Opinion
KNLCV146022485S
01-20-2017
Jean T. Wheelis, Administrator of the Estate of Gary D. Wheelis v. Backus Hospital Corporation dba the William W. Backus Hospital
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER (#)
Hon. John J. Nazzaro, J.
The defendant Backus Hospital Corporation d/b/a the William W. Backus Hospital has objected to the plaintiffs', Jean T. Wheelis and Jean T. Wheelis Administrator of the Estate of Gary D. Wheelis, notice of continued deposition of Kimberly Daniel (Daniel), and has moved for a protective order to prohibit a second deposition of Daniel. The defendant seeks to prohibit a second deposition of Daniel on the ground that Daniel's deposition was conducted and completed in this matter on March 2, 2016, and the plaintiff has not provided any basis upon which to subject Daniel to a second deposition. Specifically, the defendant argues that the plaintiff completed the deposition by stating, " I don't have any other questions for you. I'm all set." The defendant argues further that the plaintiff did not indicate at any point that Daniel's deposition was to be left open. Moreover, the defendant avers that Daniel was never instructed not to answer a question, and the plaintiff did not serve discovery requests related to Daniel's personnel file and training materials until six weeks after the deposition was completed. The plaintiff responds that Daniel " could recall virtually nothing" during the deposition, and her failure to provide her curriculum vitae or remember " anything regarding her work history, training, written materials, procedures, policies, manuals or books that she was ever provided while working for Backus Hospital" prevented the plaintiff from inquiring into those areas. The plaintiff further contends that, upon receipt of Daniel's personnel file, it was apparent that Daniel did not receive any training for employment in the critical care setting. Additionally, the plaintiff contends that Daniel's resignation letter raises questions as to the circumstances surrounding her resignation from Backus Hospital. In its objection to the defendant's motion for a protective order, the plaintiff concedes that the deposition of Daniel was not held open on the record. This matter was argued before the court on January 10, 2017.
On July 15, 2016, Backus Hospital Corporation d/b/a the William W. Backus Hospital and Backus Physician Services, L.L.C. filed an objection to the plaintiff's notice of continued deposition. The plaintiff withdrew its cause of action against Backus Physician Services, L.L.C. on November 1, 2016. Therefore, this memorandum will only address the objection of Backus Hospital Corporation d/b/a the William W. Backus Hospital.
DISCUSSION
Practice Book § 13-5 provides in relevant part that: " Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters . . ." Our Supreme Court has concluded " that the granting or denial of the discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion . . ." Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006).
In the present case, the plaintiff was aware that Daniel was employed by the William W. Backus Hospital and of her involvement in the decedent's treatment on December 13, 2012. Daniel was deposed on March 2, 2016 for approximately two and a half hours concerning her professional background and the circumstances surrounding the decedent's treatment. Furthermore, Daniel was indisputably excused by both parties at the close of the deposition. The plaintiff requested Daniel's resume prior to the deposition. The witness, however, did not provide one to the plaintiff. Although Daniel did not provide a resume and testified that she did not remember the answers to many of the plaintiff's questions regarding the training she received, or the policies and procedures of the hospital, the plaintiff was not prevented from requesting Daniel's employment file prior to the deposition. The court is not persuaded by the plaintiff's assertion that Daniel's resignation letter raises issues that could not be explored or explained in the initial deposition. Rather, the plaintiff had ample opportunity to explore the circumstances surrounding Daniel's resignation during the deposition on March 2, 2016. Similar to the circumstances in Di Palma v. Wiesen, 163 Conn. 293, 299, 303 A.2d 709 (1972), in which counsel was not restricted in questioning the doctor during his deposition, the doctor was " unequivocally excused" at the close of the deposition, and no new subject matter was to be addressed, here Daniel provided answers to the plaintiff's inquiries regarding her resignation. Furthermore, at no time was Daniel directed not to answer any of plaintiff counsel's inquiries. See Di Palma v. Wiesen, supra, 163 Conn. 299. Doubtless there may be further areas to explore vis-a-vis a second deposition session or opportunity to retest a failing memory which may or may not stand to be refreshed. The court tacitly makes no finding with respect to the intent of the plaintiff. One cannot conclude the attempted deposition re-notice is to harass. However, to permit a second opportunity for deposition under these circumstances would set bad precedent for discovery via deposition. Fairness and opportunity to inquire are the touchstones. The ability to actually exhaust a witness's recall for the record is, at least in this instance, unattainable. The court without much imagination can envision a scenario of multiple rounds of deposition of a witness. It can become abusive. There must, therefore, be reasonable limit to this form of discovery. Under these circumstances, the court will not permit further deposition of Kimberly Daniel. The plaintiff was afforded full and fair opportunity to question the witness. There is no injustice in ceasing further deposition inquiry of this witness. Based on the colloquy within Daniel's deposition, the plaintiff was not foreclosed from inquiring further into the circumstances surrounding Daniel's resignation, training, or employment history.
The Di Palma court concluded that the trial court did not abuse its discretion in refusing to issue a capias for the arrest of a doctor who had testified for two days, was subsequently excused by counsel, and was subpoenaed to appear for further deposition during a time in which he was operating on a patient, and, therefore, failed to appear for additional questioning. Di Palma v. Wiesen, supra, 163 Conn. 299.
CONCLUSION
For the foregoing reasons, the defendant's objection to notice of continued deposition is sustained, and the defendant's motion for protective order is granted.
It is so ordered.