SAN DIEGO (Legal Newsline) - A man who claims he needs his wife present at a deposition to help him deal with post-traumatic stress disorder will probably get his wish even though she could be a witness in his lawsuit against the hospital he accuses of causing his PTSD.
A trial judge improperly rejected the plaintiff’s request as untimely without investigating his claim he was entitled to a reasonable accommodation for his disability, California’s Fourth Appellate District Court ruled. Defense lawyers argued the husband and wife could collude on their stories if she was present, but the appeals court said that could be solved by the woman wearing noise-canceling headphones while her husband testified.
Moss Gropen sued Palomar Medical Center and several of its doctors and employees in 2021 after he went to the hospital for a scheduled thoracentesis to obtain fluid from the space around his lungs, but instead was sent to the emergency room where doctors discovered he suffered from plural effusion. He said he was admitted to a windowless room with a chest tube, where he was left alone with “substandard nutrition” and “suffered uncontrollable sobbing and anxiety,” which led to PTSD.
In February 2022, Drs. Fang Wu and Danielle Greer served a deposition notice on Gropen. When Gropen appeared in July, he demanded his wife, Laura, sit with him while he testified for “moral support” and “calming effect.” The doctors’ lawyer objected because Grohen’s wife wasn’t a party in the case but had been identified as a witness. Gropen refused to proceed with the deposition and the doctors filed for a protective order excluding Laura from the deposition and seeking $3,000 in sanctions.
At a hearing over the motion, Gropen submitted a declaration from Dr. Stephen Singer that his PTSD would be triggered by a deposition and Laura should be present. Gropen’s lawyer argued PTSD is a recognized disability under the ADA and under California Rule 1.100 he was entitled to a reasonable accommodation.
The judge said he was familiar with PTSD and did not “need to know the symptoms and all that stuff.” He said the request for accommodation was untimely since Gropen asked for it after refusing to sit for the deposition. “I have seen nothing that would suggest that accommodations are necessary, that he has PTSD, other than what I’ve heard today for the very first time,” the judge said.
Gropen’s lawyer argued he didn’t specifically have to mention the rule providing for a reasonable accommodation at the time, since he believed it was “self-evident” one was justified. But the judge ruled against him and he appealed.
In a March 30 decision, the Court of Appeals sided with Gropen. Rule 1.100 requires parties to submit a request for accommodation, but it can be made in an ex parte communication with the judge, or orally at a hearing, the court ruled. The defendants argued the rule also required Gropen to submit a written request, explaining his disability, to the court’s ADA coordinators.
“We see nothing in the San Diego County Superior Court’s local rules that creates any additional hurdle to requesting an accommodation,” the appeals court said. “Indeed, even if a local rule did so, we would disregard it.”
“In hindsight, it would have been more efficient had Gropen raised the issue of his wife’s presence at his first deposition …but his failure to do so is not fatal to his cause here,” the court concluded.
As for the complaint her presence could lead to “collusive testimony,” the appeals court said “a painless way” to solve the problem would be to have Laura sit for a deposition alone first, and prohibit Gropen from attending.
“Another possible solution would be to have Laura present at Gropen’s deposition but be unable to hear the questions (perhaps she could wear noise cancelling headphones),” the court mused.