Plante v. Stack
| Decision Date | 06 February 2015 |
| Docket Number | No. 2012–319–M.P.,2012–319–M.P. |
| Citation | 109 A.3d 846 |
| Parties | Kristopher PLANTE et al. v. Daniel STACK et al. v. Bella Restaurant. |
| Court | Rhode Island Supreme Court |
Mark S. Mandell, Esq., Providence, for Plaintiff.
Brian C. Newberry, Esq., for Defendants.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The defendants, Daniel Stack (hereinafter Stack) and the Disabled American Veterans Department of Massachusetts, Inc. (collectively referred to as the defendants), seek review of three Superior Court discovery rulings related to the litigation in this negligence action. The defendants request that this Court reverse the rulings of the Superior Court justice: (1) denying the defendants' motion to compel additional testimony from material fact witnesses; (2) granting the plaintiffs' motion for a protective order limiting the defendants' planned neuropsychological examination of the plaintiff; and (3) revoking the pro hac vice admission of defense counsel. We granted the defendants' petition for the issuance of a writ of certiorari and heard oral arguments on October 2, 2014. For the reasons set forth herein, we deny the petition for certiorari in part and grant it in part.
In March 2008, plaintiff, Kristopher Plante2 (plaintiff or Kristopher) was injured in a head-on collision with Stack on Route 102 in Burrillville, Rhode Island. It is undisputed that Stack operated his vehicle while he was intoxicated, failed to activate his headlights, and crossed the center line in the road, crashing into plaintiff's vehicle. On July 29, 2010, plaintiffs filed a complaint sounding in negligence against Stack and the Disabled American Veterans Department of Massachusetts, Inc., the owner of the vehicle driven by Stack. The defendants do not dispute liability insofar as it relates to the accident, but they do dispute Kristopher's claim for damages.
In the complaint, plaintiffs alleged that Stack's negligence has left Kristopher with “severe and permanent injuries to his mind and body” and that the injuries were of such a significant nature that Kristopher could no longer perform his usual activities. In addition, plaintiffs alleged that Kristopher had suffered a loss of earnings and a permanent loss of earning capacity. Specifically, plaintiffs allege that Kristopher suffered cognitive difficulties as a result of the accident, including concentration issues during his first year as an undergraduate student at the University of Rhode Island. The defendants concede that Kristopher suffered orthopedic and head injuries, but they contend that Kristopher has made a nearly complete physical and cognitive recovery.
The defendants responded with an answer to the complaint and a third-party complaint for contribution and indemnity against Bella Restaurant. The third-party complaint alleged that Bella Restaurant violated the Dram Shop Act, G.L. 1956 chapter 14 of title 3, when it negligently and/or recklessly served Stack while he was in a state of intoxication as defined by § 3–14–3(c). The defendants further alleged that Bella Restaurant knew, or reasonably should have known, that Stack was visibly intoxicated when it served alcohol to him. On October 11, 2011, defendants petitioned for the admission of Attorney Darrell Mook (Attorney Mook) pro hac vice as associate trial counsel on the grounds that Attorney Mook specialized in dram shop cases and had a long-standing relationship with defendants' insurer. This petition was granted by a Superior Court justice on October 21, 2011.
Kristopher Plante's deposition was taken at the offices of plaintiffs' counsel on April 9, 2012, at about 10 a.m., concluding at about 3 p.m. that same day.3 At the deposition, Kristopher revealed that his parents divorced in 2009, one year after the accident. Upon learning of the divorce, Attorney Mook asked a series of follow-up questions about the Plantes' living arrangements, to which plaintiffs' counsel objected. The plaintiffs' counsel indicated that the question dealt with an improper subject matter and was an attempt to embarrass the deponent. Over counsel's objection, Kristopher answered that his parents were living together prior to 2009. At other points in the deposition, Attorney Mook asked questions about various matters pertaining to Kristopher's bicycle use, romantic relationships, sexual activity, and religious beliefs.
The depositions of Kristopher's parents, Teresa (Mrs. Plante) and Timothy (Mr. Plante), took place on May 2, 2012, at the offices of plaintiffs' counsel. Mrs. Plante's deposition lasted about one hour and forty-five minutes, and Mr. Plante's deposition lasted about two hours. Toward the end of Mrs. Plante's deposition, Attorney Mook began to question her about the divorce to ascertain the effect it might have had on Kristopher. The plaintiffs' counsel objected to this line of questioning and expressed concern over its personal nature. Attorney Mook asked if Mrs. Plante could give the reason for the divorce, to which plaintiffs' counsel objected and instructed Mrs. Plante not to answer on the ground that it was not relevant to the case. Asserting that the Plantes' divorce was highly relevant, Attorney Mook asked if she had had a discussion with Kristopher regarding the divorce, to which she gave an affirmative response. When Attorney Mook asked for specifics relating to that conversation, plaintiffs' counsel again objected and instructed Mrs. Plante not to answer. Attorney Mook then reiterated that the divorce was relevant since it could have been a “stressor” in Kristopher's life and could have affected his overall development. Notwithstanding that explanation, plaintiffs' counsel instructed Mrs. Plante not to answer the questions.
Attorney Mook then shifted the questioning toward the potential impact of the divorce on Kristopher, but Mrs. Plante testified that Kristopher was “fine with it.” After Mrs. Plante stated that her son seemed “a little slow,” based on comments made to her by a friend who was a special needs teacher, Farzana Jalalkhan, Attorney Mook suspended the deposition subject to a reservation of rights on the questions that were not answered upon the instruction of plaintiffs' counsel.
At Mr. Plante's deposition, defense counsel announced that he was going to ask divorce-related questions, to which plaintiff's counsel objected and again instructed the deponent not to answer. Once more, defense counsel explained that he was not trying to embarrass plaintiffs, but that he sought to understand the effect the divorce might have had on Kristopher. Later in the deposition, Attorney Mook asked Mr. Plante about Mrs. Plante's current living arrangements, specifically about whether she was living with somebody at that time. The plaintiffs' counsel objected and instructed Mr. Plante not to answer on the ground that it had nothing to do with this case “in any conceivable realm.” Attorney Mook then asked if Mr. Plante knew Mrs. Plante's friend Farzana, to which Mr. Plante replied that he did. Attorney Mook continued, asking what the relationship was between Mrs. Plante and Farzana and, specifically, whether they were involved in a romantic relationship. The plaintiffs' counsel objected to each question and instructed Mr. Plante not to answer. Subsequent questions regarding Kristopher's feelings about Mrs. Plante's relationship with Farzana were objected to in the same fashion. Attorney Mook concluded that line of questioning by reserving the right to ask those questions if a judge should order Mr. Plante to respond.
On August 2, 2012, following a failed attempt at mediation, defense counsel informed plaintiffs' counsel of his intent to reconvene Mr. and Mrs. Plante's depositions on the issues surrounding the divorce. Defense counsel also notified plaintiffs' counsel that he intended to have Kristopher examined by a neuropsychologist and that he intended to depose two or more of Kristopher's treating physicians. In their August 3, 2012 response, plaintiffs' counsel reasserted that any divorce discussion was irrelevant and put defendants on notice that any further depositions would have to be completed by August 30, 2012, the time set for close of discovery. On August 7, 2012, defendants identified their examining neuropsychologist as Nancy Hebben, Ph.D., and asked that Kristopher attend an examination on September 21, 2012. The plaintiffs agreed to the examination request, but required that it be performed before the close of discovery on August 30th.
On August 9, 2012, defendants filed a motion to compel further deposition testimony of Mr. and Mrs. Plante regarding the reasons for the divorce. On August 20, 2012, plaintiffs filed a motion to appoint a single justice to preside over all future discovery and trial on the ground that discovery had not been properly conducted. The Presiding Justice thereinafter assigned the case to a single justice.
Between August 24 and August 29, 2012, defense counsel deposed three of Kristopher's treating physicians. Sherri Provencal, Ph.D., the doctor who had performed neuropsychological examinations on Kristopher shortly after the accident in May 2008, was deposed on August 24, 2012. Over plaintiffs' counsel's objection, Dr. Provencal testified that a divorce or parenting issue could be a “stressor” for a young person entering high school or college. Further questioning was also objected to by plaintiffs' counsel on the ground that Dr. Provencal was not testifying as an expert witness, but as a fact witness. Similar objections were made at the depositions of Richard M. Terek, M.D., Kristopher's original orthopedic surgeon, and Danny E. Humbyrd, M.D., who had been retained by Kristopher's parents to give a second opinion regarding Kristopher's femur fracture.
On September 12, 2012, plaintiffs filed four pleadings with the court: (1) objections to defendants' motion to extend the depositions of Mr. and Mrs. Plante, and to compel Kristopher's...
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