Manuel Cabral v. JMA (2015)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO LIMIT DEPOSITION (# 136)

A dispute has arisen concerning the manner and scope of the participation of defendant Michael Frazier's attorney, Andrew O'Keefe, in the deposition of the plaintiff's expert, J. Winslow Alford, M.D., on October 21, 2014.   The court has reviewed the plaintiff's motion, # 136, which was submitted on the papers on March 16, 2015, including the entire transcript of Dr. Alford's deposition, and the opposition of defendant Michael Frazier, # 139, including the excerpt of the transcript of the plaintiff's deposition.

In expert witness depositions, it is customary and proper for the party who calls an expert for deposition in lieu of appearing at trial to pay the expert's fee, including for adversaries' fair cross examination.  Practice Book § 13–4(c)(2).   Fair cross examination of course includes credibility, which in turn includes examination related to credibility even when the effort to discredit the witness appears substantially unsuccessful.   See Conn.Code Evid. § 6–4 (allowing any party to impeach the credibility of a witness);  Dubreuil v. Witt, 65 Conn.App. 35, 42, 781 A.2d 503 (2001) (scope of cross examination is limited by the scope of the direct examination unless the witness's credibility is attacked).   However, if and when the deposition ceases to be that of the party who called it—if it becomes an adversary's discovery deposition by going unreasonably beyond the scope of the direct examination, let alone becomes a desultory expedition, unduly burdensome on the witness's, the parties' and fellow counsel's time and purse—it is proper for the cost of the expert's attendance to shift to the adversary.  Practice Book § 13–4(c)(1) and (2) (court power to issue orders concerning expert witness depositions);  § 13–5 (protective order).   Cross examination does not cease to be fair only when it is conducted in bad faith, such as by asking questions the basis of which is or should be known to be false or just to increase the deposing party's costs.   Cross examination ceases to be fair when it results in oppression of the witness, is unreasonably beyond the scope of direct examination or annoying or embarrassing to the witness,¹ or simply conducted in such a way that time is unreasonably wasted.

While the court finds that some of the interruptions, objections and questions by Attorney O'Keefe about which the plaintiff complains are well within the letter and spirit of the rules of practice, including of course the rules governing attorney's conduct, the court finds that, cumulatively, the effect of Attorney O'Keefe's work went beyond fair cross examination.   Examples include an unjustified claim of not having an exhibit (pages 6–7);  asking what MRI was under discussion when there was only one (page 13);  an unjustified objection that the witness was reading from a document “not in evidence” when the document, marked for identification, was under active interrogation (page 17);  asking the witness to count the number of the plaintiff's visits when Attorney O'Keefe either knew or could easily have known the number if it were important (page 45);  interrupting the witness (page 60, 87);  cross examination about a non-existent disagreement (page 78–79);  asking the witness to read aloud a paragraph from the defense medical examiner's report for no reason supported by any follow up interrogation about that report (page 82);  and asking argumentative questions (pages 88–91).   The 63–minute cross examination by Attorney O'Keefe was about ten minutes longer than the direct examination (53 minutes, excluding a 5–minute recess).   While a cross-examiner is entitled to wide flexibility, there are limits and, as to cross examination of Dr. Alford on the plaintiff's direct examination, Attorney O'Keefe reached the limit on behalf of Mr. Frazier.   See Practice Book § 13–30(c) (court may, on motion, to limit the scope and manner of examination after deposition has begun);  Practice Book § 13–5 (court may make any order which justice requires to protect party from oppression, etc., during discovery);  Practice Book § 13–27(e) (allowing the court to decrease the time allowed for a deposition).

The motion is granted:  defendant Michael Frazier's cross examination on the plaintiff's direct examination is limited to what his attorney conducted on October 14, 2015.   Further relief, such as an order of contribution to the costs of Dr. Alford's attendance or of that day's videography or transcript, is denied.   The continuation of the deposition of Dr. Alford for a) cross examination by counsel for defendants JMA Trucking, Inc., and Timothy Fowler;  b) redirect examination by plaintiff's counsel;  and c) recross examination by all defendants, including Mr. Frazier, shall proceed in accordance with the rules of practice and the stipulations of the parties.   This ruling is without prejudice to any further motion for costs or other sanctions based upon a good faith claim that the plaintiff's continued deposition of Dr. Alford has ceased to be the plaintiff's deposition with reasonable cross examination.

Cole–Chu, J.

FOOTNOTES

FN1. See Practice Book § 13–30(c), which distinguishes “to annoy, embarrass, or oppress the deponent” from bad faith.   See also Practice Book § 40–52 (depositions in criminal cases)..  FN1. See Practice Book § 13–30(c), which distinguishes “to annoy, embarrass, or oppress the deponent” from bad faith.   See also Practice Book § 40–52 (depositions in criminal cases).

Cole–Chu, Leeland J., J.