Montfort, Healy, McGuire & Salley LLP



Summer 2017 E-Newsletter

Second Department Denies Facebook Evidence in Medical Malpractice Case

On April 26th, the Second Department decided that evidence from the defendant’s Facebook page was not admissible unless the person who discovered it was available to be deposed. The case involved a medical malpractice action against an orthopedist that was filed in 2004. During the discovery portion of the case, the plaintiff was deposed three times, after which the plaintiff filed a note of issue.

The defendant moved to vacate the note of issue or, in the alternative, for permission to conduct an additional deposition of the plaintiff. The defendant supported the motion with “newly discovered evidence.” The Supreme Court adjourned the motion and required the plaintiff to appear for a further deposition.

When the plaintiff was once again deposed on February 4, 2014, the defendant presented him with the new evidence from what they believed was his Facebook account. The printouts from Facebook included statements that the plaintiff talked about going out to a bar, having a great workout, and crossing the Williamsburg Bridge numerous times. The plaintiff did not deny he had a Facebook account. However, he did deny that he made those statements.

After the deposition, the plaintiff demanded the name of the person who obtained the printouts and sought permission to depose that person. The plaintiff further moved to strike the defendant’s answer for a failure to disclose the printouts and failure to comply with discovery deadlines. Most importantly, the plaintiff moved to preclude the Facebook statements from being offered at trial and to have the transcript of the fourth deposition suppressed.

The Second Department reviewed the case and first held that, since the plaintiff consented to the additional deposition, he could not now complain about the procedural defects in the request for the deposition. Therefore, the suppression of the transcript was denied.

Secondly, the Court upheld the motion court’s decision not to strike the answer. The Court noted that the drastic remedy is appropriate only when there is a clear showing that the defendant’s failure to comply with discovery demands was willful and contumacious. The Court found that, under the circumstances, the plaintiff failed to show that the defendant acted willfully in failing to timely comply with certain discovery demands.

Lastly, the Second Department overturned the Supreme Court’s ruling that allowed the defendant to offer the printouts as evidence at trial. The Court held that, unless the person who obtained the printouts is first produced for a deposition, the evidence cannot be offered at trial. The Court recognized that, without the opportunity to depose the person who obtained the printouts, there would be no other means to prove or disprove their authenticity.

To read the full court decision, click here.

A serious medical malpractice claim can threaten the continued success of a healthcare professional and medical facility. The experienced attorneys at Montfort, Healy, McGuire & Salley LLP provide thorough and effective medical malpractice defense to medical professionals, hospitals and insurance companies throughout the New York City metropolitan area and across the nation. To discuss options for medical malpractice defense, contact us at (800)-240-4082, or fill out our contact form here.

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