Court Navigates Complex Four-Part Rule Amid a Paucity of Precedent
Zhiwen Yang was a patient of the Dr. Gregory K. Harmon from August 24, 2015, to November 25, 2015, for the treatment of a cataract of the right eye. During that period, Harmon performed an operative procedure to remove the cataract. Following that procedure, Harmon allegedly prescribed medications to Yang, including Ketorolac. Yang allegedly sustained injuries including loss of vision in her right eye.
In April 2017, Yang, and her husband, Keping Qu, suing derivatively, commenced an action to recover damages for medical malpractice and lack of informed consent against, among others, Harmon and his medical practice, Gregory K. Harmon, M.D., P.C. The Yangs alleged that Harmons departed from the accepted standard of care in providing pre-operative, operative, and post-operative care, and prescribed contraindicated medications for Yang, without informing her of the risks, potential adverse reactions, or alternatives.
Yang’s deposition was scheduled to take place on March 2, 2018. According to an affidavit from Mandi Biello, a calendar coordinator for Harmon’s counsel, her responsibilities included retaining an interpreter for depositions of parties who do not speak English. Biello averred that, prior to the scheduled date for Yang’s deposition, she was advised by counsel that Yang, who did not speak English, required the services of a Mandarin interpreter. Biello indicated that she retained a Mandarin interpreter to appear at the deposition, but that interpreter was unable to interpret for Yang because the interpreter “did not speak the same dialect” as Yang. As a result, the deposition did not take place on March 2, 2018.
Thereafter, Biello contacted various translation companies in New York and New Jersey, and advised the Yangs’ counsel of the name of a potential interpreter. However, that interpreter was not able to adequately interpret for Yang. Biello averred that she also contacted the Chinese Consulate in New York, but received no responses to her inquiries.
Biello indicated that “[a]lthough I was initially advised that [Yang] required a Mandarin interpreter, I was told after the deposition that Ms. Yang would require an interpreter who spoke Guizhou.” However, Biello stated that she subsequently learned that “Guizhou is not a language but rather a region in China where the residents speak a number of different dialects.” Biello added that she was never provided with “the exact dialect Ms. Yang speaks,” as would be needed to obtain a suitable interpreter for her deposition.
On October 24, 2018, George Kao, a senior court interpreter employed by the New York State Unified Court System, was instructed to assist the parties in locating a suitable interpreter for Yang. In Kao’s affidavit, he averred that he met with Yang and her daughter, Wenhong Qu, on October 31, 2018. Kao indicated that, after speaking with them, he advised the Supreme Court and counsel for all parties that “there were no official court interpreters employed by UCS who could help in this case.” Kao attested that he recommended that someone contact Geneva Worldwide, an interpreting company, and that the Yangs’ counsel contacted that agency and represented that it did not employ anyone who could accurately interpret for Yang. Kao also stated that he made inquiry with the language department at the Office of Court Administration, which contacted the “Asian Bar Association” and received information regarding two Chinese students studying in the United States, but neither of those students was “able to fully understand [Yang].” Kao then advised the Yangs’ counsel to contact the head of a Chinese-American bar affinity group in Queens, which did not result in the discovery of a suitable interpreter.
Kao stated that “[d]espite my best efforts and having exhausted my personal and professional network, I have been unable to locate an appropriate interpreter who can help in this case.” However, Kao indicated that Qu was able to “fully and completely communicate with her mother and she also speaks fluent English.”
In an order dated November 28, 2018, Supreme Court directed that Qu serve as interpreter at Yang’s deposition, to be conducted on or before February 15, 2019.
In a letter dated December 18, 2018, the Yangs’ attorney requested that Harmon’s counsel contact his office to schedule Yang’s deposition. In a responsive letter dated December 19, 2018, Harmon’s attorney notified the Yangs’ counsel that an agency had been located which might be able to provide an interpreter for Yang, but information was needed from the Yangs regarding the specific dialect she spoke to ensure the agency could provide a suitable interpreter. Harmon’s counsel enclosed a map of the Guizhou Province and requested that Yang circle the area on the map where she came from to aid in determining her dialect. Harmon’s counsel also attached a list of 12 dialect subdivisions of Southwestern Mandarin and requested that Yang circle the particular dialect she spoke. There was no indication in the record that the Yangs responded to the letter.
Harmon thereafter moved, in effect, to vacate so much of the order dated November 28, 2018, as directed that Qu serve as interpreter at Yang’s deposition. In support of the motion, Harmon argued that Qu was not a proper person to serve as interpreter because she was related to Yang. In addition, Harmon asserted that Qu could not serve as interpreter because she would be a witness in the action, as she had accompanied Yang to medical appointments with Harmon and interpreted all conversations between Yang and Harmon.T
In opposition to the motion, the Yangs submitted an affidavit from Qu, who averred that she had been born in Guizhou, a province in western China, and that her primary spoken language was a “subdialect of Mandarin Chinese that is native to the region,” although she was also fluent in English. Qu attested that “[a]lthough I am related to the plaintiff, I verily state that I am willing and able to interpret my mother’s testimony accurately, completely and impartially.”
In an affirmation submitted in opposition to the motion, the Yangs’ attorney argued that Harmon waived their right to object to the appointment of Qu by failing to raise any objections when attempts to locate an interpreter failed in the months leading up to this Court’s November 28, 2018 order. The attorney further contended that Harmon failed to demonstrate that Qu was biased, and that there was no individual other than Qu available to act as an interpreter for Yang. The Yangs’ attorney did not dispute that Qu would be a witness based on her personal knowledge of the discussions between Yang and Harmon, or claim to have disclosed to Harmon any information regarding the specific dialect spoken by Yang.
In an order dated October 23, 2019, Supreme Court denied Harmon’s motion to vacate so much of the order dated November 28, 2018, as directed that Qu serve as interpreter at Yang’s deposition. The order did not contain any explanation for the court’s determination. Harmon appealed.
There was a paucity of New York State case law discussing the appointment of an individual to serve as interpreter for a party with whom that individual was closely related.
Initially, the appellate Court found there was no merit to the Yangs’ contention that Harmon waived the right to challenge Supreme Court’s directive that Qu serve as interpreter for Yang. A waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence, but rather the party claiming a waiver must proffer evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right. Here, there was no indication in the record that the possibility of Qu serving as interpreter was discussed with Harmon at any time in the months leading up to the issuance of the order dated November 28, 2018, let alone that Harmon or his counsel ever consented to have Qu serve as interpreter. Thus, even assuming that, as the Yangs claimed, that Harmon “did nothing to help” find a suitable interpreter, such failure to act would not constitute a waiver.
Turning to the issue of whether Supreme Court’s directive that Qu serve as interpreter for Yang was a provident exercise of discretion, it was first necessary to evaluate the circumstances under which a party may use a relative as an interpreter. Case law from New York, other states, and federal courts have been largely consistent in holding that the appointment of a party’s relative to serve as his or her interpreter is permissible, but only when “absolutely necessary” as a last resort. Further, the “least biased person available should be appointed” and the court should conduct a hearing to determine whether a “less interested” interpreter was available and to ensure that the potential interpreter “would give an accurate and unbiased translation”. In conducting such a hearing, the court must be apprised of the language spoken by the witness in need of an interpreter, since without such information, it would be impossible for the court to determine whether a disinterested interpreter was available. In addition, the court must consider whether the potential interpreter had personal knowledge of the facts of the case, and might himself or herself be a witness.
Consequently, the Court held that the appointment of an individual to serve as interpreter for a relative or to serve as interpreter in an action or proceeding in which the interpreter has personal knowledge of the relevant facts is only permissible under exceptional circumstances. In evaluating whether such circumstances are present, courts must consider the following: (1) whether sufficient information has been disclosed by the party in need of an interpreter to the court and to opposing parties so as to allow for a thorough search for a disinterested interpreter; (2) whether an exhaustive and meaningful search has been conducted for a disinterested interpreter; (3) whether the potential interpreter is the least interested individual available to serve as interpreter; and (4) whether the potential interpreter is capable of objectively translating the testimony verbatim, which may only be assessed after the court has conducted an inquiry of the potential interpreter. Unless the court is satisfied that each of these four elements had been satisfied, then the potential interpreter must not be permitted to serve as interpreter in view of the “danger that [the] witness’ [testimony] will be distorted through interpretation,” “either consciously or subconsciously”.
Applying that standard on appeal, the Court determined the Supreme Court should not have directed that Qu serve as interpreter for Yang.
With regard to the first element, there was no indication in the record that the Yangsever disclosed to the court, Harmon or the translations companies the specific dialect spoken by Yang. Indeed, in Qu’s affidavit, she did not indicate the specific dialect spoken by her and Yang, referring to it simply as “a subdialect of Mandarin Chinese that is native to the region and spoken daily in my home.” Likewise, on appeal the Yangs continued to refer to Yang’s language as either “the Guizhou dialect”—despite the fact that Guizhou is a province, and not a dialect—or simply a “subdialect of Mandarin.” Without any information as to the specific dialect spoken by Yang, it would have been effectively impossible for anyone to locate a disinterested interpreter who spoke the same dialect, unless a Mandarin interpreter selected to appear at a deposition happened to, by chance, speak the same subdialect as Yang.
Moreover, there was no indication in the record that the Yangs responded to Harmon’s request that Yang circle the area on a map of the Guizhou Province to indicate where she came from so as to aid in determining her dialect, or to circle the particular dialect spoken by Yang from a list of 12 dialect subdivisions of Southwestern Mandarin. Had the Yangs provided a response to that inquiry, it was conceivable that Harmon would have been able to locate a suitable disinterested interpreter. In the absence of such information, it would be premature to determine that it was “absolutely necessary” to appoint Qu to interpret her mother’s testimony.
Further, with regard to the second element, there was no question that numerous efforts were made to locate a disinterested interpreter over an extended period of time. However, given the absence of sufficient information regarding the specific dialect spoken by Yang as needed to locate a suitable disinterested interpreter, it could not be said that a meaningful search for a disinterested interpreter was conducted.
With regard to the third element, there was no indication in the record as to the possibility of a less interested interpreter. It was conceivable that other members of Yang’s family might speak the same dialect, who—unlike Qu—were not present during visits between Yang and Harmon, and thus, would at least lack personal knowledge of the relevant facts of this action. The Yangs do not dispute that Qu would be a material witness in the action given that she served as interpreter between Yang and Harmon, which heightened the already inherent risk in permitting an individual to interpret the testimony of a relative.
Finally, with regard to the fourth element, Supreme Court failed to conduct any inquiry of Qu to assess her capacity to objectively interpret her mother’s testimony verbatim. Rather, the court simply accepted Qu’s conclusory statement in her affidavit that “[a]lthough I am related to [Yang], I verily state that I am willing and able to interpret my mother’s testimony accurately, completely and impartially.” Notably, Qu did not aver that she was capable of interpreting accurately and completely despite her personal knowledge of the relevant facts in this action. In light of Qu’s personal knowledge of the relevant facts, there was an apparent risk she might, consciously or unintentionally, fill in any gaps in Yang’s testimony or even change the testimony to the extent Qu remembered the events occurring differently than Yang’s recollection. Based on that risk, the Supreme Court’s failure to engage in any inquiry of Qu prior to directing that she serve as interpreter was erroneous.
Under the circumstances of this case, Supreme Court should have granted Harmon’s motion to the extent of vacating so much of the order dated November 28, 2018, as directed that Qu serve as interpreter at Yang’s deposition.