Noonan v. Rhode Island Hospital

         Providence Superior Court

          For Plaintiff: Jane R. Duket, Esq. Joseph Marasco, Esq.

          For Defendant: William H. Jestings, Esq. Scott D. Levesque, Esq. Mark P. Dolan, Esq. Paul F. Galamaga, Esq.

          DECISION

          LANPHEAR, J.

         Before 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).

         I Facts and Travel

         On 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' deposition testimony.

         II Analysis

         Plaintiffs 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.

         According 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").

         In 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.

         In 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.

         The 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.^[1] 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 purpose.").

         Depositions 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 ...