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A Middlesex County, N.J., personal injury suit presents the novel question of whether a deposition witness who appears to be under the influence of drugs can be made to take a spot blood or urine test at the other side’s behest. Disobedience of a judge’s order mandating such a test is the subject of a motion for dismissal of Freeman v. Milric Construction et al., with sanctions to allow defense lawyers to recoup expenses. Both sides agree it is an issue of first impression in New Jersey, the resolution of which will have important implications for civil litigation strategy. The drug tests were sought, and ordered, because they bear on the plaintiff-witness’s credibility, since he had originally denied having taken drugs before or during the deposition, and on whether the deposition had any value at all, since everything he said could be attributable to his drug-induced state. The issue arose at the Dec. 21 deposition of John Freeman, a 36-year-old roofing worker who seeks $3 million for injuries sustained when he fell through the roof of a building under construction in East Hanover, N.J. He shattered his elbow and missed five months of work. When questions arose over Freeman’s past drug conviction and rehabilitation and his lawyer objected, defense lawyers called Superior Court Judge Vincent LeBlon for a ruling. Further, they described odd behavior by Freeman that aroused their suspicions he was under the influence of drugs there and then. Over the plaintiffs lawyer’s protest, LeBlon, by phone, ordered that Freeman be sent to a nearby hospital to undergo blood and urine testing. LeBlon agreed to keep the test results under seal until such time as a motion could be made and decided as to whether or not they should be released. Freeman left the deposition but didn’t go to the hospital for the tests, prompting a defense motion to dismiss his suit with sanctions. It is returnable on Jan. 20. Freeman’s lawyer, David Fried of Blume Goldfaden Donnelly Fried & Forte, wants an adjournment to allow time for research and briefing. In a letter to LeBlon on Dec. 29, he argued that “the issue of whether a party to a lawsuit, upon observations of lawyers in a deposition, can be ordered to undergo blood and/or urine testing is very serious” and that “this motion will have state-wide implication.” The issue of drug use is also relevant because one of the defense lawyers, Jeffrey Pocaro, said he intends to prove Freeman was using drugs on the day of the February 2002 accident, which goes to the issue of his comparative negligence. Freeman, for instance, was not wearing a safety harness when he fell. Pocaro has subpoenaed Raritan Bay Medical Center, where Freeman was treated after the mishap, for results of his blood test taken at that time. PAST HISTORY OF DRUG USE What triggered this line of questioning at the deposition? Pocaro’s client is Freeman’s employer, United Roofing Systems, which, although barred from direct suit, is in the case because of an indemnification agreement it made with general contractor and named defendant Milric Construction. Pocaro said he learned from his client that Freeman had a history of drug use, at times being found asleep at the job, and that he had a drug-conviction record. At the deposition, Freeman admitted that he was convicted of drug possession in 1999 and served a year in jail, and that he underwent inpatient drug rehabilitation in the early 1990s, but he repeatedly denied taking drugs before the deposition. When defense lawyers pressed for details of the 1999 case, Freeman’s lawyer, Blume Goldfaden associate Richard Villanova, objected. Because LeBlon left instructions for lawyers to call him with any problems at the deposition, the defense lawyers took the opportunity. In a telephone conference, LeBlon overruled Villanova’s objections to questions about the drug conviction. Pocaro then asked the judge to order the plaintiff to undergo immediate drug testing. Pocaro later said in an interview that he was convinced Freeman was under the influence of drugs because he repeatedly contradicted himself and slurred his answers and at times only the whites of his eyes were visible, his pupils having rolled up into his head. LeBlon agreed with Pocaro and ordered the test over Villanova’s objections. After LeBlon’s order, Villanova conferred with his client and then called the judge back. Villanova asked if LeBlon would vacate the drug-test order if Freeman admitted he was under the influence of drugs that day. “He will come back at this point and he will place on the record that he is under the influence of narcotics,” Villanova told LeBlon. “He will admit to having ingested narcotics during the course of this deposition during a break.” Elizabeth Brennan of Romando Tucker Zirulnik & Sherlock, the lawyer for defendant subcontractor A&A Ironworks, asked, “What about before?” Villanova replied, “And he will say before and as of last night that he also ingested illicit.” “An illegal substance,” Pocaro interrupted. “Actually last night not an illegal. Well, maybe. He took Xanax last night,” Villanova answered, referring to an anti-anxiety drug. When Brennan still insisted on a drug test, Villanova argued, “He said that he’s impaired. What’s the difference whether it’s heroin, cocaine, whatever else is out there?” Pocaro also dug in. “I’m of the position that the test should still be taken because he lied about being under the influence. He’s still under the influence. We don’t know if he’s telling us the truth about [whether] he’s under the influence. . . . And since this case is all about credibility and whether or not he was under the influence on the day he was injured[,] and it according to the plaintiff’s demand in a statement of damages of $3 million[,] this is a serious case,” he said. “Plus, we’re going to wind up having to do this deposition over again,” Pocaro added. “It’s a do-over because anything he said today[,] because he’s under the influence[,] it doesn’t count.” Over Villanova’s protestations that requiring the test was “overkill” in view of Freeman’s admissions, and that it would damage the plaintiff’s credibility, LeBlon declined to vacate his order. Villanova told the other lawyers he advised Freeman about the potential for sanctions if he did not comply with the order, but Freeman left the deposition for whereabouts unknown. Pocaro said his motion for sanctions, which the other five defense lawyers join, seeks compensation for the four hours they spent at the deposition. CHILLING EFFECT? The one thing on which lawyers on both sides agree is the novelty of LeBlon’s order. Both Fried and Pocaro say they are unaware of any reported cases with a similar fact pattern. Fried, who was not present at the deposition, said the judge’s imposition of a drug test based on defense lawyers’ reports that his client was intoxicated raises a constitutional issue because, unlike police officers, lawyers are not trained to detect a person’s intoxication. “If this decision stands, it will have a chilling effect on civil litigation,” Fried said. “There may have been a justifiable reason for this deposition to be stopped but the question about whether [Freeman] should be required to undergo instantaneous drug and alcohol testing, that’s the issue.” Pocaro said he does not think LeBlon overstepped a judge’s proper role of control of a deposition. “I think he was rational about his decision,” Pocaro said. “While it was a quick decision, he’s shooting from the hip, he’s not looking up any case law, he’s looking at the exigency of the circumstances.” This article originally appeared in the New Jersey Law Journal , a publication of ALM.

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