Hasouris v. Sorour
91 N.E.3d 688
Mass. App. Ct.2018Background
- Philip Hasouris sued Dr. Khaled Sorour for medical malpractice/wrongful death arising from his wife Linda Hasouris's knee surgery; co-defendant anesthesiologist Dr. Fathalla Mashali had been deposed in 2013.
- After the deposition, Mashali’s medical licenses were suspended in multiple states and he was indicted federally for Medicare fraud; he stated his intent to invoke the Fifth Amendment and not to testify at trial.
- At trial Sorour sought to read portions of Mashali’s prior deposition into evidence; plaintiff objected to multiple portions.
- Mashali did not appear at trial despite a subpoena; the trial judge excluded some portions of the deposition and admitted the remainder after reading a stipulation to the jury about Mashali’s license suspensions.
- The jury returned a verdict for Sorour; plaintiff moved for a new trial and appealed, challenging the admission of Mashali’s deposition testimony and certain expert-type testimony therein.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior recorded testimony (hearsay exception) may be used where the witness invokes the Fifth and is thus unavailable | Mashali’s deposition should not have been read because his invocation was not a valid unavailability showing and admission violated hearsay rules | Prior recorded testimony exception applies where witness is unavailable; Mashali invoked Fifth and was unavailable | Court: Prior recorded testimony exception applies in civil cases when witness is unavailable; here the judge did not err in finding Mashali unavailable for purposes of admissibility (but relied ultimately on Rule 32) |
| Whether Mashali validly invoked the privilege against self-incrimination | Plaintiff: Invocation was a blanket assertion without particularized inquiry and therefore not properly shown | Defendant: Mashali—and his counsel—unequivocally invoked the Fifth; judge reasonably accepted that invocation | Court: Although record lacked a detailed particularized inquiry, judge did not err in finding Mashali had expressed intent to invoke the privilege; court declined to decide validity because Rule 32 independently supported admission |
| Whether Mass.R.Civ.P. 32(a)(3)(D) permitted use of deposition because party was "unable to procure attendance of the witness by subpoena" | Plaintiff: Rule 32 did not authorize use because witness was not properly shown to be unavailable and no bench warrant/arrest efforts made | Defendant: Sorour served subpoena and diligently sought Mashali’s attendance; Rule 32 requires inability to procure attendance, not issuance of bench warrant | Held: Rule 32(a)(3)(D) satisfied — plaintiff had been present at deposition, Sorour was diligent, and inability to procure attendance justified admission of deposition testimony |
| Whether admitted portions improperly functioned as expert testimony and prejudiced plaintiff | Plaintiff: Portions were expert in nature and plaintiff was prejudiced by inability to cross-examine after license suspensions | Defendant: Trial judge has broad discretion; parties mitigated prejudice via joint stipulation about suspensions | Held: No abuse of discretion — judge mitigated risk of undue weight by reading stipulation and excluding some portions |
Key Cases Cited
- Commonwealth v. Meech, 380 Mass. 490 (prior recorded testimony admissible when issues and opportunity for cross-examination are substantially the same)
- Commonwealth v. Fisher, 433 Mass. 340 (same principle on prior recorded testimony)
- Commonwealth v. Canon, 373 Mass. 494 (invocation of Fifth renders witness unavailable in criminal context)
- Pixley v. Commonwealth, 453 Mass. 827 (court must determine real risk of incrimination when privilege asserted)
- Commonwealth v. Koonce, 418 Mass. 367 (privilege liberally construed in favor of claimant)
- Gabbidon v. King, 414 Mass. 685 (appellate court may affirm on any ground supported by record)
- Costigan v. Lunt, 127 Mass. 354 (prior testimony of deceased/unavailable witness admissible)
- Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293 (Fed. Rule cognate: court need not issue arrest warrant before admitting deposition when witness cannot be procured)