It Ain’t Over ‘Til It’s Over: Judge Wettick Affirms Practice of Limiting Deposition Opinions of Defendant Physicians

Defense Digest, Vol. 22, No. 4, December 2016

By Matthew P. Keris, Esq.*

A common deposition practice by plaintiff lawyers is to ask the defendant health care provider to offer his or her opinion about whether the standard of care was met. Traditionally, this question will draw objection from defense counsel, who will instruct the witness to not answer the question. The reason for the objection is that expert testimony as to standard of care would be provided by a specialist with more knowledge than the treating physician. With an additional statement on the stenographic record by defense counsel that the defendant will not be providing expert testimony on his or her own behalf at the time of trial, in a majority of cases, nothing comes of the objection. Defendants typically do not provide standard of care testimony at deposition.

At the beginning of 2016, defense counsel began receiving more resistance to the limitations of deposition opinion testimony. For example, in Karim v. Reedy, 2016 Pa. Dist. & Cnty. Dec. LEXIS 1159 (C.P. Lacka. Jan. 11, 2016), Judge Terrence Nealon specifically disagreed with this practice, as well as a decision from the Honorable R. Stanton Wettick of Allegheny County that memorialized it—McLane v. Valley Medical Facilities, Inc., 157 P.L.J. 252 (C.P. Alleg. 2009). In the Karim case, Judge Nealon ordered a physician to provide standard of care testimony, not only as to the witness’s own standard of care, but as to the co-defendant health care provider’s as well. Whereas Judge Wettick prohibited this testimony on relevance grounds, Judge Nealon reasoned that this type of testimony is relevant at deposition (as opposed to trial testimony that the jury considers) because the scope of discovery is broad, allowing a party to seek information that is reasonably calculated to lead to the discovery of admissible evidence, and due to the fact that the information sought involves an opinion.

From a practical perspective, Judge Nealon’s decision ran contrary to typical Pennsylvania deposition practice and was hailed a victory by members of the plaintiffs’ bar. Had Judge Nealon’s decision been affirmed by an appellate court, it would have compelled a witness to not only comment on his or her standard of care, but also as to the standard of care of others. It would have further created the need to prepare substantive motions in limine in advance of trial to prohibit a defendant physician’s opinions from jury consideration, given the plaintiffs’ bar’s practice of videotaped deposition testimony playback at trial.

However, in Lattaker v. Magee Women’s Hospital of UPMC, 2016 Pa. Dist. & Cnty. Dec. LEXIS 1144 (C.P. Alleg. July 5, 2016), Judge Wettick re-evaluated his prior decision in McLane and commented on Judge Nealon’s opinion in Karim. Judge Wettick compared the two decisions and affirmed his prior ruling. In Lattaker, Judge Wettick considered a motion to reconvene a defendant physician’s deposition after the attorney would not allow his client to answer deposition questions regarding the interpretation of fetal monitoring strips. In ordering the physician to return to deposition to answer those questions, Judge Wettick held that, “[n]othing in my McLane decision suggests that a party may object to the testimony of a treating physician or any other witness who testifies that a review of a slide, chart, report, x-ray, and the like may be helpful in refreshing the witness’s memory.” He further provided guidance about the scope of his McLane ruling and contrasted it with Judge Nealon’s Karim opinion.

Judge Wettick held that Lattaker and Karim both permit robust discovery relevant to what the witness remembers. According to Wettick, the only difference between the cases is that, under his analysis, the defendants cannot be asked at deposition what they see and reasons why the medical treatment provided did or did not fall below the standard of care. The primary difference between the opinions is that Judge Wettick does not allow standard of care testimony by a physician defendant primarily on relevancy grounds, whereas Karim uses a more broad evidentiary standard that allows a party to seek information, including opinion testimony, that is reasonably calculated to lead to the discovery of admissible evidence.

Lattaker and Karim are trial court opinions that serve as legal precedent in those cases only. That being said, many plaintiffs’ lawyers hailed Karim as a way to compel opinions at deposition. From a practical standpoint, a defense attorney confronted with the Karim decision can argue and counter with Lattaker. As it currently stands, the issue of doctors’ opinions at depositions can be argued both ways, at least until an appellate court offers further guidance. Until then, if defense counsel does not want a client to be compelled to provide standard of care testimony at deposition, he or she can continue the practice of having them state on the deposition record that they will not serve as an expert at the time of trial and instruct their client not to provide answers to those questions if asked. This protective practice ain’t over until an appellate court says it’s over.

*Matt is a shareholder in our Scranton, Pennsylvania office who can be reached at 570.496.4602 or mpkeris@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}