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Emotional Distress Suit Over 'Inhumane' Deposition Is Axed
New Jersey Law Journal
September 25, 2007
A novel suit charging that 'inhumane' questions at a medical malpractice deposition caused emotional distress has been disqualified at the starting gate.
An Essex County, N.J., judge on Thursday dismissed the suit, which claimed that a defense lawyer acted tortiously by asking the father of a dead infant whether he felt his wife had played a role in the death by handling the child roughly.
"I don't find the questions asked ... to be extreme or outrageous," Superior Court Judge Alfonse Cifelli said in ruling that the plaintiffs failed to state a claim.
The judge further found the questions were protected by the litigation privilege, which allows lawyers to pursue lines of questioning relevant to their cases without fear of suit by the opposing party.
The suit was filed on July 11 on behalf of Andrew and Phyllis Rabinowitz by Bruce Nagel, of Livingston, N.J.'s Nagel Rice, who represents them in their underlying suit against St. Barnabas Medical Center in Livingston and an emergency room physician, Lynn Reyman.
In the malpractice suit, the Rabinowitzes alleged they tried to get their 6-day-old daughter admitted to St. Barnabas for breathing problems but were told by Reyman that the infant had only a common cold. The baby died two days later in her father's arms, blood running out of her nose, as he tried to administer mouth-to-mouth resuscitation.
The suit contends Reyman was not qualified to treat their sick infant because he is not a pediatrician. No pediatrician was assigned to the emergency room at the time and the plaintiffs say their daughter's death could have been avoided if one had been there. They also charge Reyman refused their request for a chest X-ray and a blood test, which Reyman confirms. The defendants claim the baby presented no treatable symptoms during her emergency room visit.
Depositions in the malpractice suit were taken on June 7 at Nagel's office, with Reyman represented by Judith Wahrenberger, of Springfield, N.J.'s Wahrenberger, Pietro & Sherman.
Phyllis Rabinowitz, who was pregnant at the time, repeatedly wept during her deposition, which came first. She stayed in the room during her husband's deposition, in which the troublesome exchange occurred.
According to the deposition transcript, Andrew Rabinowitz said he called the chief of police in Millburn, N.J., as soon as his daughter died because he believed the defendants' failure to treat her amounted to negligent homicide.
Wahrenberger asked Andrew what he thought might have happened to the baby, whether he felt the couple's baby nurse or nanny had committed negligent homicide and whether his wife had been involved in the death.
When Nagel asked Wahrenberger to stop her line of questioning, she insisted she was obligated to pursue the issue because it had been raised by Rabinowitz and because autopsy results showed the baby had a subarachnoid brain hemorrhage, which can be a sign of shaken baby syndrome.
The deposition deteriorated to the point where Nagel called Wahrenberger's words "garbage" and she responded that he was a "bully."
In the emotional distress suit that followed, the Rabinowitzes allege that the deposition incident compounded the emotional distress stemming from the loss of their child. Phyllis Rabinowitz, a former chief marketing executive at Revlon, claims to have been unable to return to her job after her daughter's death.
They claim that as a result of Wahrenberger's questions, Phyllis walked away from the deposition so wracked with guilt and so depressed that she does not want to leave her house, socialize or enjoy family activities; that she spends whole days crying in bed and that she has started seeing a psychiatrist. The plaintiffs say they both feel humiliated, embarrassed and insulted.
"These are very unusual circumstances which go beyond the bounds of decency," said Nagel. "That's why this case was filed; it represents the dark side of the law. Wahrenberger's unsupported and intentional attack upon the parents was beyond any acceptable behavior of a civilized human being."
Nagel says he will likely appeal the dismissal, saying that Cifelli based his ruling on deposition testimony, which Nagel says is impermissible on a failure to state a claim motion under R. 4:6-2(e).
Wahrenberger's attorney, Elliott Abrutyn, was elated by the ruling.
"If this suit were allowed to proceed it would have a chilling effect on all lawyers," said Abrutyn, of Livingston's Morgan Melhuish Abrutyn. "Judy Wahrenberger did nothing improper during the deposition and only pursued a completely reasonable and related line of questioning in light of the facts of the plaintiffs' medical malpractice action."
Since the suit came to public attention, attorneys on both sides of the aisle have condemned it as an uncivil, extreme measure that tarnishes the reputation of the plaintiffs bar and could backfire on Nagel's clients in the underlying case.
"The suit would have created bad policy," says plaintiffs lawyer Abbott Brown of West Orange's Bendit Weinstock, and author of the Medical Malpractice Handbook. "Do we really want to be sued for pursuing discovery? No. If it had been successful, it would be costly. It's the fact of getting sued that affects insurance rates. The bottom line is: isn't the practice hard enough without suing each other?"
While dismissing the suit, Cifelli also dismissed Nagel's motion to disqualify Wahrenberger's attorney, Abrutyn, on the grounds that Abrutyn had represented Nagel and his firm in a malpractice case, Dello Russo v. Nagel, 358 N.J. Super. 254 (App. Div. 2003). That decision, which was in Nagel's favor, ironically reaffirmed the protections of the litigation privilege.
Nagel did make some headway in the underlying malpractice case, as Superior Court Judge Verna Leath issued a broad protective order for a future deposition that requires defense counsel to present all documents to Nagel before presenting them to the deponents.
