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Hasouris v. Sorour

Appeals Court of Massachusetts, Plymouth

January 8, 2018

PHILIP HASOURIS, executor, [1]
v.
KHALED A. SOROUR.

          Heard: September 14, 2017.

         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.

          Present: Wolohojian, Agnes, & Wendlandt, JJ.

          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 filed a notice stating his 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.

         At 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 case other than asserting my Fifth Amendment privilege[] under the United States Constitution and under the Commonwealth of Massachusetts Constitution."

         Shortly thereafter, the plaintiff settled with Mashali and the other healthcare providers, 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 clerk's office and stated "that he was ill and the only way he could appear would be by ambulance." The 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 plaintiff 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 these 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, the trial judge stated:

"In determining unavailability, I think I have some discretion 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 attorney] is an officer of the court. I expect that the information is reliable. So I'm inclined to ...

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