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Judges dismiss appeal over deposition prep time

April 24, 2015

Because a trial court’s decision to deny ordering the defendants to pay for the time the plaintiffs’ expert witness spends preparing for his defense deposition is not a final judgment, the plaintiffs should have appealed under Ind. Appellate Rule 14(B). Since they did not, the Indiana Court of Appeals dismissed their appeal.

Jeannine Whittington, personally and as representative of Robert Whittington’s estate, sued Dr. David Magnante and Magnante Eye Care for medical malpractice. The defendants wanted to take a deposition of Whittington’s expert, and a dispute discovery arose between the parties as to who should pay for the witness’s deposition preparation time.

The trial court ruled that the defendants do not have to pay for the time the expert witness spends preparing for his deposition, leading to Whittington’s appeal.

“In the present case, … the trial court’s order did not directly order one of the parties to pay a sum to another party or to the court. Instead, the trial court here determined that the Defendants did not have to pay a sum to the Plaintiffs for the deponent’s deposition preparation time. The order does not qualify as an order for the payment of money pursuant to Indiana Appellate Rule 14(A). As a result, the Plaintiffs are not entitled to interlocutory review as a matter of right,” Senior Judge John Sharpnack wrote.

“Because this is not a final judgment or an interlocutory appeal of right, the Plaintiffs were required to pursue a discretionary appeal under Indiana Appellate Rule 14(B). Having failed to do so, we must dismiss this appeal for want of jurisdiction.”

The case is Jeannine Whittington, Personal Representative of the Estate of Robert J. Whittington, Deceased, and Jeannine Whittington, Individually v. David Magnante, M.D., and Magnante Eye Care, 54A05-1411-PL-519.

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