PATRICIA NOONAN, individually and in her capacity as EXECUTRIX of and on behalf of the beneficiaries of THE ESTATE OF WILLIAM J. NOONAN, LINDA BYRNE, TERRI PARE, KAREN LECAM, AND STEVEN NOONAN, Plaintiffs,
RHODE ISLAND HOSPITAL, BARRY SHARAF, M.D., PHILIP STOCKWELL, M.D., NAZIA KHAN, M.D., PETER B. RINTELS, M.D., and SUNDARESAN T. SAMBANDAM, M.D., Defendants.
Plaintiff: Jane R. Duket, Esq. Joseph Marasco, Esq.
Defendant: William H. Jestings, Esq. Scott D. Levesque, Esq.
Mark P. Dolan, Esq. Paul F. Galamaga, Esq.
the Court is the Plaintiffs' Motion to Compel Deposition
Testimony of Defendant Peter B. Rintels, M.D. This matter
came on for hearing on September 27, 2018. Jurisdiction is
pursuant to Super. R. Civ. P. 37(a).
Facts and Travel
October 12, 2016, the wife and children (Plaintiffs) of
William J. Noonan filed a medical malpractice action against
Rhode Island Hospital and five doctors involved in the care
and treatment of Mr. Noonan. Plaintiffs allege that as a
result of Defendants' negligence, Mr. Noonan was
prescribed an anti-coagulant drug in error, causing his
sudden death. Peter B. Rintels, M.D. (Dr. Rintels), a named
defendant, was Mr. Noonan's hematologist during the
events that allegedly caused his death. During a deposition
of Dr. Rintels on May 21, 2018, Plaintiffs' attorney
asked Dr. Rintels several questions concerning the medical
treatment of Mr. Noonan, and his counsel instructed him not
to answer. Plaintiffs now move to compel Dr. Rintels'
assert that this Court should compel Dr. Rintels to answer
counsel's deposition questions because the only instance
in which a deponent may refuse to answer a deposition
question is when doing so would require the disclosure of
privileged information. Plaintiffs contend that the questions
are related to Dr. Rintels' role and knowledge in
relation to Mr. Noonan's care and treatment. In response,
Dr. Rintels avers that he should not be required to answer
because Plaintiffs' counsel was improperly attempting to
have Dr. Rintels provide expert testimony as to the standard
of care and the possible breach of that standard.
to Super. R. Civ. P. 30(c), any objections made during an
oral deposition should be noted by the stenographer; however,
"the examination shall proceed with the testimony being
taken subject to the objections." Additionally, counsel
is only permitted to instruct a deponent not to answer
"when necessary to preserve a privilege, to enforce a
limitation on evidence directed by the court, or to present a
[specified type of] motion." Super. R. Civ. P. 30(d)(1);
see also Super. R. Civ. P. 26(b)(1) (providing that
"[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter
involved in the pending action").
Kelvey v. Coughlin, 625 A.2d 775, 776-77 (R.I.
1993), our high court opined on the need for witnesses to
answer deposition questions. The trial justice granted the
plaintiff's request to redepose the defendant after the
defendant's counsel made "improper comments,
objections, and instructions" and the Supreme Court
affirmed. Id. at 775. The high court pressed for
attorneys to allow deponents to answer, unless the question
seeks a matter protected by privilege, and to allow the
deposition to proceed to its conclusion. Id. at 776.
Plante v. Stack, 109 A.3d 846 (R.I. 2015), the
Kelvey precedent was challenged when a pro hac
vice attorney stretched our Supreme Court's patience
to its limits. The case involved a negligence action brought
by a plaintiff who was left permanently disabled as a result
of a collision with a defendant who was driving while
intoxicated. Id. at 849. In a nothing-barred
deposition of the plaintiff, opposing counsel inquired of
romantic relationships, sexual history and religious beliefs.
Id. at 850. He asked plaintiffs' parents to
explain the specific reasons for their divorce, and asked the
father to describe who his ex-wife was living with and her
present romantic relationship. Id. at 850-51. As if
those inquiries did not polarize the plaintiff sufficiently,
counsel then wreaked havoc with plaintiff's
physicians-asking hypothetical questions and treating them as
retained experts. Id. at 851. Not surprisingly, the
hearing justice revoked counsel's pro hac vice
status. Id. at 852.
high court reversed in a split decision finding the
attorney's behavior did not warrant such severe
punishment. Id. at 846, 860. Referencing Professor
Kent's time-honored rationale, the court emphasized that
opposing counsel should only instruct his or her client not
to answer a deposition question when the information is
privileged. Id. at 853-54. See 1
Robert B. Kent et al., Rhode Island Civil Practice
§ 30:8, V-47, V-48 (West 2006). Fortunately, such
callous interrogations are a rarity here. Scorched earth
tactics are discouraged by the professionals in the Rhode
Island bar, and common decency is embedded in the court's
construction of its civil rules. See Rules of
Prof'l Conduct, App. I, B. Lawyer's Obligations to
Opposing Parties and Their Counsel ¶ 17 ("I will
take depositions only when actually needed. I will not take
depositions for the purposes of harassment or other improper
are unique proceedings. Although witnesses provide testimony
under oath, no judicial officer is present to rule on
objections and limit the inquiry. Various states handle
problematic inquiries in different matters. See W.
J. Dunn, Construction and effect of Rules 30(b), (d),
31(d), or the Federal Rules of Civil Procedure, and similar
state statutes and rules,relating to preventing,
limiting, or terminating the taking of depositions, 70
A.L.R.2d 685 (1960). In the hope that depositions will
proceed without interruption or extensive ...