Surrogate Edward McCarty III
Objectants moved for an order for a commission to take depositions of an out-of-state non-party. The witness was a pharmacist in Florida who dispensed medications to decedent pursuant to a physician’s prescription, and also decedent’s step-daughter. Objectants alleged they sought to depose the witness to discovery information supporting their allegation of lack of testamentary capacity, claiming the medicines were for dementia treatment, or they created side-effects. Petitioners argued decedent’s medical records were already furnished to objectants, and identification of the medicines could be done through a review of the physician’s records and prescription copies. The court noted objectants must establish the information sought from a non-party was unavailable from other sources. It found the testimony of the pharmacist was unnecessary to identify the medicines prescribed, stating decedent’s physician, not the pharmacist who filled the prescriptions, was the appropriate person to testify regarding the reason for prescribing the medications, and the side-effects for the particular patient. Therefore, the court denied objectants’ motion for an order directing a commission.
