's attendance at the neuropsychological examination; (2) a motion for a protective order regarding the neuropsychological examination, asking that it be limited in time and scope such that plaintiffs' counsel be allowed to be present; (3) a motion to amend the complaint to add a claim for punitive damages based on the use of alcohol; and (4) a motion to revoke Attorney Mook's pro hac vice admission on the grounds that he had not provided the dram shop assistance which was the alleged reason for his admission; that his questioning of plaintiffs had been personally invasive and harassing; and that he had sought opinions from plaintiffs' fact witness experts.

The matters were heard by the assigned hearing justice on September 18, 2012. The hearing justice began by deferring to rule on Attorney Mook's pro hac vice status, allowing him two weeks to respond

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and to obtain counsel. The hearing justice then permitted defendants' neuropsychological examination of Kristopher by Dr. Hebben on the condition that no history be taken and that plaintiff be allowed to have up to two representatives at the examination, including an attorney and/or a nurse paralegal. Finally, the hearing justice summarily denied defendants' motion to compel further deposition testimony from the Plantes.[4]

At the hearing on the motion to revoke Attorney Mook's pro hac vice admission, which was conducted on October 2, 2012, plaintiffs contended that Attorney Mook questioned Drs. Provencal and Humbyrd as if they were expert witnesses when they were clearly designated as fact witnesses. In his defense, Attorney Mook asserted that his questioning was merely an attempt to test the foundation for the medical interpretations and opinions of the deponents. Attorney Mook also reiterated his position that the divorce was relevant to assessing Kristopher's mental and cognitive state in the time period that formed the basis for calculating plaintiffs' damages.

Upon conclusion of the parties' arguments, the hearing justice found that Attorney Mook had violated Rules 11 and 26(f) of the Superior Court Rules of Civil Procedure, and as a result she revoked his pro hac vice admission. She concluded that questions regarding Kristopher's sexual activity, his romantic life, the Plantes' divorce, and Mrs. Plante's sexual orientation were too personal in nature and that the questions in these areas were designed to humiliate and embarrass the deponents. Citing Ondis v. Pion, 497 A.2d 13 (R.I. 1985), she concluded that Attorney Mook had crossed the line with plaintiffs' treating physicians by asking them to explain the basis for their opinions and medical interpretations. In addition to revoking Attorney Mook's pro hac vice admission, the hearing justice ordered that Attorney Mook present a copy of her decision to opposing counsel in any case where he had already been granted pro hac vice admission in Rhode Island as well as in any future cases in Rhode Island where he sought appointment.

One week later, on October 9, 2012, the hearing justice heard further arguments on the conditions sought to be placed on the neuropsychological examination to be conducted by Dr. Hebben. The defendants contended that the presence of a third party in the interview portion would not be an issue, but that the presence of a third party during the testing portion of the examination would " disrupt the testing protocols." [5] Highlighting the length of Kristopher's deposition, as well as the questioning that she perceived was designed to embarrass and humiliate the witness, the hearing justice upheld the conditions already placed on the neuropsychological examination. The hearing justice found that the conditions would serve to protect plaintiff from " further humiliation, embarrassment and exhaustion."

The defendants filed their petition for a writ of certiorari on October 26, 2012, which this Court granted on June 3, 2013. Before this Court, defendants ask that each of the hearing justice's three rulings -- the denial of the motion to compel further testimony from the Plantes regarding the divorce, the granting of plaintiffs' motion for a protective order regarding the neuropsychological examination, and

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the revocation of Attorney Mook's pro hac vice admission -- be reversed.


Standard of Review

" Our review of a case on certiorari is limited to an examination of 'the record to determine if an error of law has been committed.'" State v. Poulin, 66 A.3d 419, 423 (R.I. 2013) (quoting State v. Greenberg, 951 A.2d 481, 489 (R.I. 2008)). " In addition to examining the record for judicial error, 'we inspect the record to discern if there is any legally competent evidence to support the findings of the hearing justice below.'" Id. (quoting Brown v. State, 841 A.2d 1116, 1121 (R.I. 2004)).

" When we evaluate questions of law, our review is de novo." Pierce v. Providence Retirement Board, 15 A.3d 957, 961 (R.I. 2011). " Like questions of statutory construction, the interpretation of court rules of procedure is a legal question for the court." McDonough v. McDonough, 962 A.2d 47, 54 (R.I. 2009) (citing Crowe v. Countryside Realty Associates, Co., LLC, 891 A.2d 838, 840 (R.I. 2006) (applying de novo review to interpretation of Rule 26)).

" Under Rule 11, a trial justice has discretionary authority to formulate what he or she considers to be an appropriate sanction, but must do so in accordance with the articulated purpose of the rule: 'to deter repetition of the harm, and to remedy the harm caused.' * * * As such, this Court will not reverse a trial justice's imposition of sanctions for a litigant's misconduct unless 'the trial court based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.' * * * Therefore, we will reverse an imposed sanction only if the trial justice has abused his discretion in imposing that sanction." Pleasant Management, LLC v. Carrasco, 918 A.2d 213, 217 (R.I. 2007) (quoting Michalopoulos v. C & D Restaurant, Inc., 847 A.2d 294, 300 (R.I. 2004)).



Professor Robert B. Kent has spent the better part of his distinguished career studying and commenting on this state's Superior Court Rules of Civil Procedure. Professor Kent recognizes that " the discovery machinery is designed to operate largely without judicial intervention. Professional cooperation on the part of counsel is essential to an effective working of the system." Robert B. Kent et al., Rhode Island Civil Procedure § 26:1, V-11 (West 2006). Quoting a former Superior Court justice, Kent declares: " The discovery provisions of the new [sic] rules require liberal interpretation if they are to serve the intended purpose. The so-called ambush theory of trial is laid to rest. Both sides are now able, if they know the rules and use them skillfully, to come to trial better prepared to meet contentions, arguments and evidence of the other side." Id. (quoting Licht, Observations on Some Aspects of the Discovery Provision of the New Rules, 1966 Rhode Island Bar Annual 1, 7). " The scope of discovery is exceedingly broad," and its principal limitations are that the information sought must be relevant to the pending matter and not privileged. Id., § 26:3 at V-12.

Professor Kent's teachings on depositions are especially helpful to this Court. He instructs that, in the event of an objection to " the competency of a witness or the competency, relevancy, or materiality of testimony," opposing counsel should not advise the deponent not to answer the question. Robert B. Kent et al., § 30:8 at V-47. Instead, " [w]hatever the objection

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may be, Rule 30(d)(1) [of the Superior Court Rules of Civil Procedure] requires counsel to make it in a nonargumentative and nonsuggestive way." Robert B. Kent et al., ยง 30:8 at V-47. Professor Kent opines, " [i]f the objection cannot be cured, the record should reflect that fact as well as the ground on which it is ...

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