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Products Liability Depositions: Voluntary Absence, Pretrial 'Slivers' of Testimony By Michael Hoenig - New York Law Journal - March 14, 2005	Print article

In this month's column, we survey two recent federal decisions on the use of and admissibility of depositions: The first explores whether a party's voluntary absence from trial renders his or her deposition usable instead. The second illustrates how a sliver of pretrial testimony can unravel expert testimony, persist dispositively despite attempts to modify the earlier statement and doom the claim.

'Unavailability' Exception

Many attorneys do not think of deposition testimony as being inadmissible hearsay but ordinarily it is. Admissibility comes not because depositions are taken under oath but because some procedural rule provides specific authorization to admit the pretrial testimony. So, for example, Federal Rule of Civil Procedure 32(a)(3)(B) creates an exception to the hearsay rules where the witness is more than 100 miles from the place of trial or hearing or is outside the United States. If the court "finds" this to be true, then the deposition of the witness, whether or not a party, "may be used by any party for any purpose . . . ." This is the so-called "unavailability" exception.

Clearly, admissibility is by fiat of the procedural rule. This also is illustrated by the fact that the burden of proving that the requirements have been met and that the deposition is admissible is upon the proponent of the deposition. Also illustrative is that the "unavailability" exception of Rule 32(a)(3)(B) itself has an exception, namely, that the testimony may not be used if "it appears that the absence of the witness was procured by the party offering the deposition . . . ." Obviously, if deposition testimony had intrinsic admissibility, rather than hearsay status, such particulars would be unnecessary.

Another, yet independent, basis for the admission of deposition testimony is Federal Rule of Evidence 804. Rule 804(b)(1) permits a party to seek admission of deposition testimony as an exception to the hearsay rule when the declarant is "unavailable as a witness." Under Rule 804(a)(5), the declarant is "unavailable" if he or she "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means." However, if the witness's unavailability is due to the procurement or wrongdoing of the proponent of the deposition statement "for the purpose of preventing the witness from attending or testifying," then the declarant is not deemed "unavailable" as a witness. The party wishing to introduce a deposition under the evidence rule has the burden of showing unavailability.

Now, what happens when a party's voluntary absence from trial ensues? Let's say the party voluntarily leaves the country because of some circumstance, whether due to perceived business imperatives (e.g., "my business deal is more important than this hearing"); personal preference (e.g., "I've had this vacation planned for a long time"); or strategic reasons (e.g., "the deposition testimony went well but you may not do as well at the trial"). Can the party absent him- or herself and expect to get the deposition testimony admitted?

As far as Federal Civil Procedure Rule 32(a)(3) is concerned, does the party's voluntary absence from trial fit within the plain meaning of the rule? Has the witness' unavailability been "procured" by the party offering the deposition? Is the deposition testimony barred? The answers to these questions were reflected in a U.S. Court of Appeals for the Tenth Circuit decision issued at the end of 2004, Garcia-Martinez v. City and County of Denver.¹ This was an excessive-force civil rights lawsuit against the city of Denver by a Honduran illegally in this country. He returned to his country prior to trial but, fearing arrest if he returned, failed to appear at trial. His counsel sought to introduce his deposition in lieu of live testimony. The federal district court denied this request. The jury found in favor of the police. Plaintiff appealed contending that his deposition was wrongfully rejected.

The Tenth Circuit held that the trial court did not abuse its discretion in rejecting the deposition. Remarkably, the Tenth Circuit had never before addressed the question of a plaintiff's voluntary absence at trial in connection with a proffered deposition. However, other circuits and commentators have concluded that Rule 32(a)(3) requires the proponent to demonstrate to the trial court "that he has not procured his own absence."² Other cases hold that the mere fact a party is more than 100 miles from the courthouse does not require the district court to automatically admit a party's deposition. Rather, the trial court "may consider all the circumstances relating to the party's absence to determine whether the deposition may be used."³

The preference for a witness' attendance at trial is said to be "axiomatic." When key factual issues at trial turn on the "credibility" and "demeanor" of the witness, said the panel, "we prefer the finder of fact to observe live testimony of the witness. This is especially true when the witness is the plaintiff."⁴ The trial court retains significant discretion in applying Rule 32 to an absent party. Here plaintiff brought about his own absence from trial by choosing to leave the country and "thus he was not eligible to invoke Rule 32(a)." The Tenth Circuit, however, refused to establish a per se rule that any plaintiff who procures his own absence is not eligible "to seek refuge" in Rule 32. Possibly, some "good faith" exception in some case might be warranted. However, in a footnote, the panel stated that it found no authority suggesting such an exception exists and expressed no opinion "whether such an exception exists or, if not, should be created."⁵

Since Federal Rule of Evidence 804(a) furnishes an independent ground for admitting deposition testimony, the court examined the issue from that perspective as well. A declarant is "unavailable" if he or she is absent from the hearing and "the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means." A declarant, however, is not unavailable if the absence, refusal or inability is "due to the procurement or wrongdoing of the proponent . . . for the purpose of preventing the witness from attending or testifying." Here plaintiff was absent to avoid arrest.

The "sponsor of a declarant's former testimony may not create the condition of unavailability and then benefit therefrom."⁶ Further, although the federal rules provide a mechanism for admitting deposition testimony, they do not change the "long-established principle that testimony by deposition is less desirable than oral testimony." The deposition is treated as a "substitute," a "second-best," not to be used "when the original is at hand." Plaintiff here did not meet the two factors Rule 804(a) provides to determine "unavailability" because he voluntarily failed to return for trial and because his absence was calculated.

Moreover, no "good faith" exception was called for. For example, plaintiff offered no evidence showing alternative options for testifying had been exhausted. He made no attempt to obtain a temporary visa for the limited purpose of attending trial. He did not demonstrate that alternatives to live testimony such as testimony by video-conferencing were unavailable. Exclusion of the deposition was justified.

Testimony Conclusive

A recent decision by Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York illustrates just how important deposition or pretrial testimony can be. In Davidov v. Louisville Ladder Group, LLC,⁷ expert testimony about causation was toppled when the plaintiff described the events contradictory to the expert's theory. This circumstance invited a motion for summary judgment by defendant. Then plaintiff, in an affidavit submitted in response to the motion, tried to contradict the earlier, unhelpful testimony. But this gambit ran head-on into yet another rule refusing to credit such attempts at contradiction. The result was lethal for the claim. All this because of two or three short answers in pretrial testimony. Since the lessons for both sides are profound, here is a capsule view of the facts and rulings in Davidov.

Plaintiff fell off a ladder while standing on the third step and attempting to fit a drain pipe into a roof gutter. Plaintiff sued the manufacturer alleging design, manufacturing and warnings defects. Plaintiff's expert, Dr. O, issued a report saying that by the time plaintiff reached the third rung, the ladder's right rear leg had "racked," or lifted off the ground because of forces causing the frame to twist during plaintiff's climb. When plaintiff reached over to his right the weight transfer caused the right rear leg to come down hard and dislodge him. According to Dr. O, "racking" was the "only reasonable cause" of the mishap. However, plaintiff had testified at his deposition that all four legs of the ladder were on the ground when he fell off. This prompted defendant to move to preclude Dr. O.

Live testimony was heard on the motion from plaintiff and Dr. O in two sessions. The expert demonstrated in court the ease with which a ladder's rear steps may be lifted during the climbing process. The court thought the expert's theory was internally "logical and reasonable" and was "supported" by the demonstration and a test the expert had devised. Nevertheless, while the expert's testimony was not internally inconsistent, "an essential element of his theory is contradicted by the evidence in the case."

The only factual evidence about the rear leg and its elevation came from plaintiff's testimony. At the hearing he said that when he was on the third step, "The four legs was on the ground." And, when asked again, he said, "Yes, it was on the ground." At the end of the hearing Judge Stanton ruled that the expert's conclusion was in conflict with the evidence. In "the teeth of that evidence," the expert "can get very little comfort from the test he conducted." An expert's opinion not based on the evidence "is little more than speculation and it cannot be the basis of a verdict in conflict with the uncontradicted evidence in the case."⁸ The motion to exclude the opinion was granted. A motion for reconsideration was denied.

Modification Rejected

Defendant then moved for summary judgment. Plaintiff's declaration in opposition to the motion said that his hearing testimony meant, "as far as I knew," as opposed to actually knowing that all four legs were resting on the ground. He further declared, "I knew no such thing. When I climbed up the ladder . . . , I did not know that the rear leg had become elevated above the ground." The problem with this later attempt to explain away the earlier testimony is an established rule: "A party may not create an issue of fact by submitting an affidavit in opposition to summary judgment that, by omission or addition, contradicts the affiant's previous deposition testimony."⁹

Indeed, the afterthought statement, "I did not know the leg was raised," did not even serve its purpose because that declaration "does not prove that it was raised." Nor does it contradict plaintiff's earlier testimony that "the four legs was on the ground." Plaintiff's last-minute declaration, therefore, did not create a genuine issue of fact for trial. Plaintiff's warnings claim, namely, that defendant had failed to warn against "racking" also failed, "in light of the uncontradicted testimony that all four legs of the ladder were on the ground." Summary judgment was granted.

In our February 2003 New York Law Journal column,¹⁰ we reviewed Stuart M. Israel's fine article, "130 Rules for Every Deponent."¹¹ Then, in our January 2004 NYLJ column,¹² we reviewed Mr. Israel's excellent book on deposition practice, "Taking and Defending Depositions," published by ALI-ABA. The book expanded his earlier "130 Rules" to "162 Essential Rules," and that was only one chapter in Mr. Israel's book.

We elaborated on these writings at some length to emphasize the importance of good deposition practice. Although many litigators view depositions as the "junior leagues" or as an obligatory ritual, a mere precursor to the real action at trial, we emphasized that such attitudes are mistaken. As Mr. Israel has written, discovery depositions are "watershed events in litigation — the catalysts for settlement and the linchpins of dispositive motions . . . . Depositions are tests — often for high stakes." The recent decisions reported here reinforce that advice.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________
1. 392 F.3d 1187, 1190-1193 (10th Cir. 2004).
2. Garcia-Martinez, 392 F.3d at 1191.
3. Id. (citing Moore's Federal Practice §32.24[5] (3d ed. 2003)).
4. Garcia-Martinez 392 F.3d at 1191-1192.
5. Id. at 1192 n. 1.
6. Id. at 1192 (citing other circuit decisions).
7. The New York Law Journal, March 8, 2005, p. 22 (SDNY 2005).
8. Davidov, NYLJ, March 8, 2005, at p. 22 (quoting from hearing transcript).
9. Id. (quoting from Hayes v. NYC Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996)).
10. Hoenig, "Survey of Recent Practice Tips for Tort Litigators," NYLJ, Feb. 10, 2003, p. 3.
11. Published in the Summer 2001 issue of Litigation, a Journal of the Section of Litigation of the American Bar Association.
12. Hoenig, "Worthwhile Reading on Depositions, Trials and Persuasion," Jan. 12, 2004, p. 3.