March 22, 2009
No Civil Claim Based On Tough Deposition Questioning
The New Jersey Appellate Division affirmed the dismissal of a lawsuit brought against an attorney and her law firm by the opposing parties in litigation based on allegations of deposition misconduct. The clients' child had been born with medical problems but was discharged from the hospital. The next day, the baby was brought to the emergency room, seen by a doctor, but was not admitted. She died two days later. The lawyer was retained to defend the emergency room doctor.
At the husband's deposition, he had suggested that the doctor was guilty of negligent homicide. The lawyer questioned him regarding that suggestion (the relevant questions and answers are recited in the court's opinion).
The questions resulted in a suit against the lawyer seeking damages for "outrage" and claiming intentional or negligent infliction of emotional distress. The suit contended that the deposition conduct was "outrageous and inhumane" and was "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency."
The court here held that the lawyer was obligated to closely question and challenge the deponent: "That [he] was distraught and enraged at his loss does not mean that he is entitled to have his statements go unquestioned." The court also agreed that the lawyer defending this action should not be disqualified. He had previously represented the plaintiff's lawyer but had never had an attorney-client relationship with the plaintiffs. (Mike Frisch)
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