How many times have you asked a question of a doctor at a deposition only to be faced with an objection that the doctor does not have to give an opinion? This seems especially true when the physician is the treating doctor and therefore in the best position to know what the standard of care is. Many lawyers have been shut down in depositions simply trying to ask the treating physician what he sees on an X-ray that he used to treat the patient. A number of Common Pleas Court decisions have faced this problem squarely but none so clearly as the recently issued ruling of Judge Terrance Nealon of the Lackawanna County Court of Common Pleas.

Howarth-Gadomski v. Henzes, No. 18 CV 2585 (C.P. Lackawanna, Nov. 27, 2019), was an opinion in which Nealon faced the issue of an instruction given by an attorney to a deponent not to provide “opinion” testimony. The plaintiffs in that case asserted Pennsylvania Rule of Civil Procedure 4003.1(c) as giving them permission to ask the question.

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