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- P
- 1269 Appeals Court

PHIL I P HASOURIS , executor, 1 vs . KHALED A. SOROUR.

No. 16

- P
- 1269. Plymouth. September 14, 2017.

- January 8 , 201 8
. 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
.

C ivil action commenced in the Superior Co urt Department on May 13, 2010. The case was tried before Thomas F. McGuire, J r ., 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. W e 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

1 Of the estate of Linda Hasouris.2

against hearsay where the witness is unavailable due to a valid invocation of the privilege against self

- incrimination. We conclude that , as a general propo sition, 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 ). Backgrou nd
. We briefly summarize the facts relevant to th e issues presented in th is appeal
. In May, 2010 , the plaintiff , Phil ip Hasouris, commenced th is medical malpractice and wrongful
death action , claiming that Dr. Khal e d Sorour and several other health care 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, t he p laintiff's counsel took the depositi on of co defendant 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, an d he voluntary resigned his medical licens e in Massachusetts. Shortly thereafter, he was indicted for Federal Medicare fraud in connection with his medical practice. Prior to the trial ,

2 For the sake of clarity, we refer to Philip Hasouris as "the plaintiff," and Linda Hasouris as "Hasouris."3

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 F ederal criminal charges pending against him and stat ing his intent not to testify at the upcoming trial
. Th e motion was denied
. In light of Mashali 's expressed intent to invoke his privilege against self

- incrimination, Sorour filed a notice stating h is intent to use portions of Mashali 's deposition transcript at the upcoming trial because Mashali was unavailable
. Sorour argued that Mashali 's deposition testimony
could be used under the prior recorded testimony exception to the rule against hearsay.
A t a pretrial hearing, Mashali , appearing personally , affirmed his intent to invoke his privilege against self

incrimination if called to testify during the trial, stating:
"I consulted with my criminal defense attorney
. . . and he has advised me, other than my name and my address, not to testify in any civil proceedings anywhere, including this one. So I have notified my attorney .
. . that I will not be testifying in the cas e other than asserting my Fifth Amendment privilege [] under the United States Constitution and under the Commonwealth o f Massachusetts Constitution." Shortly thereafter, the p laintiff settled with Mashali and the other h ealthcare pr oviders , leaving only Sorour in the case
. A jury trial was held in February, 2015. Sorour served Mashali with a trial subpoena , ordering his appearance at trial
. However, Mashali called the c lerk's office and stated "that he4

was ill and the only way he could appear would be by ambulance."
T he trial judge indicated that if Mashali did not appear on the subpoenaed date , he was inclined to allow Mashali 's testimony to proceed through a reading of the deposition transcript
. The
p laintiff objected
. The plaintiff also noted his evidentiary objections to twelve specific portions of the deposition transcript that Sorour proposed be read. The trial judge sustained three of the se evidentiary objections in full, and portions of two of the other objections
. Mashali did not appear as subpoenaed
. Sorour 's counsel reported that Mashali 's criminal defense attorney had told him that Mashali was gravely ill and in any event, would assert his Fifth Amendment privilege
. The trial judge permitted Mashali 's testimony to be admitted through a reading of the allowed portions of the deposition transcript
. In discussion with counsel outside the hearing of the jury , t he trial judge stated:

" I n determining unavailability, I think I have some d iscretion as to how far to go. I have a situation where Mashali did appear some weeks ago indicating that it was [his] intention not to testify. His [criminal defense ] attorney . . . has represented that Dr. Mashali is suffering from an illness. [ The at torney ] is an officer of the court. I expect that the information is reliable. So I'm inclined to allow the use of the deposition over the plaintiff's objection. I note that for the record. " Prior to the reading of the deposition testimony, the judge read to the jury a joint stipulation of the parties in order t o address any concerns that Mashali 's deposition testimony ( taken5

before the suspensions of his medical licenses) might be given
undue weight by the jury
. 3 Thereafter, the allowed portions of Mashali 's deposition transcript were read into evide nce. The jury returned a verdict in favor of Sorour . The plaintiff filed a motion for a new trial , which was denied. This consolidated appeal followed
. Discussion
. The plaintiff contends that the trial judge erred in permitting the reading of Mashali 's deposition transcript into evidence
. An appellate court will not "disturb a judge's decision to admit evidence absent an abuse of discretion or other legal error." Zucco v. Kane , 439 Mass. 503, 507 (2003) . See Burns v. Combined Ins. Co. of America , 6 Mass. App. Ct. 86, 91 (1978) (reviewin g exclusion of deposition testimony under the abuse of discretion standard)
. 4

3 The judge instructed the jury and read aloud the provisions of the stipulation, as follows : "There's no dispute about these three facts, so you are free just to accept them.
. . . First .
. . the Rhode Island Department of Health suspended Fathalla Mashali, M.D.'s license to practice medicine in the State of Rhode Island. Second .
. . Fathalla Mashali, M.D., entered into a voluntary agreement no t to practice medicine with the Commonwealth of Massachusetts Board of Registration in Medicine. Third .
. . the New York State Department of Health suspended Fathalla Mashali, M.D.'s licenses to practice medicine in the [S] tate of New York."

4 In view of the insufficiency of the record appendix filed by the plaintiff, we have occasion to reiterate that "[t]he burden is on the appellant . . . to furnish a record that supports his claims on appeal." Arch Med. Assoc s . v. Bartlett6

1. Prior r ecorded t estimony
. The trial judge allow ed
Sorour to use Mashali 's deposi tion on the ground that Mashali was unavailable. In doing so, the trial judge appeared to rely

on the exception to the evidentiary rule against hearsay that governs the use of prior recorded testimony of an unavailable witness. See M ass. G. Evid. § 804 , at 31 1 (2017 )
. U nder that exception, the trial judge must determine first whether o ne of the bases for finding that a declarant is "unavailable" is applicable. Ibid
. Next, the trial judge must determine whether the unavailable witness's prior recorded testim ony was given "in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross

- examination of the declarant by the party against whom the testimony is now being
offered." Commonwealth v. Meech , 380 Mass. 490, 494 (1980).
See Commonwealth v. Fisher , 433 Mass. 340, 355 (2001). S ee also Commonwealth v. Martinez , 384 Mass. 377, 381 (1981).

Health Enterprises, Inc
. , 32 Mass. App. Ct. 404, 406 (1992)
. Here, t he plaintiff failed to furnish a sufficient record. For example, although he claims that the trial judge erred in permitting the use of Mashali 's deposition testimony, the plaintiff has provided n either the tran script containing the trial judge's decision to allow the use of the deposition testimony n or the transcript from the trial during which Mashali 's deposition testimony was read. Nonetheless, we exercise our discretion to review his arguments on the merits
. See Worcester County Christian Communications, Inc . v. Board of Appeals of Spencer , 22 Mass. App. Ct. 83, 87 n.4 (1986).7

T he applicability of the prior recorded testimony hearsay exception does not differ depending on whether the underlying action is criminal or civil
. 5 See Commonwealth v. Clemente , 452 Mass. 295, 313 (2008) , cert. denied, 555 U.S. 1181 (2009) ( "Our rule in both civil and criminal cases is that prior recorded
test imony of a witness at a former trial may be admitted as an

exc eption to the hearsay rule " [emphasis omitted] ) ; 5 Wigmore, Evidence § 1401 (b), at 202 ( Chadbourn rev. ed. 1974) ("There is . . . no distinction, on principle, as to the conditions of necessity for using depositions and former testimony, between civil and criminal cases " [emphasis omitted] )
. Thus, for example, in both the civil and criminal context, the prior recorded testimony exception applies to witnesses who are physically unavailable. See Costigan v. Lunt , 127 Mass. 354, 356 (1879) (death); Commonwealth v. Mustone , 3 53 Mass. 490, 491

- 494 (1968) (same). See also Commonwealth v. Gallo , 275 Mass. 320, 328

- 334 (1931) (missing witness); Caron v. General Motors Corp . , 37 Mass. App. Ct. 744, 748 (1994) ( under Mass.R.Civ.P. 32[a][3][B], as amended, 392 Mass. 1105 [1984], deposition testimony may be used when witness is outside Commonwealth and

5 In the criminal context, the hearsay statement must (in addition to falling within one of the hearsay exceptions) satisfy the con frontation clause. See Crawford v. Washington , 541 U.S. 36, 42

- 69 (2004); Commonwealth v. Gonsalves , 445 Mass. 1, 3, 5

- 7 (2005) , cert. denied, 548 U.S. 926 (2006) . We are not concerned with that additional requirement in the civil context.8

cannot be secured for trial). Similarly, in both the civil and criminal context s , a witness considered insane is unavailable for purposes of the prior recorded testimony exception. 6 See Ibanez v. Winston , 222 Mass. 129, 130 (1915); Gallo , 275 Mass. at 331. Accordingly, because, in the context of a criminal proceeding, a valid invoca tion of the privilege against self

incrimination renders a witness unavailable, Commonwealth v. Canon , 373 Mass. 494, 499

- 500 (1977), cert. denied, 435 U.S. 933 (1978), 7 the same principle applies in a civil case.
T he only dispute here concerns whether Ma shali was

" unavailable " in the sense required
. 8 We begin our analysis by determining whether the trial judge err ed in finding that Mashali had , in fact, invoked his privilege against self

incrimination. We conclude that the trial judge did not err in thi s regard. Contrary to t he plaintiff 's argument, we are not confronted with a witness who simply refused to testify without

6 Other exceptions to the rule against hearsay apply equally in both criminal and civil cases. See , e.g., Commonwealth v. Barbosa , 477 Mass. 658, 672

- 673 (20 17 ) (witness's statement in criminal matter properly admitted under excited utterance exception to hearsay rule ). See also Rocco v. Boston
- Leader, Inc ., 340 Mass. 195, 196

- 197 (1960) ( applying same principle in civil matter).

7 See Commonwealth v. Koonce , 418 Mass. 367, 378 n.6 (1994).

8 It is undisputed that t he additional requirements of the prior recorded testimony exce ption, see Meech , 380 Mass. at 494 , were satisfied . The plaintiff had, and took, the opportunity to cross - examine Mashali during his deposition in this case
.9

explanation. Cf. Commonwealth v. Cook , 12 Mass. App. Ct. 920, 920

- 921 (1981) (witness, who was in co urt house restroom, was

n ot unavailable absent explanation of why witness refused to testify). In pretrial motions and hearings, Mashali unequivocally indicated his intent to assert his privilege agai nst self

- incrimination if he were called to testify. Then, in response to the tria l subpoena, his criminal defense attorney stated that Mashali continue d to invoke the privilege
. See Pixley v. Commonwealth , 453 Mass. 827, 832 (2009) (invocation of privilege against self

- incrimination through counsel permissible)
. Accordingly, t he tria l judge did not err in his determination that Mashali had sufficiently expressed his intent to invoke the privilege against self

- incrimination. 9 Cf. Commonwealth v. Charles , 428 Mass. 672, 679 (1999) (" As a general matter, it should not be presumed that a n absent witness

9 Contrary to the plaintiff's argument, Mashali was not required to invoke the privilege in the presence of the jury. See 1 McCormick on Evidence § 130, at 749 (Broun ed., 7th e d. 2013) ("Ordinarily, it is desirable that the jury not know that a witness has invoked the privilege, since neither party to lit igation is entitled to draw any inference from a witness's invocation")
. The plaintiff neither argue s for an adverse inference against Sorour arising from Mashali' s invocation of the privilege n or suggests that this is a case in which the witness was so c losely aligned with Sorour that the invocation of the privilege would warrant such an inference
. Cf. Lentz v. Metropolitan Prop. & Cas. Ins. Co
. , 437 Mass. 23, 31

- 32 (2002) (where evidence of nonparty's invocation of privilege is presented to jury, they should be instructed not to draw adverse inference against party "if they find that the witness invoked the privilege for reasons unrelated to the case on trial")
.10

may invoke his or her privi lege against self

- incrimination");
Commonwealth v. Lopera , 42 Mass. App. Ct. 133, 137 n.3 (1997).
We turn next to the question whether the trial judge could have found that the privilege was validly invoked. 10 " When a witness, directly or through counsel, declares his intent to invoke the privilege against self

- incrimination and the party who had intended to call the witness challenges whether the privilege has been properly invoked, the trial judge must make

an informed determination whether the witness has established a real risk that his testimony could possibly tend to incriminate him. " Pixley , 453 Mass. at 832. In making that determination, the trial judge must be mindful that " [b] ecause an individual's r ight to be free from self

- incrimination is a fundamental principle secured by the Fifth Amendment and by art. 12 of the Massachusetts Declaration of Rights, the privilege is to be liberally construed in favor of the person claiming it." Commonwealth v. Ko once , 418 Mass. 367, 378 (1994)
. Thus, a witness who asserts a privilege against self

- incrimination generally cannot be compelled to testify unless it is " perfectly clear from a careful consideration of all the circumstances in the case that the

10 On appeal, the plaintiff does not argue that Mashali waived his privilege against self

- in crimination by providing his deposition testimony.11

witness i s mistaken, and that the answer[s] cannot possibly have such tendency to incriminate." Matter of Proceedings Before a Special Grand Jury , 27 Mass. App. Ct. 693, 697 (1989) (quotation omitted). Moreover, t he anticipated testimony need not be a direct admission of criminal activity; instead, the privilege
extends to any testimony that "would furnish a link in the chain of evidence needed to prosecute the [witness] for a [F]ederal [or S tate] crime. " Hoffman v. United States , 341 U.S. 479, 486 (1951)
.

" Nonetheless, a witness may not rely on a bald assertion of his privilege if the circumstances do not clearly indicate a possibility of self

- incrimination
. . . . A witness must show a real risk that his answers t o questions will tend to indicate his involvement in illegal activity, and not a mere imaginary, remote or speculative possibility of prosecution.
. . . A witness also is not entitled to make a blanket assertion of the privilege. The privilege must be as serted with respect to particular questions, and the possible incriminatory potential of each proposed question, or area which the prosecution might wish to explore, must be considered. " Commonwealth v. Martin , 423 Mass. 496, 502 (1996) (quotations omitte d). See Commonwealth v. Sueiras , 72 Mass. App. Ct. 439, 445 (2008) (blanket assertion of privilege impermissible) ; United States v. Goodwin , 625 F.2d 693, 701 (5th Cir. 1980 ) ("A blanket assertion12

of the privilege without inquir y by the court, is unacceptable " )
. T he record does not show that the requisite particularized inquiry was made in this case; the trial judge d oes not appear to have consider ed whether any particular questions or areas of examination or cross - examination would have tende d to incriminate Mashali. Contrast Commonwealth v. Pixley , 77 Mass. App. Ct. 624, 628

- 629 (2010)
. Nonetheles s, w e need not determine whether Mashali's invocation of the privilege was valid . A s set forth in part 2 of our discussion, infra , his deposition testimony was independently admissible pursuant to Mass.R.Civ.P. 32(a)(3)(D)
. See Gabbidon v. King , 414 Mass. 685, 686 (1993) (" It is well established that, on appeal, we may consider any ground apparent on the record that supports the

re sult reached in the lower court"). 2
. Application of Mass.R.Civ.P. 32(a)(3)(D)
. Rule 32 of
the Massachusetts Rule s of Civil Procedure governs the use of deposition testimony in a civil trial. See Mass. G. Evid. § 804(b)(1) & note, at 323 (2017); Brodin and Avery,
Massach usetts Evidence § 8.18 (2017 ed. ). The rule provides, in relevant part:

" (a) . . . At the trial , . . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or13

who had due notice thereof, in accordance with any one of the following provisions:
. . . (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (D) that the party offering the deposition has been unable to procure the attendance o f the witne ss by subpoena
. " Mass.R.Civ.P. 32 , 365 Mass. 787 (1974 ). To begin, it is beyond dispute that the rule's requirement that the plaintiff " was present or represented at the taking of the deposition or
. . . had due notice thereof " was met here
. In part icular, the plaintiff's counsel took the deposition of Mashali
. See Frizzell v. Wes Pine Millwork, Inc
. , 4 M ass. App. Ct. 710, 712 (1976) ("[T he use of deposition testimony ] at trial is premised on a prior right to cross

- examine the deponent "). Compare K irby v. Morales , 50 Mass. App. Ct. 786, 790

- 791 (2001) (affirming exclusion of unavailable witness's deposition testimony because party opposing its use was not party at time of deposition and had no opportunity to cross

- examine deponent). Next, the record is clear that Sorour was unable to procure Mashali 's attendance at trial despite serving him with a subpoena. See Mass.R.Civ.P. 3 2(a)(3)(D) . In this case, there is no suggestion that Sorour was less than diligent, or in any way complicit in Mashali 's failure to attend or testify at trial. See Thomas v. Cook County Sheriff's Dep t . , 604 F.3d 293, 308 (7th Cir. 2009) , cert. denied, 562 U.S. 1061 (2010) ("Implicit in this rule [permitting use of deposition testimony]14

is an obligation to use reasonable diligence to secur e the witness's presence ")
. 11 To the contrary, the plaintiff acknowledged Sorour's diligent efforts. 12 Cf
. Hanson v. Parkside Surgery Center , 872 F.2d 745, 750 (6th Cir. ), cert. denied sub

nom. Hanson v. Arrowsmith , 493 U.S. 94 4 (1989) ; Schwartz v. Sys tem Software Assocs
. , 32 F.3d 284, 289 (7th Cir. 1994). Contrary to the plaintiff's suggestion, n othing in r ule 32 or our case law requires a trial judge to issue a bench warrant before concluding that a party has been unable to procure a witness's presence within the me aning of r ule 32. See Thomas , 604 F.3d at 308 ( noting that Federal cognate to rule 32 does not require the trial c ou rt to issue an arrest warrant before permitting the use of deposition testimony). Accordingly , the requirements of rule 32(a)(3)(D) were satisfied, and the trial judge did not err in permitting the use of Mashali 's deposition testimony at the trial. 13

11 In interpreting Mass.R.Civ. P. 32 (a)(3)(D) , we have drawn on the guidance of F ederal cases interpreting the cognate Federal rule, Fed.R.Civ.P. 32 (a)(4) (D)
. Compare Caron v. General Motors Corp
. , 37 Mass . App. Ct. at 749

- 751 (construing Mass.R.Civ.P. 32[a][3][B] )
.

12 See Frederick v. Yellow Cab Co
. of Philadelphia , 200 F.2d 483, 486 ( 3 d Cir. 1952). In contrast, the record is devoid of any affirmative steps taken by the plaintiff to secure Mashali's presence at the trial despite the plaintiff's knowledge that Mashali was unlikely to attend.

13 We need not reach the question whether Mashali 's deposition testimony was al so admissible pursuant to15

3
. Expert testimony
. We turn to the plaintiff's argument that the trial judge abuse d his disc retion in admitting select portions of Mashali 's deposition testimony , which the plaintiff
contends constituted improper expert testimony. 14 The plaintiff asserts that these parts of Mashali's deposition should not have
been a dmitted because the plaintiff was prejudiced by his inability to cross

- examine Mashali on these subjects in order to point out that his medical licenses had been suspended. "The extensive discretion of trial judges with respect to both the process of discovery a nd the admission of evidence

. . . [is] too well established to require citation." Beaupre

v. Cliff Smith & Assoc s . , 50 Mass. App. Ct. 480, 485 (2000). Here, w e discern no abuse of discretion
. Any concern that the jury would give Mashali's deposition un due weight as expert testimony because he was a medical doctor was mitigated b y the parties' joint stipulation regarding the suspension of Mashali's medical licenses, which was presented to the jury precisely to avoid their affording the testimony any undu e weight. Under these circumstances, there was no abuse of discretion.

Mass.R.Civ. P. 32(a)(3 )(C), 365 Mass. 787 (1974), which governs the use of depositions in civil proceedings where the witness is "unable to attend or testify because of age, sickness, infirmity , or imprisonment."

14 The plaintiff's objections to portions of Mashali's deposition testimony concern Mashali's interaction with Hasouris, his general custom and practice, and his interpretation of Hasouris's medical history chart.16
Judgment affirmed
. Order denying motion for new trial affirmed
.