Segal McCambridge Attorney Obtains Reversal Of Trial Court Ruling On Appeal Of Right To Complete Deposition In Toxic Exposure Case


March 7, 2008

On March 4, 2008, Segal McCambridge attorney, Dwight A. Kern obtained a reversal of a Kings County, New York trial court ruling, precluding the defendants from completing the oral deposition of the plaintiff on behalf of a carpet contractor.  On appeal, the Appellate Division, Second Department, held the defendants had the right to complete the deposition of the plaintiff via oral examination as opposed to written interrogatories which was mandated by the trial court.  The plaintiff allegedly suffers from many illnesses stemming from chemical exposures, including MCS, Fibromyalgia and brain damage after exposure to carpet adhesive in her place of employment.  The plaintiff claimed that her injuries prevent her from being able to testify at an oral deposition and the trial court agreed.  The Appellate Division reasoned that there was no evidence that oral examination, particularly via live video conferencing, "would be so harmful as to seriously endanger [the plaintiff's] physical condition." This ruling preserves the right of defendants to take depositions of plaintiffs who are more frequently claiming they are incapable of testifying after chemical exposures.