Lackawanna County Judge, Terrence R. Nealon, recently addressed the issue of deposition speaking objections, in the case of The Fiduciary Trust Co. Int’l of Pa v. Geisinger-Community Medical Center, et al., No. 20-CV-4775 (March 4, 2022).
Plaintiff, The Fiduciary Trust Co. Int’l of Pa (“Fiduciary”), is the guardian ad litem for A.W., a minor who was born at Defendant, Geisinger-Community Medical Center (“Geisinger”). Fiduciary sued Geisigner for negligence arising out of A.W.’s birth. Defendant, Ann Griffiths, R.N. (“Griffiths”), a labor and delivery nurse with 40 years of experience, attended to A.W.’s labor and delivery, and was accused of failing to properly manage the labor of A.W.’s mother by, inter alia, failing to identify abnormal fetal heart patterns.
In her deposition, Griffiths testified that the purpose of fetal monitoring tracings is to observe the fetal heart rate and contraction pattern to determine whether the baby is receiving sufficient oxygen. She described fetal heart patterns demonstrating prolonged decelerations, late decelerations, persistent minimal variability are non-reassuring signs that can be associated with fetal hypoxia, and require various response measures, including the notification of the obstetrician. Of particular concern is the management of Pitocin, a medication used to increase the number and strength of contractions to augment labor, which can cause fetal distress.
During her deposition, Fiduciary’s counsel provided Griffiths with the fetal heart tracings, and was prepared to have her interpret them. However, Geisinger’s counsel suggested that a foundation be established as to whether she could interpret the strips. By the time of her deposition, Griffiths had been retired for 14 years and had not evaluated a fetal heart pattern for that period of time, so she testified that she did not know if she would be able to interpret the tracings satisfactorily. When Fiduciary’s counsel asked Griffiths what has occurred over the 14 years that would impact her ability to look at the strip today and describe what she sees, when defense counsel stated, “I don’t know that she may know why…it could be the passage of time…or it could be out of practice.” Fiduciary’s counsel objected to defense counsel’s statements as witness “coaching,” and advised counsel that he was going to ask Griffiths to interpret the tracings, at which time defense counsel stated that Griffiths was not going to answer those questions.
Fiduciary’s attorney sought a court Order compelling Griffiths to interpret the fetal heart tracings, or testify as to why she cannot interpret them, and requested monetary sanctions for defense counsel’s improper conduct during Griffiths’ deposition. Defense counsel argued that he acted appropriately in relaying Griffiths’ position concerning the provision of impermissible speculative testimony.
Judge Nealon went through an exhaustive list of cases governing the history of permissible discovery in Pennsylvania leading up to I.L. V. Allegheny Health Network, 2021 WL 1234495 (Alleg. Co. 2021), wherein the Court concluded that a defendant-physician can be asked opinion questions, including standards of care, and properly grounded hypothetical questions, in depositions. Moreover, the Court in I.L. concluded that it is appropriate and permissible treating physician to be required to review fetal monitoring strips and be questioned about the review and whether the treatment provided to the patient met the standard of care.
Ultimately, Judge Nealon concluded that Griffiths did not testify that she was incompetent to interpret any or all of the fetal heart tracings, she merely testified that she might not be able to interpret them satisfactorily. Moreover, the Court ruled that defense counsel did in fact assert a blanket objection and instruction not to answer any questions concerning the fetal monitoring strips.
In Pennsylvania, counsel are permitted to direct a witness not to answer a specific question only if that instruction was necessary (1) to assert and protect a recognized privilege, (2) to enforce an evidentiary limitation established by an earlier court ruling in this case, or (3) to present a motion for a protective order based upon the grounds identified in Pa.R.Civ.P. 4012(a), i.e., unreasonable annoyance, embarrassment, oppression, burden, or expense. See Howarth-Gadomski v. Henzes, 2019 WL 6354235, at *10 (Lacka. Co. 2019).
Judge Nealon concluded that Griffiths shall participate in another deposition to answer counsel’s questions concerning her current interpretation of the fetal heart tracings. “The jury will assess the credibility of any claim by Griffiths that she has lost any ability to review and understand fetal heart tracings. See McMichael v. McMichael, 241 A.3d 582, 590 (Pa.2020).
Turning to the issue of monetary sanctions for defense counsel’s conduct during Griffith’s deposition, Judge Nealon referenced the seminal holding in Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D. 525 (E.D. Pa. 1993), wherein the Court held that counsel shall not direct or request that a witness no answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the court. Accord Howarth-Gadomski, supra.
After an exhaustive review of the law governing the permissible conduct by attorneys at depositions, Judge Nealon concluded that defense counsel failed to limit his objection as to the form of the question, “without argument” in the presence of Griffiths. Therefore, pursuant to Pa.R.Civ.P. 4019(a)(1)(viii) and (g)(1), the Court Ordered Griffiths to reimburse Fiduciary for the counsel fees incurred in obtaining this order of compliance.