No Liability For Deposing Child Witness

The Montana Supreme Court affirmed the dismissal of a claim a party brought against opposing counsel in litigation for deposing his minor daughter in a wrongful death action.

The facts

This case originated from the deposition of Tackett’s nine-year-old daughter in a wrongful death medical malpractice action Tackett filed on his own behalf and on behalf of his minor children against his wife’s treating providers. MCGJ are the attorneys for some of the defendants in the wrongful death action.

In addition to being a party to the wrongful death case, Tackett’s daughter was also a potential witness.

The claim

Five days after the deposition, Tackett sued MCGJ. Tackett is the sole plaintiff in this action. The entire basis for Tackett’s claim is predicated on Feller’s approximately three-minute examination of Tackett’s daughter. Tackett alleged that Feller’s examination “foreseeably caused [Tackett] to suffer emotional and physical pain from witnessing his daughter undergo this distressful questioning.” Tackett alleged that MCGJ intentionally or negligently inflicted emotional distress upon him.

No basis for liability

The District Court dismissed Tackett’s claim because as counsel for an opposing party, MCGJ did not owe Tackett a legal duty in conducting the deposition. An attorney does not owe a legal duty to third persons to exercise care while representing their client. Rhode v. Adams, 1998 MT 73, ¶¶ 12, 21, 288 Mont. 278, 957 P.2d 1124. The District Court noted that as an attorney for some of the defendants in the wrongful death action, MCGJ had a legal duty to represent and defend the interests of their clients. The District Court correctly noted that depositions of witnesses who may be called at trial, including children, are permitted under Montana law and that Tackett stated that his daughter might be testifying at trial in the Wrongful Death Action. The District Court held: “Accordingly, [MCGJ’s] deposition questioning was legally warranted. [MCGJ] did not owe Mr. Tackett a legal duty to protect his sensibilities while defending a claim Mr. Tackett brought, while deposing a party and a witness.”

Having reviewed the deposition, the District Court observed that “Attorney Feller’s demeanor and questions asked during the deposition were allowed, appropriate, and warranted considering the circumstances. There is no valid claim arising from the conduct.” The District Court held: “Attorney Feller and MCGJ represent parties adverse to Mr. Tackett in the Wrongful Death Action. They are not legally mandated to protect Mr. Tackett’s emotional well-being while defending the claims he alleged.” We agree.

Tackett filed a medical malpractice lawsuit regarding his wife’s death. Tackett’s daughter was both a named plaintiff in the lawsuit and a witness to her mother’s death. MCGJ advised Tackett that they did not intend to depose his daughter unless he intended to call her as a witness, which he indicated he might. Under the circumstances, it cannot be disputed that it was entirely appropriate for MCGJ to depose Tackett’s daughter. In that regard, “an attorney must be able to vigorously advocate his or her client’s interests in litigation without being compromised by obligations to non-clients.” Rhode, ¶ 21. Tackett concedes that MCGJ “had the right to appropriately question [his daughter].” Tackett contends, though, that MCGJ “had no legal right . . . to improperly and oppressively question her.” The problem with Tackett’s assertion is that just because he characterizes MCGJ’s examination of his daughter as improper and oppressive, it does not make it so.

(Mike Frisch)