News Assumption of Risk Stands Strong (NY) October 11, 2013 < Back Share to: In Cruz v. Longwood Central School District, the plaintiff was struck in the mouth by a softball thrown by a fellow student while participating in pre-game warm ups with her school’s softball team. Seconds before being struck, Cruz had shut her eyes and raised her arm as she sneezed. Cruz and her parents argued that the after-school supervisor's temporary absence from the athletic field or his alleged lack of training was a proximate cause of Cruz’ injury. The Second Department rejected these arguments and affirmed the lower court’s dismissal of Cruz’ claim on the basis of her primary assumption of the risk. In doing so, the court noted that Cruz was struck so quickly that no amount of supervision could have prevented the accident. The Second Department further upheld the longstanding doctrine of primary assumption of risk, noting Cruz voluntarily participated in the softball warm-up and, in doing so, consented to those injury-causing events, conditions and risks that are inherent in the activity. Since Cruz was an experienced softball player, she knew the risks inherent in the activity and thereby assumed those risks of being hit by the softball. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com .   Previous Next Contact

News Mystery Photos Defeat Summary Judgment (NY) February 21, 2013 < Back Share to: To sustain a claim for a fall on an allegedly raised sidewalk, the plaintiff must show that the defendant owner had at least constructive notice of the condition. However, in a recent case, beyond his testimony of the condition, the plaintiff had nothing more to establish the existence of the condition other than photos of unknown origin. Without more substantial proof, the defendant filed for summary judgment. In Molinari v. 167 Housing Corp, the plaintiff testified as to the location and cause of his fall based on photos that he could not authenticate as to identity of the photographer or date taken. Nevertheless, he testified that the photos accurately depicted the condition of the sidewalk at the time of the accident. The First Department affirmed denial of the defendant's summary judgment motion finding that his testimony that the photos fairly and accurately depicted the condition at the time of the accident was sufficient despite the lack of foundation as to who took the photos or when. Moreover, the Court opined that the condition depicted raised an issue of fact as to whether the defendants had constructive notice of the defect. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Storm in Progress Defense Rejected Where Weather Records Are Not Certified August 9, 2024 < Back Share to: When defendants move for summary judgment in New York, the evidence presented must meet the required standards. Generally, evidence submitted in support of a motion for summary judgment must be in admissible form and certain records must be affirmed or certified. The failure to provide such evidence can be fatal to summary judgment motions as seen in a recent decision of the Second Department. In Ahmed v. Fulton Nostrand, LLC , the plaintiff was injured when she allegedly slipped and fell on ice on a Brooklyn sidewalk. She sued the adjacent store and its landlord, and both defendants moved for summary judgement based on New York’s “storm in progress” rule, which exempts property owners from liability for accidents caused by snow and ice during an ongoing storm until a reasonable time has passed for the owners to address the hazards. The Supreme Court accepted this argument and granted the defendants' motion. The Second Department reversed, holding that defendants’ weather records showing that a storm was still ongoing near the time of plaintiff’s alleged accident were not certified and that the deposition testimony did not conclusively resolve whether there was a storm in progress at the time of the accident or if plaintiff had slipped on a preexisting condition. The Second Department thus held that defendants were unable to eliminate all triable issues of fact as to the storm in progress defense and the Supreme Court erred in awarding summary judgment to defendants. The Ahmed decision underscores the importance of using certified climatological data in lawsuits involving weather conditions at the time of an accident. Without such evidence, a defendant will be unable to establish the necessary basis for asserting a “storm in progress” defense to a premises liability claim. Thank you to Christian Thompson for his contribution to this post. Ahmed Decision .pdf Download PDF • 733KB Previous Next Contact

News Third Circuit Permits §1983 Claims To Proceed Against Healthcare Facility Permitting Unsupervised Visit When There Is “Foreseeable Harm” February 11, 2022 < Back Share to: In Mears v. Connolly, et al., the United States Court of Appeals for the Third Circuit reversed the district court’s dismissal of the plaintiffs’ §1983 claims against a nurse and hospital that permitted a visitor to remain with a patient unsupervised, who then violently attacked by the patient. Plaintiffs Jun-Lori Mears and Michael Mears sued a nurse, among others, after June-Lori Mears was attacked by her son, who suffers from bi-polar disorder. Over the course of his three years in Greystone Park psychiatric, he attacked several other patients, even sending one to the intensive care unit. Despite his violent outbursts, hospital staff informed his parents that it was safe to visit him. Further, Brenden’s nurse, despite knowing of Brenden’s violent tendencies and recent outbursts, she did not supervise the visit. Brenden attacked his mother and broke several of her ribs. The incident caused her severe psychological trauma. The Mears sued the hospital and nurse under §1983. The district court dismissed the claims, reasoning that the nurse had not affirmatively acted to create a danger and that the mother had not suffered a “foreseeable and fairly direct” harm. However, the Third Circuit reversed, reasoning that the nurse had personally supervised Brenden for months, knew of his violent propensity, and saw that just three days prior to the visit he had been acting bizarre. The court concluded that this was enough to put her on notice of the serious threat that Brenden posed to the mother’s health on an unsupervised visit. The Circuit Court broadened the meaning of “foreseeable harm” to include that “foreseeable” does not actually require any specific history of violence. Thanks to John Lang for his contribution to this article. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Cumulative Error Wipes out $4.5 Verdict (NJ) June 10, 2016 < Back Share to: In Torres v. Pabon and Suburban Disposal, Inc., New Jersey Supreme Court Justice Patterson, writing for a unanimous court, granted a new trial based upon five cumulative errors in a motor vehicle accident case. The decision reversed a jury verdict in plaintiff’s favor awarding $4.5 million in damages with 55% of fault (or $2.7 million) allocated to the defendant. The defendant Pabon, a sanitation driver for Suburban Disposal, inspected the garbage truck before beginning his route. He noticed that some of the truck’s taillights were covered with debris that could not be removed with a cloth. At approximately 4:30 am, he proceeded with his route anyway. Presumably, it was dark at that time and the truck’s rear lights were allegedly obstructed. The garbage truck was forced to merge left when it entered a construction area. Plaintiff, who was driving behind the garbage truck in a Nissan Altima said, “[S]he saw a dark silhouette … but could not make it out because it was camouflaged with everything around there … [W]hen she realized that the object was a truck, she stomped on her brakes but within one of two seconds, my right side, the driver’s side hit into the back of the truck.” The five errors included adverse inference charges given with respect to the defense's failure to call the defendant driver and its orthopedic expert, improper admission of plaintiff's untimely requests for admissions, improper admission of damages testimony given by plaintiff, and an incorrect jury charge on liability issues. The groundwork for the errors began well before trial. Originally, the defendant driver had left the country and could not be deposed. Plaintiff’s counsel moved to bar the testimony (and for an extension of the discovery end date). In the meantime, the truck driver’s deposition was taken. However, unaware of the development, the Court granted the motion barring the driver’s testimony at trial. At trial, the plaintiff read portions of the driver's testimony to the jury and convinced the judge to give an adverse inference instruction to the jury when the driver did not testify in person. The Supreme Court found that this piling on was improper and that the inference was not warranted in any event - especially since the plaintiff read his testimony to the jury. Likewise, the Supreme Court found that it was highly improper to allow such an adverse inference charge related to the failure to call the orthopedist holding that generally such an inference is not favored with respect to expert witnesses. About three weeks before trial, the plaintiff’s counsel served request for admissions regarding opinions expressed by the defendant’s orthopedist expert. Defense counsel did not answer the requests because they were untimely. However, the court permitted the plaintiff to read the admissions to the jury. The Supreme Court held that this was reversible error not only because the demands were untimely, but also because that discovery tool is intended to secure “facts within defendants’ knowledge or attempt to authenticate documents.” Instead, plaintiff’s counsel sought admissions for selected portions of the defense’s expert report that were read to the jury in an abuse of discretion. As to damages, the plaintiff’s medical bills were paid entirely by PIP. However, over the defense counsel’s objection plaintiff told the jury, “I have no – no peace of mind, I have no money, I have all these bills, all these hospital bills. How do they want me to pay for a helicopter ride? I have no clue. Hundreds of thousands of dollars.” This testimony was reversible error pursuant to New Jersey’s 1998 Automobile Insurance Cost Reduction Act (“AICRA) that prohibits speculation about medical expenses. See N.J.S.A. 39:6A-1.1 et seq. The judge also mistakenly instructed the jury with respect to the duty owed. Unlike the classic rear-end hit case, the plaintiff had actually rear-ended the defendant. Thus, when the judge instructed the jury that the defendant had a duty to follow the plaintiff's vehicle at a safe distance, he “juxtaposed” the vehicles incorrectly placing the burden on the defendant, rather than the plaintiff. The judge repeated this charge even after defense counsel interrupted the Court to point out the error. Finally, the Court noted plaintiff’s counsel was allowed to introduce expert testimony despite late service of a report, while at the same time the defense expert's testimony was limited. Given the cumulative errors that impacted liability and damages issues, the Court remanded the entire case for further proceedings. This decision is a clear message from New Jersey’s highest court that cumulative errors warrant reversal when those rulings affect a jury’s ability to fairly assess liability and damages. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News The Court of Appeals Opines on the NYC Sidewalk Law February 23, 2016 < Back Share to: When a plaintiff sues for a trip and fall over a defective sidewalk in the City of New York, the controlling law is New York City Administrative Code §7-210. This statute states that when personal injury is caused by a defective sidewalk, the abutting property owner will be liable if it failed to maintain the sidewalk in a reasonably safe condition. Sometimes, when a sidewalk defect is on or near the border of two adjacent properties, the plaintiff will sue both property owners in an effort to maximize a potential settlement. In Sangaray v West River Associates LLC, the plaintiff tripped and fell when his toe came into contact with a raised portion of a New York City sidewalk. The sidewalk flag ran from the front of a property owned by defendant ‘West River’ to an adjacent property owned by defendant ‘Mercados.’ West River moved for summary judgment arguing that because the area of the sidewalk upon which plaintiff tripped was located entirely in front of the Mercado property, the defect did not abut the West River property, and consequently, West River could not be held liable. The trial court granted West River’s motion, and the Appellate Division affirmed. Plaintiff appealed to the New York State Court of Appeals which overturned the decisions of the lower courts and denied West River’s motion. The Court of Appeals reasoned that although the location of the actual defect is significant, it does not “foreclose the possibility that a neighboring property owner may also be subject to liability for failing to maintain its own abutting sidewalk in a reasonably safe condition where it appears that such failure constituted a proximate cause of the injury sustained.” In this case, the Court noted that most of the sunken sidewalk flag that the plaintiff traversed abutted West River’s property. Thus, even though the actual defect may have technically abutted the Mercado property, West River failed to meet its burden since there remained factual questions as to whether it breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach constituted a proximate cause of plaintiff’s injuries. When defending a sidewalk defect trip and fall in the City of New York, defense counsel should be mindful of this holding. Although a co-defendant may believe it is entitled to summary judgment based simply on the exact location of the sidewalk defect, the necessary legal analysis is more nuanced. Defendants must consider whether a co-defendant property owner’s failure to maintain its portion of the sidewalk can, in any way, be considered a proximate cause of the accident. In doing so, it may be possible to successfully oppose a co-defendant’s motion for summary judgment Thanks to Jeremy Seeman for his contribution to this post. Previous Next Contact

News New Jersey Appellate Division Holds That Ongoing Storm Rule Applies To Lessees And Snow Removal Contractors October 28, 2021 < Back Share to: Earlier this year, the Supreme Court of New Jersey held in Pareja v. Princeton International Properties that commercial property owners (i.e. landlords) owe no duty to pedestrians to remove snow and ice from their sidewalks during an ongoing winter storm. However, this did not stop some plaintiff attorneys from arguing that this rule does not apply to commercial lessees and their snow removal vendors, as case law was conflicting with respect to duties owed for sidewalks abutting commercial properties. In Youssef v. Shri-Ram Donuts #3 LLC, the plaintiffs argued that a commercial property owner possesses a duty to clear snow even during an ongoing storm. In the instant matter, the commercial landlord delegated snow and ice removal to the commercial tenant. The Appellate Division held that the logic behind Pareja applies equally to commercial tenants. The court also held that the rule applies to relieve vendors retained by the tenant or the landlord to remove snow and ice. Accordingly, it was ordered that plaintiff’s complaint be dismissed in its entirety. This case is important since the Supreme Court in Pareja did not discuss whether the ongoing storm rule applied to tenants and their snow removal vendors. Nonetheless, it appears that New Jersey courts will be applying the defense-friendly rule to not only landlords, but also their tenants and snow removal vendors. Thanks to Mike Noblett for his contribution to this post. If you have any question, please contact Matthew Care. Previous Next Contact

News Trial Court’s Erroneous Instruction on Expert’s Testimony Regarding “Recklessness” Overturns a $2,000,000 Verdict and Orders a New Trial (PA) January 15, 2021 < Back Share to: James Temple, Administrator For The Estate of Elma B. Temple v. Providence Care Center, LLC D/B/A Providence Care Center involved a fall of a resident, Elma Temple at a nursing home, Providence Care Center in 2011. After the trial resulted in a verdict of $2 million in compensatory damages and $250,000 in punitive damages, Providence filed a motion for judgment notwithstanding the verdict. The trial court granted a new trial due to the failure to follow the court’s rules that led to the co-mingling of the arguments for compensatory and punitive damages. Although the Appellant did not request a mistrial immediately after closing arguments, the trial court said that it used it’s sua sponte power to grant a new trial, based on the rule that, “when a trial judge believes that the trial was not fair, that judge is obliged to correct it.” The Superior Court affirmed this decision and the Appellant remanded the case to the Pennsylvania Supreme Court, which held that the trial court did not correctly use its sua sponte power when granting a new trial. On remand, the Superior Court found that the jury should not have been instructed regarding recklessness when the Appellant’s expert nurse testified that Providence acted with “reckless disregard” for plaintiff’s safety. This statement was not supported by facts as required by Rule 705. See Pa.R.E. 705. (“If an expert states an opinion[,] the expert must state the facts or data on which the opinion is based.”).] The Superior Court held that the erroneous instruction on recklessness, “invited the jury to punish Providence instead of compensate Elma for her damages.” Ultimately it was found that Providence suffered prejudice from the mistakes made in the Nurse’s testimony. This case shows the importance of judicial review of the accuracy of an expert’s testimony and the influence of expert testimony on a jury. Thanks to Emily Finnegan for her contribution to this post. Please contact Thomas Bracken with any questions. Previous Next Contact

News Court of Appeals Rejects Unavailability Rule in Long-Tail Coverage Disputes (NY) May 3, 2018 < Back Share to: In Keyspan Gas East Corporation, v. Munich Reinsurance American, Inc., & Century Indemnity Company et al, the New York Court of Appeals recently rejected the “unavailability of insurance” exception in long-tail coverage disputes - i.e., where the injury is gradual and continuous and spans years in which insurance coverage was in place, as well as years in which no coverage was purchased. We addressed the lower court's decision from the Second Department in a prior post, on September 16, 2016. The Court of Appeals hereby affirms that decision. The Court of Appeals explained the courts generally use two methods to allocate liability in long-tail coverage cases – “All Sums” or “Pro Rata.” In all sums allocation, the insured can collect its total liability up to the policy limit of any policy in effect during the periods that the damage occurred. In pro rata allocation, the insurer’s liability is limited to losses during the policy period, “in other words, each insurance policy is allocated a ‘pro rata’ share of the total loss representing the portion of the loss that occurred during the policy period.” Within pro rata jurisdictions, there is a split regarding whether the policyholder should bear the risk for periods when insurance was unavailable. Keyspan marks the first instance of the Court of Appeals addressing this issue in New York. The dispute arose around the turn of the 20th Century, when Keyspan’s predecessor, (LILCO) built and operated several gas plants in Long Island. Long after those plants stopped operating, the New York Department of Environmental Conservation found evidence that those plants caused significant environmental damage in the surrounding areas. Because the damage occurred gradually, it was impossible to point to a specific occurrence during a specific insurance policy period. Keyspan commenced a declaratory judgment action seeking a determination of liability owed under multiple insurance policies, including the policies Century issued. Century had issued a total of eight liability policies covering property damages between 1953 and 1969. The parties did not dispute that the environmental damage that occurred in any specific year was “unidentifiable and indivisible” from the damage as a whole. Keyspan did not dispute that it bore the risk for periods of time when insurance was available to, but not purchased by, LILCO. Because applicable coverage was unavailable for many of the years in which the harm occurred (as such policies did not exist), Keyspan argued that it should not be considered self-insured during those years, and Century should cover a share of those costs. After decades of litigation, Century moved for partial summary judgment in 2014. The Supreme Court granted the motion in part, but held that because the harm could not be attributed to a specific time frame, that Century would have to indemnify Keyspan for the years that it provided coverage and for the years where applicable insurance coverage was unavailable. Century appealed, and the First Department held that Century did “not have to indemnify Keyspan for losses that [were] attributable to time periods when liability insurance was otherwise unavailable in the marketplace.” The First Department, recognizing that this was an issue of first impression in New York, certified the question to the Court of Appeals to decide whether their order was properly made. The Court of Appeals discussed the split in pro rata jurisdictions about whether the policyholder should bear the risk for periods when insurance was unavailable. Some jurisdictions apply an “unavailability rule,” which functions as an exception to the general rule that the policyholder is considered self-insured for periods when they are without insurance coverage. In those jurisdictions, each insurance policy is allocated a ‘pro rata’ share of the total loss representing based upon the portion of the loss that occurred during its policy period and periods when such coverage was unavailable. According to the Court of Appeals, jurisdictions that have adopted the unavailability rule had “done so by relying heavily on public policy concerns and a desire to maximize resources available to claimants against a policyholder.” In New York, there is no set rule to determine when to apply “all sum” or “pro rata” allocation. The Court explained under its prior precedent, the method of allocation was determined “foremost . . . by the relevant insurance policy.” In the Court’s prior cases, it analyzed policy language similar to that in the applicable Century policies, which limited the insurer’s liability to losses and occurrences happening “during the policy period.” There, the Court held that “pro rata allocation – rather than all sums allocation – was more consistent with such policy language because ‘the policies provide indemnification for liability incurred as a result of an accident or occurrence during the policy period, not outside that period.’” (quoting Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 224 (2002)). According to the Court, it followed from the Consolidated Edison holding that the unavailability rule was inconsistent with the “during the policy period” limitation language that formed the foundation for the pro rata approach. To assign risk to an insurer for years outside the policy period would ignore not only the contract language, but also the pro rata approach. In addition, applying the unavailability rule would effectively provide coverage for years in which no premiums were paid. Moreover, while jurisdictions that applied the “unavailability rule” focused on public policy, the Court noted that foreseeability is a critical aspect of the insurance industry’s ability to spread risk. The Court concluded that here, applying the “unavailability rule” would require ignoring Century’s policy language. This would be inconsistent with New York’s emphasis on policy language. Because the rule could not be reconciled with the pro rata approach, the Court refused to apply the unavailability rule. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Pennsylvania Superior Court Holds that Plaintiffs Have Wide Latitude in Choosing Legal Theories July 23, 2020 < Back Share to: On July 20, 2020, the Pennsylvania Superior Court granted a new trial after finding that a plaintiff was improperly precluded from pursuing all possible legal theories available to her. Adrienne Lageman filed a complaint for medical negligence after she suffered a stroke while undergoing a medical procedure at York Hospital. She alleged that the defendant anesthesiologist John Zepp improperly placed a central line into her jugular vein, which caused a stroke. In making out her prima facie case of negligence, Lageman advanced two theories. First, she argued that defendant Zepp was negligent for using a short-axis ultrasound to place the central line. Second, Lageman sought to avail herself of the inference afforded by the evidentiary doctrine of res ipsa loquitor, meaning literally, “the thing speaks for itself.” Prior to submission of the case to the jury, Lageman presented a proposed jury charge based on res ipsa loquitor. However, the trial court refused to give a res ipsa instruction because, it determined, the case was not one where it was “obvious” a res ipsa instruction applied. “Thus, the jury was not instructed that it was permitted to infer the harm suffered by Ms. Lageman was caused by defendant Zepp’s negligence.” The Pennsylvania Superior Court found that the trial court improperly refused to give the jury a res ipsa instruction and granted Lageman a new trial. The court reasoned that Lageman showed the three required elements for res ipsa and, although it may not have been obvious, the trial court should have instructed the jury to consider the theory. Accordingly, the court reversed the trial court’s decision and granted a new trial. The Pennsylvania Superior Court’s decision in Lageman demonstrates the wide latitude that Pennsylvania courts give to plaintiffs in choosing what legal theory to pursue. Although res ipsa was not obvious—or even likely—the court granted plaintiff a new trial because plaintiff should have had the opportunity to pursue the theory. The Lageman decision is a reminder for defendants that just because a plaintiff’s legal theory is not perfect, it does not mean the plaintiff cannot pursue it. Thanks to John Lang for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Holiday Greetings December 22, 2020 < Back Share to: With everyone working from home and in need of a “little Christmas” (whatever your persuasion), in lieu of physical holiday cards you will never see, here at Wade Clark Mulcahy, LLP – https://wcmlaw.com , we decided to try something a little different. In addition to what, on behalf of all of us and all of you, has become our annual donation to https://www.charitywater.org , which funds clean water projects in developing countries around the world, we hope you enjoy our celebration of the spirit of the holidays and the hope of a brighter new year in Twas the Night Before Trial. With continued thanks for your support and loyalty, Bob, Mike, Dennis, Nicole, Brian, Georgia, Tom, Paul, Tony, Tom, Bruce, Heather, Vivian, Debra, Colleen, Matt, Jim and Jen [su_youtube url="https://youtu.be/bFbl65RbdfA" title="Twas the Night Before Trial"] Previous Next Contact

News After a Time-Out, Judge Order Parties to Play Nice (NY) February 10, 2016 < Back Share to: In Pedraza v. NYC Transit Authority, Justice Stallman of Bronx Supreme Court recently admonished attorneys for both parties in a contested deposition. Jose Luis Melendez Pedraza had brought an action for personal injuries, including a lost arm, against NYC and the train operator after he fell onto the tracks in a Manhattan subway station and was struck by a train. The parties went into the Pedraza’s deposition with unsettled discovery disputes, and it shows. The deposition transcript reads like a hypo from a professional responsibility class in law school. Tensions came to a head when defense counsel questioned Pedraza about photographs that had not been exchanged in discovery. Before defense counsel could ask its questions, Pedraza’s attorney asked to pause the deposition so that he could discuss these new photographs to his client. The defense refused, saying that Pedraza’s attorney had no right to coach his client at that time. Instead of waiting for the defense to get a ruling from the judge, Pedraza’s attorney took his client into the hallway to review the pictures, arguing that because no question was pending, he had a right to confer with his client. When he returned, the defense busted the deposition. After this abrupt ending, both parties moved for drastic relief. Pedraza moved for an order striking the defendants’ answer, compelling discovery, and compelling the train operator’s deposition. The defense cross-moved for summary judgment and dismissal of complaint, arguing that conduct of Pedraza’s counsel at the deposition violated the Uniform Rules for the Conduct of Depositions. Secondly, the defense sought to compel Pedraza to appear for further depositions regarding objections raised at his deposition and to provide responses to outstanding discovery demands. The court denied the plaintiff’s motion in its entirety. It granted the Defendants’ cross-motion in part, but it also imposed some very specific caveats and ground rules to ensure that the parties behave when they next met. The court began by addressing the portion of the Defendants’ cross-motion concerning the alleged violations of the Uniform Rules for the Conduct of Depositions by Pedraza’s attorney. Because the motion had been based on the Uniform Rules for the Conduct of Depositions, which were in the nature of discovery sanctions, the court found that the defendant had not set forth any legal or factual arguments in support of summary judgment, as a matter of law. Next, the court discussed the portion of the Defendants’ cross-motion that sought an order from the court directing Pedraza to respond to various questions he had been instructed not to answer during the deposition. The court noted that under the Uniform Rules for the Conduct of Depositions, the scope of a deposition was broader than what is admissible at the trial itself. However, the broad scope of depositions was not an invitation to harass a witness, and attorneys should not knowingly ask irrelevant questions simply because relevance objections are disfavored at depositions. The court seemed to suggest that at least some of the plaintiff’s 59 objections were justified by defense counsel’s irrelevant questions – e.g.: When did Pedraza come the United States? or What was the color of his hair? Even though defense counsel asked many questions that seemed irrelevant, it was also clear that Pedraza’s attorney used these questions as an opportunity to interrupt the deposition. Because the Uniform Rules for the Conduct of Depositions only allow objections which would otherwise be waived, Pedraza’s attorney was wrong to object to so many questions on relevance grounds, especially where the objections served no purpose other than “marking” or “flagging” the deposition transcript. Ultimately, the court ordered the parties to reconvene to finish Pedraza’s deposition. However, because the defense has asked many irrelevant questions, and Pedraza’s attorney used these questions as opportunities to make (improper) objections based upon relevance, the court set very specific ground rules for the completion of Pedraza’s deposition. To ensure their next meeting didn’t turn into another fiasco, Justice Stallman imposed a five hour time limit to focus the parties. He also severely restricted the ability of Pedraza’s attorney to make any relevancy objections by ruling that for every impermissible objection he raised, defendants would be granted an additional fifteen minutes to complete the deposition. Thanks to Evan King for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact