Deposition Misconduct Draws Rare Sanction
Judge cites med-mal specialist’s history of witness coaching
By THOMAS B. SCHEFFEY
In four medical malpractice cases between 1997 and 2007, Connecticut judges sanctioned top defense lawyer Madonna Sacco for behavior that violated the Practice Book rules for discovery. Now there’s a fifth case, and it’s a doozy.
Hartford Superior Court Judge Robert B. Shapiro has taken the rare step of finding that Sacco violated not just court discovery orders and rules of practice, but also four parts of the Rules of Professional Conduct, the bible of legal ethics.
This summer, he issued an $11,484 sanction against Sacco for misconduct during depositions in a lawsuit involving Bridgeport Hospital. That came one year after Sacco was hit with a $2,368 penalty in the same case for both bluntly and subtly coaching witnesses who were being deposed. In imposing this year’s stiffer sanction, Shapiro wrote that the 2008 penalty had “evidently” lacked enough “deterrent effect.”
The findings upset Sacco. During one hearing earlier this year, she said it “devastates” her to even be accused of ethical misconduct. Characteristically feisty, she went on the offensive and tried to get the sanctions rescinded. She contended that her opponent, New Haven plaintiff’s lawyer Jonathan Katz, should be sanctioned for misusing ethical rules and the threat of a grievance “as a tactical maneuver in a civil piece of litigation.”
She even accused the judge of improperly invoking ethics rules without fair notice, saying the matter should have been handled by the Statewide Grievance Committee.
But Judge Shapiro stuck to his guns, rejecting all of Sacco’s protests. In an August decision, he repeated his assertions that Sacco engaged in obstructionist discovery abuses and made extensive use of “speaking objections” during depositions, repeatedly making comments after the objections for the purposes of coaching her witnesses. She also made a personal verbal attack on her opposing counsel, the judge said.
Sacco’s sanctions total $14,252.31 in plaintiff’s attorney fees and costs. In an interview, Katz, a partner in New Haven’s Jacobs, Grudberg, Belt, Dow & Katz, said Sacco has paid up, and the funds have been donated to “various charities.”
Mark Dubois, the state’s chief disciplinary counsel, is familiar with the case, but said no grievance has been filed against Sacco. “Sometimes judges just like to handle these things themselves,” Dubois said.
Relentless Efforts
Sacco, who wouldn’t comment for this article, has practiced in Connecticut for 24 years, most of them at Bai, Pollock, Blueweiss & Mulcahey in Shelton. In early 2008, she joined the Hartford firm now called Danaher, Lagnese & Sacco. Though the firm’s web site says she handles a variety of civil litigation, she’s best known for her work in the medical malpractice defense arena.
Her relentless efforts are one reason she’s a hero to doctors she defends. Among them is Dr. Ann Bingham, an obstetrician who was involved in litigation that lasted five years. After the case ended in a defense verdict in Middletown last year, Bingham told the Law Tribune that Sacco “was able to inspire confidence and reassurance.” In the emotionally draining process, Bingham said, “I had to trust her completely.”
But Sacco’s tactics have often riled judges. Then-Superior Court Judge Christine S. Vertefeuille wrote in a 1997 opinion that Sacco “objected to the form of the question [during a deposition], which is proper, but then she improperly expounded on the objection, often in a way which may have suggested answers to the deponent.”
In 2000, Superior Court Judge Beverly Hodgson ordered Sacco to cover the cost of new depositions. Hodgson told Sacco not to suggest answers during the depositions, make comments about facts of the case, or make speeches about the propriety of questions.
In 2003, Judge Angela C. Robinson imposed monetary sanctions payable by Sacco’s firm, not Bridgeport Hospital, which was Sacco’s client. In 2007, Waterbury Superior Court Judge Barry Stevens found abuses in the discovery process and ordered Sacco to pay for a new deposition.
In the latest case, plaintiff’s attorney Katz was so unhappy with Sacco’s conduct that he wanted her barred from personally attending depositions. In July 2008, Judge Shapiro turned down that request, calling the remedy too “draconian” because it would deprive clients of the defense lawyer of their choice.
But the judge did issue his first financial penalties against Sacco, noting that she had been sanctioned in four prior instances for, at times, “strikingly similar” behavior. He also offered explicit examples of a lawyer who he said was pushing discovery defense too far.
‘Inappropriate Suggestion’
The underlying case against two doctors and Bridgeport Hospital recently was resolved through an undisclosed settlement. It may well have been embarrassing for the hospital to take to trial, according to the facts alleged in the complaint.
Jonathan Faile came to the emergency room with pain in his right arm, and was prepared for a heart artery catheterization. Dr. Bangalore Deepak tried to insert the catheter in one, then the other, femoral artery, the giant artery in the upper thigh, but had difficulty. According to the lawsuit, he unknowingly sheared off a branch of the artery.
Over the next four hours, Faile was given intravenous saline and four pints of blood. His abdomen filled with fluid, and the intense pressure from the internal bleeding cut off circulation to his intestines. The intestines died and had to be removed. Faile suffered other organ failure during a 65-day slow death.
In citing one of many examples of alleged witness steering, Judge Shapiro quoted from a deposition transcript. When opposing counsel Katz asked a witness about a scan showing a “brisk bleed” internally, Sacco interjected: “Where does it say there’s a ‘brisk bleed?’” Katz read from a medical report about a scan of the patient’s abdomen that revealed multiple images within a giant blood clot, “suggesting brisk, active hemorrhage.” Sacco volunteered: “But that doesn’t say that there’s an active bleed.”
Judge Shapiro called this an “inappropriate suggestion to the witness as to how to testify.”
At another point Sacco accused Katz of engaging in trickery. Sacco said, “It’s the nature of our business. You’re trying to extract money from my client and you can only do so if you get witnesses to self-incriminate, or blame others.”
Katz denied he was engaged in “extracting money.” Sacco shot back, “Are you withdrawing your claim for money damages?” Judge Shapiro found this exchange inappropriate, especially in front of Deepak, a key client in the case.
Broader Punishment
When he issued the initial sanctions in 2008, Judge Shapiro told Sacco that, during depositions, she “shall not suggest answers, make comments about the facts of the case or make speeches about the propriety of questions.”
But this past June, Shapiro found that Sacco had not changed her ways, imposed the additional $11,484 in sanctions, and issued a pointed reprimand. “Incurring sanctions awards,” wrote Shapiro, “should not become a cost of doing business.”
Still, Sacco seemed surprised the judge would cite her for violating Rules of Professional Conduct this year after finding only Practice Book infractions in 2008. She said she couldn’t understand why the punishment had increased to a new level.
“Defense counsel could not know that one decision would have one result while a second would have a far broader scope,” Sacco said at one hearing. She added that if she had realized the stakes were mounting, “I probably would have gotten counsel to represent me at this hearing.”•
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