Perry-Makowski v. Hospital of the University of Pennsylvania

63 Pa. D. & C.4th 11, 2003 Pa. Dist. & Cnty. Dec. LEXIS 107
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMay 22, 2003
Docketno. 0866
StatusPublished

This text of 63 Pa. D. & C.4th 11 (Perry-Makowski v. Hospital of the University of Pennsylvania) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry-Makowski v. Hospital of the University of Pennsylvania, 63 Pa. D. & C.4th 11, 2003 Pa. Dist. & Cnty. Dec. LEXIS 107 (Pa. Super. Ct. 2003).

Opinion

BERNSTEIN, J.,

This is an appeal from the discovery order entered May 31,2002. The procedural setting is straightforward. Dr. Curtis Slipman, a physician at the Hospital of the University of Pennsyl[13]*13vania, treated plaintiff, Melanie Perry-Makowski, for back pain over a two-year period and referred plaintiff to the defendant doctor, Edward Vresilovic, for orthopedic surgery. Plaintiff sued Dr. Vresilovic and the Hospital of the University of Pennsylvania for malpractice. On May 13, 2002, a discovery deposition was noticed by plaintiff for Dr. Slipman. At this deposition, Dr. Slipman testified that he had spoken with defense counsel for defendants Dr. Vresilovic and the hospital, had received medical materials for review, and had discussed the case in detail with counsel prior to the deposition.

When plaintiff’s counsel questioned Dr. Slipman about the conversations he had with defense counsel before the deposition, Dr. Slipman was instructed not to respond. Defense counsel so instructed the deponent claiming “attorney-client privilege.” Defense counsel contends that because Dr. Slipman is an employee of the hospital, communications with him should be treated the same as communications with the individual defendant, Dr. Vresilovic. Defense counsel further claims that he had a right to discuss the case with Dr. Slipman, that defense counsel’s ex parte communication with Dr. Slipman was not a violation of Pennsylvania Rule of Civil Procedure 4003.6, and indeed, that his conversations and everything surrounding his relationship with Dr. Slipman are protected by the attorney-client privilege.1 During argument on this [14]*14motion, defense counsel advised the court that he represented the defendants, Dr. Vresilovic and the hospital, as well as the deponent, Dr. Slipman. Over the course of the deposition, Dr. Slipman was directed not to answer 45 questions.

Plaintiff sought an order requiring answers, contending that these questions were intended to ascertain discoverable admissions as well as bias or interest which could affect the doctor’s testimony concerning his patient, the plaintiff herein. Plaintiff further contends that Dr. Slipman’s relationships with the hospital, Dr. Vresilovic, and with defense counsel in this case, were appropriate areas for inquiry at a discovery disposition.

Plaintiff moved to require answers to these questions at deposition and subsequently moved to disqualify defense counsel as the appropriate sanction for a violation of Rule 4003.6. The court directed that a more formal motion and briefs be filed.2

Because Dr. Slipman was an employee of the hospital, the court ruled that there had been no violation of Rule 4003.6. However, the relationship between a deponent, who may appear as a witness before a jury which must evaluate his credibility, and counsel for the defendants in that case, is a relevant and proper area for inquiry at a deposition. Accordingly, on May 31,2002, the court entered an order requiring Dr. Slipman to answer questions regarding his communication with defense counsel in this case and his personal and professional [15]*15relationships with defendants. Defense counsel appeals the entry of this order.

Dr. Slipman had been directed not to answer questions which inquired into his relationship with defense counsel, the information he received concerning the lawsuit, his conversations with Dr. Vresilovic about the deposition and the incident, whether he had reviewed any expert reports or had been told what the experts had opined, and whether he had discussed the medical treatment with other physicians or Dr. Vresilovic himself.

Dr. Slipman was further instructed not to answer specific questions which were designed to evaluate any interest in the outcome of the lawsuit, including:

(1) Was he being paid a fee by defense counsel?

(2) Was he asked by the defendants or counsel to serve as an expert witness?

(3) Had he served as an expert witness for defense counsel in the past?

(4) Had he ever spoken to experts retained for the defendants in this case?

(5) How often did he socialize with Dr. Vresilovic?

The trial court has broad discretion to take any measures it deems appropriate to insure “prompt and adequate discovery.”3 In Stenger v. Lehigh Valley Hospital Center, 382 Pa. Super. 75, 554 A.2d 954 (1989), the Superior Court noted: “we wholly embrace the conclusion of the Supreme Court of the United States that ‘the trial court [16]*16is in the best position to weigh fairly the competing needs and interests of the parties affected by discovery... ,’”4

As a general policy, Pennsylvania favors a liberal construction of its civil procedure rules.5 Discovery is governed by Pa.R.C.P. 4003.1, which permits the discovery of any information that is reasonably calculated to lead to the discovery of admissible evidence. It is not necessary that information sought at discovery be admissible at trial.6 Likewise, it is proper to inquire about materials which were reviewed or available for review prior to trial or deposition testimony.

In Goodis v. Gimbel Brothers, 420 Pa. 439, 218 A.2d 574 (1966), the Supreme Court expressed the policy that a witness should be required to “lift his visor so that the jury could see who he was, what he represented, and what interest, if any, he had in the results of the trial, so that the jury could appraise his credibility.”7 It is permissible to impeach a witness by showing any partiality that witness has to a party for whom he or she is testifying.8 In Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973), the Superior Court held that “[i]t is beyond question that [17]*17the interest in or bias of a witness towards either side of a lawsuit may be exposed upon cross-examination.”9 Pursuant to Downey, a personal friendship between a testifying physician and a party or that party’s attorney can, of course, be presented in evidence at trial.10 It is entirely proper to question an expert witness as to whether he or she will receive a fee for testifying, or whether he or she has a personal friendship with the party calling him or that party’s counsel.11

The scope of discovery is limited by privileged matter. The trial judge has broad discretion to evaluate privileged matter sought in discovery.12 The attorney-client privilege may be asserted during discovery if it relates to confidential communications, made by the client to the attorney, in connection with the attorney’s legal services.13 As codified in 42 Pa.C.S. §5928, this privilege protects the client from being compelled to disclose communications made between him and his attorney. Once the privilege is properly invoked, the burden shifts to the party seeking disclosure to show that the disclosure of such information will not violate the privilege.14

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Bluebook (online)
63 Pa. D. & C.4th 11, 2003 Pa. Dist. & Cnty. Dec. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-makowski-v-hospital-of-the-university-of-pennsylvania-pactcomplphilad-2003.