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16-P-1269                                             Appeals Court

        PHILIP HASOURIS, executor,1   vs.    KHALED A. SOROUR.


                            No. 16-P-1269.

        Plymouth.      September 14, 2017. - January 8, 2018.

            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.



     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.


    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


    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 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,

     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 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
                                                                     4


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 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 to

address any concerns that Mashali's deposition testimony (taken
                                                                     5


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 evidence.

     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) (reviewing 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 not 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. Assocs. v. Bartlett
                                                                       6


    1.     Prior recorded testimony.    The trial judge allowed

Sorour to use Mashali's deposition 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 Mass. G. Evid. § 804, at 311 (2017).    Under that

exception, the trial judge must determine first whether one 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 testimony 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).      See also

Commonwealth v. Martinez, 384 Mass. 377, 381 (1981).



Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992).
Here, the 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 neither the transcript containing the
trial judge's decision to allow the use of the deposition
testimony nor 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


     The 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

testimony of a witness at a former trial may be admitted as an

exception 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, 353 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 confrontation 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 contexts, 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 invocation 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.

     The only dispute here concerns whether Mashali was

"unavailable" in the sense required.8    We begin our analysis by

determining whether the trial judge erred in finding that

Mashali had, in fact, invoked his privilege against self-

incrimination.    We conclude that the trial judge did not err in

this regard.    Contrary to the 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 (2017) (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 the additional requirements of the
prior recorded testimony exception, 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 court house restroom, was

not unavailable absent explanation of why witness refused to

testify).   In pretrial motions and hearings, Mashali

unequivocally indicated his intent to assert his privilege

against self-incrimination if he were called to testify.      Then,

in response to the trial subpoena, his criminal defense attorney

stated that Mashali continued to invoke the privilege.     See

Pixley v. Commonwealth, 453 Mass. 827, 832 (2009) (invocation of

privilege against self-incrimination through counsel

permissible).   Accordingly, the trial 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 an 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 ed.
2013) ("Ordinarily, it is desirable that the jury not know that
a witness has invoked the privilege, since neither party to
litigation is entitled to draw any inference from a witness's
invocation"). The plaintiff neither argues for an adverse
inference against Sorour arising from Mashali's invocation of
the privilege nor suggests that this is a case in which the
witness was so closely 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 privilege 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 right 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. Koonce, 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-incrimination by providing his
deposition testimony.
                                                                    11


witness is 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, the 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 State] 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 to 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 asserted 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 omitted).    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 assertion
                                                                    12


of the privilege without inquiry by the court, is

unacceptable").

    The record does not show that the requisite particularized

inquiry was made in this case; the trial judge does not appear

to have considered whether any particular questions or areas of

examination or cross-examination would have tended to

incriminate Mashali.   Contrast Commonwealth v. Pixley, 77 Mass.

App. Ct. 624, 628-629 (2010).   Nonetheless, we need not

determine whether Mashali's invocation of the privilege was

valid.   As 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

result reached in the lower court").

    2.   Application of Mass.R.Civ.P. 32(a)(3)(D).     Rule 32 of

the Massachusetts Rules 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,

Massachusetts 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 or
                                                                    13


    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 of the witness 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 particular, the plaintiff's counsel took the deposition of

Mashali.    See Frizzell v. Wes Pine Millwork, Inc., 4 Mass. App.

Ct. 710, 712 (1976) ("[The use of deposition testimony] at trial

is premised on a prior right to cross-examine the deponent").

Compare Kirby 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. 32(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 Dept., 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 secure 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. 944 (1989); Schwartz v.

System Software Assocs., 32 F.3d 284, 289 (7th Cir. 1994).

     Contrary to the plaintiff's suggestion, nothing in rule 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 meaning of rule 32.   See Thomas,

604 F.3d at 308 (noting that Federal cognate to rule 32 does not

require the trial court 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 Federal 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 (3d 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 also admissible pursuant to
                                                                    15


     3.   Expert testimony.   We turn to the plaintiff's argument

that the trial judge abused his discretion 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 admitted 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 and the admission of evidence

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

v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000).

Here, we discern no abuse of discretion.   Any concern that the

jury would give Mashali's deposition undue weight as expert

testimony because he was a medical doctor was mitigated by 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 undue 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.
