Bobrosky v. Vickers

170 F.R.D. 411, 37 Fed. R. Serv. 3d 379, 1997 U.S. Dist. LEXIS 1842, 1997 WL 74202
CourtDistrict Court, W.D. Virginia
DecidedFebruary 14, 1997
DocketCivil Action No. 91-0129-B
StatusPublished
Cited by7 cases

This text of 170 F.R.D. 411 (Bobrosky v. Vickers) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bobrosky v. Vickers, 170 F.R.D. 411, 37 Fed. R. Serv. 3d 379, 1997 U.S. Dist. LEXIS 1842, 1997 WL 74202 (W.D. Va. 1997).

Opinion

MEMORANDUM OPINION

KINSER, United States Magistrate Judge.

Plaintiff filed this action under the court’s diversity jurisdiction, 28 U.S.C. § 1332, and alleged personal injuries as a result of a motor vehicle accident on August 16, 1989. Presently pending before the undersigned1 is defendant’s motion to use three medical depositions at the trial of this case in lieu of live testimony. For the reasons stated hereinafter, the court will grant defendant’s motion as to one of the depositions and deny it as to the remaining two.

I.

The specific depositions which defendant seeks to use at trial are those of Drs. Richard Stephen Fulmer, Neal Jewell, and Michael Moore. Defendant deposed these doctors after giving notice to plaintiffs counsel.2 [413]*413The notices included some variation of language advising that the depositions would be used for evidence or discovery and/or for any other purpose allowed under the Federal Rules of Civil Procedure.3 Despite defendant’s assertion that all counsel participating in the respective depositions understood and agreed that the depositions would be used at trial, there is no written agreement or stipulation except in Dr. Fulmer’s deposition. At the beginning of his deposition, there is a stipulation which states: “The deposition of DR. RICHARD STEPHEN FULMER was taken on behalf of the Defendant, pursuant to notice, for the purpose of being read into evidence in Court Proceedings in the above action____” (Fulmer Deposition (“Dep.”) at 3). Further evidence of defendant’s intent that the depositions were to be used at trial is found in some of the questions. For example defendant’s counsel asked Dr. Fulmer to “briefly tell the Court and the Jury your educational background and training which qualifies you for your profession as a clinical psychologist.” (Fulmer Dep. at 5). In Dr. Jewell’s deposition, defendant’s counsel asked Dr. Jewell to “tell the jury what an orthopedic surgeon is and what they deal in.” (Jewell Dep. at 3). Defendant’s counsel similarly used language such as “for the benefit of the jury” in Dr. Moore’s deposition. (Moore Dep. at 52).

II.

In support of her motion to use these depositions, defendant makes three arguments. Defendant asserts that “exceptional circumstances” under Federal Rule of Civil Procedure 32(a)(3)(E) exist because of the great expense incurred by deposing these doctors under the belief that the depositions would be used at trial and the possible hostil-

ity which the doctors may exhibit upon being advised that they must now appear at trial. Defendant also notes that plaintiff has sued two of the doctors in separate actions and amended this suit to allege an aggravation of plaintiffs injuries by the doctors. These circumstances, argues defendant, will make the doctors even more reluctant to testify at trial. In the alternative, defendant asserts that because the notices advised that the depositions would be used for more than discovery and plaintiff failed to object, plaintiff has waived any objection based on Rule 32. Defendant finally argues that plaintiffs lack of objection coupled with the method of questioning in the depositions evidence the parties’ agreement that the depositions would be used at trial, and in this regard particularly directs the court’s attention to the stipulation at the beginning of Dr. Ful-mer’s deposition.

In response to these arguments, plaintiff denies there was any agreement that the depositions could be used at trial and asserts that any such agreement would have to be in writing pursuant to Rule 29. Plaintiff also contends that defendant has failed to demonstrate “exceptional circumstances” as contemplated by Rule 32, so there is no reason defendant should be allowed to use the depositions instead of live testimony.

A.

The court first addresses the defendant’s argument that the depositions should be allowed because of “exceptional circumstances.” Rule 32 assumes that under normal circumstances the deposition of a witness will not be used at trial in lieu of that witness’s live testimony.4 However, Rule 32(a)(3) sets out five instances in which a deposition may be used at trial. The first is [414]*414if the witness is dead. Fed.R.Civ.P. 32(a)(3)(A). The second is if the witness is at a greater distance than 100 miles from the place of the trial or hearing or is out of the United States.5 Fed.R.Civ.P. 32(a)(3)(B). The third is if the witness is unable to attend because of age, illness, infirmity, or imprisonment. Fed.R.Civ.P. 32(a)(3)(C). The fourth is if the party offering the deposition has been unable to procure the witness’s attendance by subpoena. Fed.R.Civ.P. 32(a)(3)(D). Defendant concedes that none of these four situations exist in this case; instead, defendant focuses the court’s attention on the fifth instance, in which the court, in its discretion, may allow use of a deposition upon application and notice if there are “exceptional circumstances.” Fed.R.Civ.P. 32(a)(3)(E).

In examining whether “exceptional circumstances” exist, the court must view a factual situation through the lens of two specific considerations incorporated into the rule’s subsection. The rule contemplates that “exceptional circumstances” are to be measured in terms of whether it is “desirable, in the interest of justice and with due regard to the importance of presenting live testimony of witnesses orally in open court” to allow a deposition’s use. Fed.R.Civ.P. 32(a)(3)(E). It is especially significant that the drafters wanted courts to give due consideration to the importance of presenting live testimony. See 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2141 (2d ed. 1994) (“The restrictions imposed by Rule 32 make it clear that the federal rules have not changed the long-established principle that testimony by deposition is less desirable than oral testimony and should ordinarily be used as a substitute only if the witness is not available to testify in person.”).

Given this background, the court now examines whether there are “exceptional circumstances” in this case. Other courts which have tried to determine whether a given situation constitutes “exceptional circumstances” have usually looked to the expressly written exceptions in Rule 32 for guidance. Griman v. Makousky, 76 F.3d 151

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Cite This Page — Counsel Stack

Bluebook (online)
170 F.R.D. 411, 37 Fed. R. Serv. 3d 379, 1997 U.S. Dist. LEXIS 1842, 1997 WL 74202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bobrosky-v-vickers-vawd-1997.