Chief Administrative Judge Lawrence K. Mark’s December 29, 2020 Administrative Order includes several new rules that will be extended from the Commercial Division to other civil courts, including Supreme Court, the jurisdiction of medical malpractice cases in New York State.  The rules will become effective Monday, February 1, 2021.

Rule 202.20-b, Limitations on Depositions, will have a significant impact on medical malpractice cases.

Subsection (a) of the rule limits depositions to seven (7) hours per witness.  However, it is anticipated this new rule may limit defendants in obtaining necessary testimony of plaintiffs and essential nonparty witnesses and adversely impact the defense.  Medical malpractice actions frequently entail multiple deposition sessions of a plaintiff and other plaintiff witnesses due to the complex nature of the litigation, which often involves years of medical care and treatment by numerous institutional and individual healthcare providers, chronic and preexisting medical conditions and comorbidities, severe injuries and extensive care with the named defendants.  Moreover, there are often multiple defendants and defense counsel in a single case and this new rule does not address the need for multiple defense counsel to question a witness or how the seven hour limit is divided amongst counsel.

The rules also provide time limitations specific to an entity’s witnesses, which apply to hospitals, nursing homes and other institutional facilities.  Pursuant to subsection (c) of the rule, an entity’s deposition though its representative(s) (even though multiple witnesses may be designated for an entity) shall be considered a single deposition.  For example, if a plaintiff’s counsel designates several witnesses for a defendant hospital, plaintiff’s counsel will have a combined seven hours to depose all such witnesses.  This will almost certainly raise issues for the plaintiffs, who often designate and depose multiple witnesses from a defendant entity, including both treating providers (e.g. physicians, nurses, therapists) and administrative personnel.

It will be vital to take all necessary steps to secure the necessary time to conduct a full and thorough deposition of plaintiff and plaintiff’s witnesses. Subsection (f) provides some options, stating that for good cause shown, the court may alter the limits on the number or duration of depositions.  We can expect several applications on the basis of such good cause.  The Federal Rules of Civil Procedure may provide some guidance, as Rule 30(d) provides that the court must allow additional time, if needed to fairly examine the deponent, or if a person or circumstance impedes or delays the examination.  It may be beneficial to obtain court rulings in advance of the deposition to exclude application of the rule or at least extend the number of hours.  Moreover, the court reporter should be instructed to scrupulously keep track of the actual testimony time, noting the time of all breaks and substantial discussions regarding objections since the hour limitation only pertains to the actual testimony.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.