Hasouris v. Sorour (Lawyers Weekly No. 11-003-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1269 Appeals Court PHILIP HASOURIS, executor,[1] vs. KHALED A. SOROUR. No. 16-P-1269. Plymouth. September 14, 2017. – January 8, 2018. Present: Wolohojian, Agnes, & Wendlandt, JJ. Evidence, Previous testimony of unavailable witness, Hearsay, Deposition. Witness, Unavailability, Self-incrimination, Expert. Medical Malpractice, Expert opinion. Practice, Civil, Hearsay, Instructions to jury. Civil action commenced in the Superior Court Department on May 13, 2010. The case was tried before Thomas F. McGuire, Jr., J., and a motion for a new trial was considered by him. Albert E. Grady for the plaintiff. Michael J. Racette for the defendant. WENDLANDT, J. We address, in the context of a civil action, whether a witness’s deposition testimony can be used at trial under the prior recorded testimony exception to the rule against hearsay where the witness is unavailable due to a valid invocation of the privilege against self-incrimination. We conclude that, as a general proposition, it can. In this case, however, we need not determine whether the witness validly invoked the privilege because the use of the witness’s deposition testimony was permissible pursuant to Mass.R.Civ.P. 32(a)(3)(D), 365 Mass. 787 (1974). Background. We briefly summarize the facts relevant to the issues presented in this appeal. In May, 2010, the plaintiff, Philip Hasouris, commenced this medical malpractice and wrongful death action, claiming that Dr. Khaled Sorour and several other healthcare providers negligently provided medical care to the plaintiff’s wife, Linda Hasouris,[2] in connection with her knee replacement surgery, causing pain and suffering and eventually her death. In January, 2013, the plaintiff’s counsel took the deposition of codefendant Dr. Fathalla Mashali. Both Sorour and Mashali were anesthesiologists involved in Hasouris’s care. Subsequent to his deposition, Mashali’s medical licenses were suspended in Rhode Island and New York, and he voluntary resigned his medical license in Massachusetts. Shortly thereafter, he was indicted for Federal Medicare fraud in connection with his medical practice. Prior to the trial, Mashali (who was still a party at the time) filed a motion to bifurcate and stay the trial, invoking his Fifth Amendment privilege against self-incrimination in light of the Federal criminal charges pending against him and stating his intent not to testify at the upcoming trial. The motion was denied. In light of Mashali’s expressed intent to invoke his privilege against self-incrimination, Sorour […]