Brief Fact Summary. Plaintiffs, Daniel Battle and his parents, appealed a summary judgment for Defendants, Memorial Hospital at Gulfport and several physicians, because the lower court excluded deposition testimony.
Synopsis of Rule of Law. A discovery deposition can be used at trial providing that the witness is unavailable and the party using the expert witness did not procure the unavailability.
The first issue is whether Plaintiffs’ expert’s deposition should be excluded from the jury because it was a discovery deposition.
The second issue is whether Defendants can insist that Dr. Young’s testimony take the form of a video testimony rather than live testimony.
Federal Rules of Civil Procedure 26 allows for Lakeman’s deposition to be used at trial because Lakeman satisfied the requirements of an unavailable witness. Lakeman was not within 100 miles of the trial, but Defendants did have an opportunity to depose him (although they insist it was not in a cross-examination manner, but rather open-question discovery format).
Defendants can successfully request that Dr. Young’s testimony be taped because Dr. Young was outside of 100 miles and therefore Plaintiffs had to develop a strategy of examination with the understanding that he would be unavailable. Plaintiffs can not force Defendants to alter or give away their strategy by making the witness now available.
Discussion. The court made an attempt to balance justice with courtroom fairness. Plaintiffs would have no case if Lakeman’s deposition was excluded.