Defense lawyer asking “inhumane” deposition questions

In many of our depostions, defense counsel asks questions that border on the ridiculous and sometimes cross the line to inappropriate or harassing questions. I ran across this artice that talks about a Plaintiff’s attorney who did something about it.

A plaintiffs attorney sued his adversary for asking “inhumane” questions during a deposition that allegedly inflict “grievous emotional distress.”   Bruce Nagel claims Judith Wahrenberger, his adversary in a medical malpractice case, acted tortiously by asking a husband whether he felt his wife had played a role in the death of their infant daughter by handling the child roughly.

“Wahrenberger’s unsupported and intentional attack upon the parents was beyond any acceptable behavior of a civilized human being,” alleges Nagel, of Nagel Rice in Roseland, N.J.

“I would not be doing my job if I didn’t explore these areas,” says Wahrenberger, of Springfield, N.J.’s Wahrenberger, Pietro & Sherman.


The underlying medical malpractice complaint was filed on Jan. 17, six months after the child died. The parents, Andrew and Phyllis Rabinowitz, alleged they tried to get their 6-day-old daughter admitted to St. Barnabas for breathing problems but were told by emergency room physician Lynn Reyman that the infant had only a common cold. The baby died two days later in her father’s arms, blood running out of her nose, as he tried to administer mouth-to-mouth resuscitation.

No pediatrician was assigned to the emergency room at the time, and the plaintiffs say their daughter’s death could have been avoided if one was. They also charge Reyman refused their request for a chest X-ray and a blood test, which Reyman confirms. The defendants claim the baby presented no treatable symptoms during her emergency room visit.

In the most recent suit, they allege that the deposition incident compounded the emotional distress stemming from the loss of their child. They claim that as a result of Wahrenberger’s questions, Phyllis walked away from the deposition so wracked with guilt and so depressed that she does not want to leave her house, socialize or enjoy family activities; that she spends whole days crying in bed and that she has started seeing a psychiatrist. The plaintiffs say they both feel humiliated, embarrassed and insulted.

The depositions were taken on June 7 at Nagel’s office. Phyllis, who was pregnant at the time, repeatedly wept during her deposition, which came first. She stayed in the room during her husband’s deposition, in which the troublesome exchange occurred.

According to the deposition transcript, Andrew Rabinowitz said he called the chief of police in Millburn as soon as his daughter died because he believed the defendants’ failure to treat her amounted to negligent homicide.

Wahrenberger then asked what he thought might have happened to the baby, whether he felt the couple’s baby nurse or nanny had committed negligent homicide and whether his wife had been involved in the death.

When Nagel asked Wahrenberger to stop her line of questioning, she insisted she was obligated to pursue the issue because it had been raised by Rabinowitz and because of the autopsy results.

The deposition deteriorated to the point where Nagel called Wahrenberger’s words “garbage,” and she responded that he was a “bully.”

Asked why he took the unusual course of suing over the incident, Nagel says, “Defense lawyers have been doing things like this for years. It’s about time someone stands up and says, ‘Stop it.'”

Nagel says he believes Wahrenberger “had no other reason but to embarrass or humiliate” his clients by her questions.

Wahrenberger says she was consulting a pediatric emergency medicine expert at the time of the deposition. The expert dismissed the notion that shaken-baby syndrome played a role.