July 26, 2007 -- A New Jersey couple that is suing a doctor for medical malpractice has added an unusual defendant: They're now suing the doctor's lawyer for asking what they call "inhumane" questions during a deposition.
Andrew and Phyllis Rabinowitz claim in court papers filed earlier this month that Judith Wahrenberger caused them emotional distress by asking during a deposition if Phyllis could have been involved in the death of their infant daughter.
"This lawyer, out of nothing more than malice and a black-hearted attempt to hurt these people, had the inhumane desire to ask whether they were involved in the death of their child," said Bruce Nagel, the couple's lawyer in both their medical malpractice lawsuit and their suit against Wahrenberger. "There's got to be limits in everything. This was beyond indecent."
Wahenberger's attorney called the suit "frivolous" and said he would move to dismiss it. A leading legal ethics expert also said the case was unlikely to succeed.
The lawsuit, first reported by the New Jersey Law Journal, stems from a separate suit filed in January by the Rabinowitzes against St. Barnabas Medical Center in Livingston, N.J.
According to the complaint in that case, the medical center emergency room doctor discharged the Rabinowitz' 6-day-old daughter, even though her parents insisted that she was extremely ill.
The baby died two days later, the complaint says. A St. Barnabas spokeswoman said the hospital doesn't comment on pending litigation.
During a deposition last month, Wahrenberger, the lawyer for the emergency room doctor, asked Andrew Rabinowitz if he thought his wife could have been involved in their daughter's death, by handling the baby too roughly. Shaking infants can cause brain damage and death, a condition known as shaken baby syndrome.
The Rabinowitz' lawsuit says that Phyllis Rabinowitz attended her husband's deposition and was already crying and upset over the death of her daughter.
The lawsuit, which asks for unspecified damages from Wahrenberger, claims that Wahrenberger had no expert basis to ask the question and that she caused emotional distress by suggesting that the Rabinowitzes caused their child's death.
"If you ask one question that is even suggestive of the garbage that I just heard out of your mouth, this deposition will end," Nagel said, according to a transcript of the deposition.
Wahrenberger called Nagel a "bully," and proceeded to ask other questions.
"Lawyers have to respect the people who are involved in lawsuits," Nagel told ABC News.
Elliott Abrutyn, Wahrenberger's lawyer, declined to comment on the case, other than to call it "frivolous" and say he would move to dismiss it.
Wahrenberger told the New Jersey Law Journal that she was obligated to ask the questions because the baby's autopsy showed brain damage that could indicate shaken baby syndrome. Wahrenberger said she consulted a medical expert for the deposition, who has since said that shaken baby syndrome was not involved in the baby's death. She said she was not aware of that at the time.
"I would not be doing my job if I didn't explore these areas," she told the Journal. "As heartless as he says I was, the last thing I would be is cruel."
"That Comes With The Territory"
Attorneys are rarely sued over how they question witnesses or experts in depositions or in open court.
Stephen Gillers, a New York University law professor and an expert on legal ethics, said normal recourse for inappropriate conduct by a lawyer would be a protective order or judicial sanctions, rather than a lawsuit.
Attorneys are protected from many lawsuits over their behavior because they are expected to advocate for their clients without having to worry about being sued for aggressive behavior, Gillers said. He said he did not expect Nagel's suit to succeed.
"Defense lawyers ask all manner of invasive and personal questions," he said. "That comes with the territory of lawsuits."