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Wise v. Washington County

United States District Court, W.D. Pennsylvania

March 7, 2014

DAVID D. WISE, Plaintiff,
v.
WASHINGTON COUNTY; CAPTAIN MICHAEL KING, individually and in his capacity as a Washington County Corrections Officer; C.O. MARK KELLY, individually and in his capacity as a Washington County Corrections Officer; VICTORIA GORONCY, individually and in her capacity as a Washington County Corrections Nurse; and LAVERNE ROSSI, individually and in her capacity as a Washington County Corrections Nurse; Defendants.

MEMORANDUM ORDER

NORA BARRY FISCHER, District Judge.

I. BACKGROUND

This is a § 1983 case brought by Plaintiff David Wise. Mr. Wise was deposed during discovery on February 21, 2012. (Docket No. 81-5).[1] A jury trial is now scheduled to commence on April 7, 2014. (Docket No. 182).

By way of background, the trial was previously set for December 9, 2013.[2] (Docket No. 145). On December 5, 2013, the Court conducted a Telephonic Status Conference to address the parties' disputes regarding joint exhibits. (Docket No. 176). At this Conference, Plaintiff's counsel informed the Court and the Defendants that Mr. Wise had suffered a seizure earlier that week, and remained in critical care. ( Id. ). Additionally, Plaintiff's counsel suggested that trial proceed as scheduled on December 9, 2013, and that the videotape of Plaintiff's February 21, 2012 deposition be used in lieu of live testimony. ( Id. ). That same day, Defendants filed their "Objections to Allow Trial to Proceed Without the Presence of David Wise." (Docket No. 177).

At a Pretrial Status Conference held on December 6, 2013, the Court heard argument on Defendants' Objections. (Docket No. 180). Briefly, Defendants argued that trial should be continued, rather than conducted in Mr. Wise's absence, in light of: (1) the general preference for live testimony; (2) the potential prejudice Defendants might face if jurors speculate as to the reason for Mr. Wise's absence from trial; and (3) the fact that Defendants obtained evidence after Mr. Wise's February 21, 2012 deposition, which Defendants may have otherwise used for cross-examination purposes. (Docket Nos. 177; 180).

The Court subsequently sustained Defendants' Objections and ordered as follows with respect to the use of Mr. Wise's deposition testimony at trial:

IT IS HEREBY ORDERED that... trial is continued to April 2014 for good cause shown, pending the assurances from David Wise's medical providers that he will be able to physically appear and testify and that Mr. Wise can withstand the stresses associated with a trial that may take multiple trial days. Should such medical assurances not be forthcoming, the Court orders that the Plaintiff submit to a video deposition specifically geared for use at trial, a deposition that would mimic his testimony with his counsel conducting direct examination and Defendants conducting cross-examination. Said deposition should be conducted in a time to be ordered by the Court.
***
If Mr. Wise's health improves to the extent that his appearance and testimony at trial are medically cleared, the Court and Defendants shall be notified in a timely manner and the trial will move forward in April. In that event, the previously described trial deposition, (i.e. the transcript and video) shall be impounded by the Court and will not be used at said trial for any purpose. However, this Order shall not prelude the discovery deposition of Mr. Wise taken on February 21, 2012, to be used at trial, as set forth in the Rules of Civil Procedure, once argument and hearing on any objections occurs and rulings have been issued.

(Docket No. 181). In accordance with this Order, counsel filed a Joint Report containing the parties' additional objections to certain portions of the February 21, 2012 deposition, based on the potential that the deposition may be introduced at trial. (Docket No. 185).[3] The Court now turns to these objections, given the upcoming trial date.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 32 governs the use of depositions during trial:

(a) Using Depositions.
(1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).

FED. R. CIV. P. 32(a)(1).

Therefore, the deposition of Mr. Wise may be admitted to the extent that portions of the deposition are admissible under the Federal Rules of Evidence.[4] FED. R. CIV. P. 32(a)(1)(B). Additionally, pursuant to subsection (a)(2), Mr. Wise's deposition may be used for impeachment purposes in the event that he does appear and testify at trial. FED. R. CIV. P. 32(a)(2) ("Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence."). Finally, in the event that Mr. Wise is not able to attend trial because of his health issues, the Court has discretion to find that he cannot attend because of illness or infirmity, with the effect that his deposition may be used for any purpose. FED. R. CIV. P. 32(a)(4)(C).

When a deposition is used at trial pursuant to Rule 32(a), parties may make objections to portions of the deposition's admissibility. FED. R. CIV. P. 32(b). Accordingly, parties are not limited to the objections raised during the deposition. Id . See also 8A Wright & Miller, Federal Practice and Procedure § 2151, 671-72 (3d ed. 2010). The trial court must determine, pursuant to the Federal Rules of Evidence, what portions of the deposition are admissible, applying the same rules as if the deponent was actually testifying live, during the trial. Id.

Given that Mr. Wise's deposition may be introduced during trial-either in lieu of live testimony or to impeach him on cross-examination-the Court will now rule on objections to the admissibility of any deposition testimony prior to trial. FED. R. CIV. P. 32(b). As noted, the Court must rule just as if the deposition testimony was given during trial. Id.

III. DISCUSSION/ORDERS

1. Discussion Relating to the Deposition Proceedings. During the course of the deposition, which spanned several hours, the parties took several breaks and held discussions off the record. (Dep., passim ). Statements by the videographer and counsel relating to these breaks and the procedure of the deposition are not admissible at trial. See Compton v. Torch, Inc., No. 99-0549, 2000 WL 622604, *5-6 (E.D. La. 2000).

IT IS HEREBY ORDERED that the following lines be deleted from the deposition transcript:

a. Page 5, lines 3-18;
b. Page 30, line 24 through page 31, line 4;
c. Page 69, lines 1-13;
d. Page 82, lines 3-17;
e. Page 196, line 21 through page 197, line 2;
f. Page 229, lines 13-24; and
g. Page 239, lines 8-14.

2. Withdrawn Objections. In the parties' Joint Report, Plaintiff withdraws several objections made during the course of Mr. Wise's deposition and requests that the portions of the deposition containing his stated objections be removed. (Docket No. 185 at 1; Dep. at 13:22-24, 32:3-4, 51:21-22, 62:11-12, 72:5-6, 72:15-16, 104:1, 113:19-24, 122:14-15). Accordingly, and consistent with Plaintiff's averments in the Joint Report,

IT IS HEREBY ORDERED that the following objections made during the deposition are OVERRULED as moot, and shall be deleted from the deposition:

a. Page 13, lines 22-23;
b. Page 32, lines 3-4;
c. Page 51, lines 21-22;
d. Page 62, lines 11-12;
e. Page 72, lines 5-6, 15-16;
f. Page 104, line 1;
g. Page 113, lines 19-24; and
h. Page 122, lines 14-15.

3. Plaintiff indicates in the Joint Report that he withdraws his objections at page 36, lines 8-18. (Docket No. 185 at 1; Dep. at 36:8-18). However, in the Court's review of the deposition, lines 12-13 contain Mr. Wise's answer. Additionally, lines 14-16 contain a question by Mr. Joyal.

IT IS HEREBY ORDERED that Plaintiff's objections made at page 36, lines 8-9 and 17-18 are OVERRULED as moot, and the following lines shall be deleted:

a. Page 36, lines 8-11, 17-18.

4. Objections to Discussions of Former Defendants. In the Joint Report, Plaintiff objects to discussions of former named Defendants Autumn Loughman, Jill Nixon, and C.O. Leer, arguing that the portions of the deposition transcript discussing these individuals are irrelevant, in that these individuals are no longer Defendants. (Docket No. 185; Dep. at 6:11-6:21, 6:22-7:6, 7:21-7:23, 9:10-10:25, 37:18-38:20, 73:13-78:21). Defendants argue that these portions of the deposition should not be extracted because they are relevant to Plaintiff's credibility and ability to remember events. ( Id. ). The Court agrees with Defendants. See In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litig., MDL 2056, 2012 WL 2974680, *12 (W.D. Pa. July 20, 2012) (Conti, J.) (discussing use of deposition testimony to impeach a witness's credibility and recollection).

IT IS HEREBY ORDERED that Plaintiff's objections as to the following lines are OVERRULED, and that the following portions of the transcript, which contain improper[5] statements by Plaintiff's counsel shall be deleted from the deposition transcript:

a. Page 10, lines 4-6, 15-22
b. Page 37, lines 21-22;
c. Page 38, lines 8-9; and
d. Page 73, line 14 through page 74, line 11.

5. References to Substance Abuse. In the Joint Report, Plaintiff objects to several portions of the deposition that discuss Plaintiff's alleged use of marijuana and alcohol. (Docket No. 185 at 2; Dep. at 22:13-23:6, 25:20-29:13, 30:11-30:17). Defendants argue that some of these deposition segments should remain included because they are relevant for impeachment. (Docket No. 185 at 2). Consistent with this Court's ruling at the Pretrial Conference on June 13, 2013 (Docket No. 116), evidence of drug and alcohol use are inadmissible at trial-not because they are irrelevant-but because such references are properly excluded pursuant to Rule 403(b). FED. R. EVID. 403(b).[6] With respect to relevance, Defendant's statements during the deposition that relate to drug and/or alcohol use are potentially relevant for impeachment purposes. Enterprise, 2012 WL 2974680, at *12. Nevertheless, the Court finds references to illegal drug use are unduly prejudicial and risk confusing the issues; therefore, they are inadmissible pursuant to Rule 403. See E.E.O.C. v. Smokin' Joe's Tobacco Shop, Inc., Civ. No. 06-1758, 2007 WL 2461745, *2-3 (E.D. Pa. Aug. 22, 2007).

IT IS HEREBY ORDERED that Plaintiff's objections as to relevance are OVERRULED. The Court further ORDERS that because references to Plaintiff's illegal drug use are inadmissible under Rule 403, the following lines be deleted from the deposition transcript:

a. Page 22, line 13 through page 23, line 6;
b. Page 25, line 20 through page 29, line 13; and
c. Page 30, the portions of lines 11-13 in which Plaintiff states: "And there wasn't none of them drugs in my system or that alcohol. That's all irrelevant."

6. Objections to Relevance. In the Joint Report, Plaintiff objects to including a statement he made at page 22, lines 6-7 regarding a 2005 accident that is contained in Plaintiff's medical records. (Docket No. 185 at 2; Dep. at 22:6-22:7). Defendants argue that this portion of Mr. Wise's deposition is relevant to show bias of Plaintiff and possibly Dr. Tobin. (Docket No. 185 at 2). The Court agrees with Defendants and finds that this statement is relevant to the credibility of Plaintiff and Dr. Tobin. Enterprise, 2012 WL 2974680, at *12. Therefore,

IT IS HEREBY ORDERED that Plaintiff's objection to page 22, lines 6-7 is OVERRULED.

7. Plaintiff objects to a discussion of a wedding in May 2005 and whether Plaintiff drank alcohol at this event, which occurs on page 67, line 12 through page 68, line 5. (Docket No. 185 at 3; Dep. at 67:12-68:5). Plaintiff argues that this discussion is irrelevant and the questioning is argumentative, while Defendants assert that Plaintiff's statements during this discussion may be relevant for impeachment. (Docket No. 185 at 3). Defendants further request that ruling be deferred until it is ascertained whether this testimony contradicts other admissible statements Plaintiff has made. ( Id. ).

The Court initially notes that although this portion of the deposition discusses alcohol, it does not implicate the Rule 403 issues addressed previously in relation to portions of the deposition that go into Plaintiff's alleged marijuana use.[7] The Court agrees with Defendants that this portion of the deposition may be relevant for impeachment purposes. In re Enterprise, 2012 WL 2974680, at *12. The Court will, therefore, defer ruling on this objection. See FED. R. CIV. P. 32(b) (permitting the Court to rule on objections at trial).

IT IS HEREBY ORDERED that ruling on Plaintiff's objection to page 67, line 12 through page 68, line 5 is DEFERRED.

8. Plaintiff objects to a discussion on pages 73 and 74 of the deposition regarding the car accident for which Plaintiff was incarcerated, on the grounds that this discussion is irrelevant and unfairly prejudicial. (Docket No. 185 at 4, Dep. at 73:3-74:11). Upon the Court's review of the deposition, most of the portion to which Plaintiff objects contains discussion between counsel.

IT IS HEREBY ORDERED that, to the extent Mr. Wise testified in response to Mr. Joyal's question, Plaintiff's objection is OVERRULED, [8] in that Plaintiff's testimony may be used for impeachment purposes. In re Enterprise, 2012 WL 2974680, at *12.

IT IS FURTHER ORDERED that the following lines, containing Plaintiff's objection and the subsequent discussion between counsel, be removed from the deposition transcript:

a. Page 73, lines 5, 9-10; and
b. Page 73, line 14 through page 74, line 11.

9. Plaintiff objects to the discussion from page 177, line 8 through page 178, line 18, arguing that the questions were previously asked and answered. (Docket No. 185 at 5, Dep. at 177:11-178:18). Defendants disagree with the objection, but raise their own objection to the relevance of page 177, lines 3-4, which contain a clarifying statement by Mr. Fisher. (Docket No. 185 at 5). Questions that have previously been asked and answered are "commonly sustained to (1) prevent opposing counsel from harassing the witness and (2) prevent cumulative presentation of evidence." Flickinger v. Toys R Us-Delaware, Inc., 492 F.Appx. 217, 225 (3d Cir. 2012) (citing Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 610 (3d Cir.1995)).

Based on the Court's review of the deposition transcript,

IT IS HEREBY ORDERED that Plaintiff's objection is OVERRULED, in part, and SUSTAINED, in part. Specifically, the objection is sustained with respect to page 178, lines 8-18, and otherwise overruled. However, the Court further orders that 177:3-4 and 177:14-25, which contain only statements by counsel, should be deleted-not because they are asked-and-answered-but because statements by counsel are not evidence, and therefore inadmissible.

Accordingly,

IT IS FURTHER ORDERED that the following lines should be deleted from the deposition transcript:

a. Page 177, lines 3-4, 14-25; and
b. Page 178, lines 8-18.

10. Plaintiff objects to the questioning from page 180, line 22 through 182, line 3, arguing that this line of inquiry is irrelevant because it pertains to a dismissed claim. (Docket No. 185 at 5, Dep. at 180:22-182:3). Defendant agrees that the question related to the equal protection claim is irrelevant and should be stricken, but otherwise argues that the testimony is relevant to show bias and/or credibility. (Docket No. 185 at 5). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." FED. R. EVID. 401(a). The Court notes that Plaintiff's equal protection claim was dismissed, and so testimony strictly related to that claim is no longer relevant. (Docket Nos. 74; 77). However, the Court agrees with Defendants ...


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