A couple of months ago I tried to do some research on 3117(a)(4). I was more or less trying to understand the impetus behind the provision. As it turns out, I’m terrible at researching this. I had a research librarian trying to help me out and I really couldn’t get anything on it. That said, I’m pretty sure it is a patient treating mechanism, not a money saving mechanism. The only reason to have a rule that allows for doctors’ depositions to be used at trial is to keep them out of court and in their offices, treating patients. Lately, a few insurance companies have been using it as a money saving mechanism. They have one doctor in their (ins co lawyer’s) office all day doing depositions for various cases–the doctors get paid a fixed (lower) rate, and the insurance companies don’t have to pay the doctors to appear at trial. At trial, the insurance company lawyer reads the deposition into the record. There is no doubt that CPLR R. 3117(a)(4) is being used as a money saving mechanism. From experience, I can tell you that the doctors are available to testify. There are days where they are in court to testify on over five cases for various insurers. Do I blame them? No, everyone needs to make a living. The point is, they aren’t treating patients. The depositions aren’t allowing them to treat more patients. They still come to court and testify on cases where depositions weren’t held.
Like I said, and I could be wrong (but I doubt it) CPLR R. 3117(a)(4) was not intended to be a money saving mechanism.
Is this something a party really wants to do? Depositions are a completely different animal than trials. It’s part of discovery. Accordingly, there is a lot of leeway. All those questions that you could never get away with at trial; you can ask them. The questions need only be relevant. If the insurance company refuses to allow their doctor to answer and bust the deposition, well, that will be their problem. There is a lot of interplay between IME doctors, Peer Review doctors, the vendors that work in-between the doctors and the insurance companies. The insurance companies play a role as well. Do you really want these questions asked? Do you want the answers memorialized? I’d guess no. But, I could be wrong. In the end, it could wind up costing far more than it would save.
Using this rule is a ballsy move. One that most parties wouldn’t make but for desperation. We can all agree that a jury wouldn’t like it. Would a Judge? Would anyone feel comfortable telling the trier of fact, especially one that went to law school, and one who is smarter than your average Joe that, “Yes your honor, I didn’t think it important that you see the witness. No, you don’t have to worry about the witness’ demeanor. It’s fine, trust me”.
Feel free to comment. If anyone has some insight into the legistlative history of 3117(a)(4), speak up.
If you wind up at one of these depositions, you’ll want to ask questions. To help you along, here is a list of questions. Some are stupid, others aren’t. Feel free to add more in the comments.
- How many times did you take the boards?
- Med School grades
- Has an insurance company ever asked you to change one of your reports?
- Where did you get the journal cites for your reports?
- Do you subscribe to any journals? Which ones?
- How much do you make from peers/IMEs/testifying
- Tax records
- Bank records
- Has an insurance company or its representative ever withheld records?
- Has Has an insurance company or its representative ever altered records?
- How are the peer reviews/IMEs scheduled?
- Who schedules them? Insurance Company or Vendor?
- Do you receive instructions before the peer/IME? What are they
- Is there a cover letter? If so what does it say?
- Are there any vendors or insurance companies you won’t work for? If so, why?
- Has an insurance company ever instructed you on how to testify?
I’ll add more as I think of them. Add more in the comments if you want.
Rivera v New York City Tr. Auth., 2008 NY Slip Op 06684 (App. Div., 1st)
CPLR 3117(a)(2) provides that “the deposition testimony of a party or of any person who was a party when the testimony was given . . . may be used [at trial] for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence.”
The statute expressly provides, however, that the use of a deposition is authorized only “so far as admissible under the rules of evidence” (CPLR 3117[a] [emphasis added]). Thus, even assuming (without deciding) that CPLR 3117(a)(2), unlike CPLR 3117(a)(3) (setting forth the conditions for the use of “the deposition of any person”), permits the use of the deposition of a party against another party who did not receive notice of the deposition and was not present or represented at its taking (
see Bianchi v Federal Ins. Co., 142 Misc 2d 82 [Sup Ct, NY County 1988];
but see Andrusziewicz v Atlas, 13 AD3d 325 [2004];
Siniscalchi v Central Gen. Hosp., 80 AD2d 849 [1981]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3117.05 [2d ed]),
deposition testimony otherwise satisfying the requirements of CPLR 3117(a)(2) still is not admissible unless it is shown that, as to each party against whom the deposition is to be used, it falls within an exception to the rule against hearsay (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264 [1976]). No such showing was made here.
While the deposition testimony of each plaintiff was admissible against that plaintiff as an admission (see Prince, Richardson on Evidence, §§ 8-201, 8-202 [Farrell 11th ed]), the status of such testimony as an admission of the plaintiff who testified did not render it admissible against the other plaintiffs (id. § 8-203; see also Claypool v City of New York, 267 AD2d 33, 35 [1999] [GML § 50-h testimony was not admissible at trial against parties who "were not notified and were not present at the hearing"])[FN1]. Neither were the depositions admissible under the hearsay exception for declarations against the declarant’s interest, since none of the deponents was shown to have been unavailable to testify at trial (see Prince, Richardson, supra, § 8-404). Further, since none of the deponents testified at trial before his or her deposition was read into evidence, the deposition testimony was not admissible as a trial witness’s prior inconsistent statement (cf. Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518 [1968]; Campbell v City of Elmira, 198 AD2d 736, 738 [1993], affd 84 NY2d 505 [1994]; Prince, Richardson, supra, § 8-104).
Emphasis mine.
