Even Though Mistake to Permit Jury to Hear Deposition Testimonies Where Witnesses "Took the Fifth" 400 Times, Trial Verdict Stands

Court: Appellate Term, Second Department, 2nd, 11th and 13th

Case: Andrew Carothers, M.D. v. Progressive Insurance Company

Date: July 5, 2013

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)

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Facts: This commercial case is brought by a radiologist seeking to collect money for MRI tests performed by his facility and billed to the defendant insurance company under No-Fault law. Needles to say, most of the testing was for injured car or auto accident victims. This lawsuit is for THOUSANDS of claims!

Fifty-three (53) cases went to trial together in Brooklyn and Staten Island, involving $18,000,000.

The defendants won all the claims because the plaintiff didn't meet New York State's licensing requirement for No-Fault billing and was not eligible to be paid. That is, Dr. Andrew Carothers didn't really own the MRI company -- it was owned by financial backers with no medical degrees. The supposed actual owners had given sworn deposition testimony where they had refused to answer based on their Constitutional Fifth Amendment right not to incriminate themselves. They did not testify at trial, but their deposition transcripts were read to the jury.

Plaintiff appeals his loss for many reasons, the most interesting of which is that the trial judge shouldn't have allowed the defense to read the deposition transcripts of the supposed actual owners to the jury. Those two people "took the Fifth" over 400 times.

Held: Reading the deposition transcripts to the jury was "harmless error" that didn't really hurt the plaintiff's case and didn't warrant a new trial. The jury's finding that the plaintiff doctor wasn't really running the MRI business was supported by the evidence, so he loses this case.

The dissent argues (very interesting): We can't expect that the jury understood the limited weight to be given by the "taking the Fifth" in the deposition testimonies of two witnesses who were not even parties to this lawsuit. The depositions were not evidence. This was a serious error and the majority here should have ordered a new trial.

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