Euceda v. Green

40 Pa. D. & C.5th 317
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedAugust 20, 2014
DocketNo. 13 CV 3373
StatusPublished

This text of 40 Pa. D. & C.5th 317 (Euceda v. Green) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Euceda v. Green, 40 Pa. D. & C.5th 317 (Pa. Super. Ct. 2014).

Opinion

NEALON, J.,

— The defendant obstetrician and his counsel in this malpractice action have appealed the special trial master’s imposition of monetary sanctions of $1,000.00 as a result of defense counsel’s eleventh-hour cancellation of plaintiffs’ depositions that were scheduled by defense counsel. Plaintiffs have filed a cross-motion for additional sanctions under Pa.R.C.P. 1023.1 — 1023.4 on the ground that the obstetrician’s discovery appeal is frivolous.

Once a party or lawyer notices a deposition pursuant to Pa.R.C.P. 4007.1, [s]he assumes the concomitant duty under Pa.R.C.P. 4019(e) to promptly notify all other counsel and parties of the cancellation of that deposition before those individuals have incurred travel and predeposition preparation expenses. The discoveiy record reflects that, notwithstanding the fact that (1) plaintiffs’ counsel confirmed by email in the late morning of April 29, 2014, that plaintiffs’ noticed depositions in Scranton would proceed forward as scheduled by defense counsel for the early morning of April 30, 2014, and (2) defense counsel knew that the law office of plaintiffs’ counsel is in Philadelphia, defense counsel unilaterally cancelled those depositions on the afternoon of April 29,2014, almost three hours after receiving the email confirmation from plaintiffs’ counsel that the depositions would “go on as planned tomorrow.” Upon being notified of defense counsel’s last-minute cancellation of the depositions, plaintiffs’ counsel immediately contacted defense counsel’s office and requested that the depositions proceed as scheduled in light of the presence of plaintiffs and their counsel in Scranton, [320]*320but defense counsel declined to do so.

Since it was reasonably foreseeable to defense counsel that plaintiffs’ counsel would travel to Scranton to prepare plaintiffs for their depositions prior to the time that defense counsel belatedly notified them of the cancellation of those depositions, an award of counsel fees and travel expenses to plaintiffs is warranted under Rule 4019(e). Consequently, the special trial master’s sanctions order will be affirmed, but the remedial award will be increased to $1,347.30 to reflect the full amount of reasonable counsel fees and travel expenses related to the aborted depositions. However, since (a) plaintiffs never served the defense with a written demand for the withdrawal of this discovery appeal, (b) Rules 1023.1 — 1023.4 do not apply to discovery motions, and (c) no reported decision previously applied Rule 4019(e) to a request for monetary sanctions following an untimely cancellation of a noticed deposition, plaintiffs’ cross motion for additional sanctions under Rule 1023.1 will be denied.

I. FACTUAL BACKGROUND

On June 24, 2013, plaintiffs, Alex Geovany Euceda (“Euceda”) and Maria Castillo (“Castillo”), filed this medical malpractice action against Castillo’s obstetrician, Barry Green, D.O. (“Dr. Green”), his practice group, Women’s Care Consultants, P.C., and Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital (“Moses Taylor”), alleging the negligent management of Castillo’s labor and delivery at Moses Taylor, which resulted in the death of plaintiffs’ eight day old son due to severe hypoxic-ischemic encephalopathy. (Docket entry no. 1). Nine days later, Euceda and Castillo filed certificates of merit as to each named defendant pursuant to Pa.R.C.P. 1042.3, (docket entry nos. 2-5), thereby triggering their [321]*321right to conduct discovery depositions. See Pa.R.C.P. 1042.5 (stating that with the exception of document requests or entry upon property for inspection purposes, a malpractice plaintiff “may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit.”). By letter dated August 19, 2013, plaintiffs’ counsel served written discovery requests upon Dr. Green’s counsel, Weber Gallagher Simpson Stapelton Fires & Newby, LLP (“Weber Gallagher”), and requested dates for the deposition of Dr. Green.1 (Docket entry no. 65, exhibit A). In the absence of a response, plaintiffs’ counsel forwarded email communications to Weber Gallagher on November 22,2013, and December 3, 2013, soliciting potential dates for Dr. Green’s deposition. (Id., exhibits B-C).

Following a series of email exchanges among counsel on December 4, 2013, the deposition of Dr. Green was [322]*322scheduled for January 31, 2014. (Id, exhibits D-E). However, on December 10, 2013, Weber Gallagher cancelled that scheduled deposition upon being advised by Dr. Green “that he is now on call” on that date. (Id, exhibit E). From December 11, 2013, to January 6, 2014, counsel for the parties exchanged eleven email communications in an effort to reschedule Dr. Green’s deposition. (Id, exhibit F at pp. 1 -3). On January 7,2014, Weber Gallagher confirmed that Dr. Green’s rescheduled deposition would be conducted in Weber Gallagher’s offices on March 6, 2014, at 1:00 PM. (Id at p. 1).

Based upon email communications dated January 23, 2014, confirming the availability of Euceda, Castillo and all counsel for depositions on April 30, 2014, (Id., exhibit G), Weber Gallagher noticed the depositions of Euceda and Castillo for April 30, 2014, at 10:00 AM in the Scranton office of Weber Gallagher. (Id., exhibit H). Three days prior to the scheduled deposition of Dr. Green on March 6, 2014, Weber Gallagher forwarded a letter to plaintiffs’ counsel via facsimile transmission stating that “[a] conflict has arisen which will necessitate us cancelling the deposition of Dr. Green scheduled for Thursday, March 6th.” (Id., exhibit I at p. 2). Since the cancellation letter was transmitted by Weber Gallagher to an outdated facsimile number, plaintiffs’ counsel did not receive notice of the cancellation on that date. (Id. at ¶ 12). After plaintiffs’ counsel was notified of the cancellation on March 5, 2014, his paralegal contacted Weber Gallagher, informed them of the correct facsimile number “as identified on all [plaintiffs’ counsel’s] letterhead and correspondence in this matter,” and advised Weber Gallagher “that plaintiffs’ counsel prefers to communicate by email or U.S. Mail, not via facsimile.” (Id. at ¶ 13).

[323]*323Between March 5, 2014, and April 10, 2014, counsel for the parties exchanged twenty-four emails in an attempt to reschedule Dr. Green’s deposition, and ultimately confirmed that Dr. Green and all counsel were available to conduct Dr. Green’s deposition on May 13, 2014. (Id, exhibit J at pp. 1-8). On April 10,2104, plaintiffs’ counsel forwarded an email to all counsel stating that he had sent a notice of deposition scheduling Dr. Green’s discovery deposition for May 13, 2014, at 11:00 AM, two weeks after the scheduled depositions of Euceda and Castillo. (Id., exhibit K). However, on April 11, 2014, Weber Gallagher cancelled Dr. Green’s rescheduled deposition due to a scheduling conflict. (Id.)

On April 15, 2014, plaintiffs’ counsel emailed a letter to Weber Gallagher, stating:

Despite multiple attempts spanning more than six months, you have failed to produce Barry Green, D.O., for his deposition relative to the above matter. Please be advised that unless we have a firm date within ten (10) days for Dr. Green’s deposition to be taken by the end of June, we will file a motion to compel his deposition for a date at our convenience.

(Id., exhibit L).

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Bluebook (online)
40 Pa. D. & C.5th 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/euceda-v-green-pactcompllackaw-2014.