Don’t Testify Drunk

Expert-aganza ’17 ends today with a scary post since it is Halloween.  There are many ways for an expert witness to commit professional harikari, such as testifying during a video deposition while intoxicated.  Last week, a video deposition appeared on YouTube that shows neurologist Enrico Fazzini being deposed on Thursday, October 19, 2017 beginning at approximately 9:38:26 a.m.  Sadly the video is no longer available on YouTube, but I bet someone, somewhere saved a copy. To be clear, I have no involvement in whatever case led to this deposition.  I do not know how it got on YouTube, nor do I know who posted it.  I merely learned of the video and watched it, like many others, including Above The Law.[1]

There are indications that Dr. Fazzini was intoxicated during this deposition.  How do I know since I wasn’t there and have no formal training in drug or alcohol impairment detection such as ARIDE?  Just watch the video.  Among other hints, at the beginning 1) Dr. Fazzini raises his left hand for the oath[2] and 2) identifies himself as Bart Simpson.[3]

The questioning attorney asks whether Dr. Fazzini is taking the deposition seriously and expresses his concern about whether Dr. Fazzini is sober, but Dr. Fazzini states he is fine.[4]  Due to what the questioning attorney describes as a “comedy of errors,” which seem to be scheduling based, he offers to move the deposition to another day or even take a 10-15 minute break so Dr. Fazzini can gather himself.  However, Dr. Fazzini declines, states he is fine, and the deposition continues.  Part of the reason for offering to move the deposition is that it was scheduled for two hours but Dr. Fazzini apparently had patients scheduled for 11:00 a.m. that morning, making the full two hour deposition impossible.[5]

When asked about copies of medical records other than his own chart, Dr. Fazzini states he does have what sounds like 100 pages of records from another physician which is “most of this fucking shit…,” apparently referencing the chart in front of him.[6]  Plaintiff’s counsel requests a break 3 seconds later, which the questioning attorney grants.[7]  The video resumes at 9:56:51.  Dr. Fazzini is gone.  The questioning attorney notes Plaintiff’s counsel had a semi-private conversation with Dr. Fazzini in the hallway.  By semi-private, I mean everyone in the room apparently could hear “loud voices.”[8]  The two defense attorneys make observations about Dr. Fazzini’s condition.  Even Plaintiff’s counsel appears to concede intoxication.

Why is any of this relevant to a discovery blog?

Hopefully few, if any of us, will ever encounter a situation like this video depicted.  Those in the room (other than Dr. Fazzini) deserve a serious complement for how they handled themselves.  It appears all remained professional throughout.  In those difficult deposition moments, remember the #1 goal is to protect and preserve the record.  The questioning attorney did exactly that.  He offered Dr. Fazzini opportunities to escape the deposition that the doctor refused.  He asked standard foundational questions that, in this instance, were necessary to help protect the record.  Plaintiff’s counsel recognized a problem with Dr. Fazzini and apparently dealt with it in some form.  I appreciated watching the professionalism seen on the video.

Why could this video matter beyond the case at issue?

The video and transcript is sworn testimony.  FRE 801(d)(1)(A) expressly states a statement is not hearsay if “[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” I heard at least three questions asked that could be admissible in this proceeding and others that reflect upon Dr. Fazzini’s credibility, like identifying himself as Bart Simpson.  Also, “Q. Have you had any drugs, alcohol, or medication in the last 24 hours? A. No.”[9]  There is also Dr. Fazzini’s testimony that he has not been deposed or testified anywhere other than Nevada in the last five years.[10]  If that statement is inaccurate, then I suspect that too could be admissible against him.

[1] 1,926 views as when I wrote this.  The Above The Law story may be read here.
[2] 9:40:01
[3] 9:40:26
[4] 9:42:08-9:42:21.
[5] 9:44:37-9:45:50.
[6] 9:51:08-9:51:38.
[7] 9:51:41.
[8] Wood sheds are notoriously poor sound deadening devices.
[9] 9:45:51-9:45:55.
[10] 9:49:19-9:50:46.