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Brandenberg v. El Al Airlines

United States District Court for the Southern District of New York · Civil Procedure

Civil ProcedureDiscoveryRule 35Rule 37DepositionsRule 35(a)Rule 37(a)deposition questions

Facts

Plaintiff alleged that during airline travel in March 1976 the defendants' negligent, careless, and reckless treatment caused her physical, emotional, mental stress, and mental and psychiatric injuries, for which she sought $900,000 in damages. At her deposition, plaintiff described events involving both airlines, but her specific complaints against British Airways were unclear from the deposition record. British Airways asked plaintiff several questions seeking the factual basis for her claim against it, but plaintiff refused to answer on her attorney's instruction. British Airways also retained a qualified psychiatrist to examine plaintiff, and plaintiff objected only to undergoing the examination without her attorney present.

Issue

May British Airways compel plaintiff to answer deposition questions asking for the factual basis of her negligence claim against it, despite plaintiff's objection that the questions call for legal conclusions? May British Airways also compel a Rule 35 psychiatric examination where plaintiff claims mental and psychiatric injuries, and if so, may plaintiff insist that her attorney attend the examination?

Rule

Discovery may be used to require a party alleging negligence in broad or conclusory terms to specify the facts on which the claim is based, and such inquiries are proper in depositions as well as interrogatories. When a plaintiff places her mental condition in issue by alleging mental and psychiatric injuries, a psychiatric examination under Rule 35(a) is appropriate, and counsel for the examined party is not entitled to be present; in the psychiatric context, even the party's own physician may be excluded because the examination depends on unimpeded one-on-one communication.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Alvarez sued Lakeview Coach Lines and Harbor Gate Transit in federal court in Chicago, alleging in broad terms that each company acted negligently and caused her physical and emotional injuries during a multistage bus trip. At her deposition, Harbor Gate's lawyer asked Nina to identify what Harbor Gate specifically did that she contends was negligent, but Nina refused on her lawyer's instruction that the question called for a legal conclusion.

How should the court most likely rule on Harbor Gate's motion to compel an answer?

Explanation. The majority held that where negligence is alleged in vague or conclusory terms, the opposing party may discover the specific facts on which the claim rests. The court rejected the objection that such questions improperly seek legal conclusions, explaining that opinions and conclusions are inherent in specifying the factual basis of negligence. It also made clear that the same principle applies in depositions, not just interrogatories. (Derived from Brandenberg v. El Al Airlines (n.d.).)