Whether depositions can be done remotely because of the pandemic was at the center of a case involving Wilmington Health before the N.C. Court of Appeals.

No North Carolina court has previously addressed this kind of limitation, a majority of a N.C. Court of Appeals panel observed in its 2-1 ruling issued earlier this month. 

Chief Justice Donna Stroud, supported by Judge John Tyson, sided with Wilmington Health’s position in an interlocutory decision involving pandemic-related procedural matters, reversing and remanding the trial court's decision.

The relevant elements of the case – which has yet to be debated on its actual merits – that reached the appellate court surround the trial court’s decision at the height of the pandemic to prevent attorneys from attending depositions in person during the discovery phase of a medical malpractice suit. 

Counsel attendance during depositions for both sides was restricted to remote-only participation, a violation of Wilmington Health’s Fourteenth Amendment due process rights, the panel's majority ruled.

The plaintiff, Susan Hall, had health concerns and requested telephonic or virtual depositions in June 2020. Hall first sued Wilmington Health in 2019, asserting gross negligence and other claims, arising from the practice’s alleged failure to diagnose her skin cancer in a timely manner, reducing her life expectancy, according to the court documents. 

In an opinion issued April 5, Stroud described the trial court’s decision on the depositions as “unusual.” The chief judge acknowledged she had the benefit of hindsight, given the unprecedented circumstances the trial court was operating within, but ultimately concluded the restriction went too far. 

“An attorney’s physical presence provides greater protection to a client than interacting remotely,” Stroud wrote.

New Hanover County Superior Court Judge Stanley Carmical issued his decision amending a previously determined scheduling order in July 2020, when various court- and government-related gathering and traveling restrictions were still in place. The ruling meant attorneys could not be in the same room with their client to attend a remote proceeding involving the opposing party; each party was to attend depositions remotely individually. 

Carmical's decision imposed a “wholesale ban on personal attendance,” as Stroud described it, introducing a protection measure not explicitly requested by Hall. Wilmington Health appealed the decision on the grounds that it threatened the practice’s ability to counsel its own witnesses and risked the inadvertent disclosure of privileged information. 

Among other cases cited, Stroud pointed to a 1982 federal suit involving Jackie Kennedy Onassis and paparazzi photographer Ron Galella as a rational example of when courts have permitted limitations to access to deponents; in that matter, Galella was barred from attending the former first lady’s deposition because of his long history of harassing her.

N.C. Court of Appeals Judge Chris Dillon dissented from Stroud's decision, citing recent federal case law that have outlined specific parameters to ensure remote participation ensures due process rights are retained. Dillon concluded he didn’t see a justifiable reason for “essentially putting this case on hold for over a year and a half to resolve this discovery issue.”

Representing Hall, Kyle Nutt of Wilmington-based Reiss & Nutt PLLC, said he agrees with Dillon’s dissent. Though they have a right to appeal, “doing so would only cause further unnecessary delay of our case,” Nutt said Wednesday. 

“In our view, this appeal was completely unnecessary,” he said. “From a practical perspective, it's just incredible to me that in the midst of a global pandemic, before vaccines were available, with travel restrictions and quarantines in place in July of 2020, attorneys would insist upon traveling across the country to sit with a witness they didn't represent and several others in a small room for hours of testimony when very reliable technology afforded the rest of the modern world, including numerous other sophisticated law firms we work with, the ability to conduct depositions remotely. 

“The court was even conducting hearings, including live witness testimony, by remote video at that time. This case was the first and only case I was involved in that a party refused to participate in remote video depositions in that timeframe," Nutt said. 

Representatives of Wilmington Health did not respond to requests to comment. Nutt said he hopes to have a trial as soon as possible to present the merits of Hall’s case. ​