Depositions at trial: prejudicial error to admit video “preservation” deposition of expert w/o showing witness unavailable.

Nichols and Nichols, Guardians of Nichols v. Brattleboro Retreat d/b/s/ Retreat Healthcare (2007-310) (23-Jan-2009) (Reiber, C.J.; Burgess, J., dissenting.)

Plaintiffs in this medical negligence action appeal from a judgment based on a jury verdict, in favor of defendant, the Brattleboro Retreat. Plaintiffs contend the court erred in admitting the deposition testimony of an expert witness without finding that the witness was unavailable. We conclude that the admission of the deposition testimony was error, and reverse and remand.

The trial court did not make the requisite finding that the witness was unavailable as a basis for admission. Instead, because the sole purpose of the deposition was to preserve testimony for trial, the court found that plaintiffs had waived the objection by failing to raise it at the deposition. We agree with plaintiffs that the facts and the law do not support the court’s finding of a waiver. There is no question, to be sure, that plaintiffs were aware of the stated purpose of the deposition and extensively examined the witness with this understanding. Nevertheless, plaintiffs expressly denied having entered into any stipulations at the start of the deposition, and, more importantly, were under no affirmative obligation to raise an objection at that time; it remained defendant’s burden, as the proponent, to establish a foundation for the deposition’s admission at trial. See Duto v. Mitchell, 158 Vt. 653, 654, 609 A.2d 988, 989 (1992) (mem.) (although plaintiffs had informed defendant of their intent to introduce deposition at trial and defendant did not object, defendant “never agreed affirmatively to waive its right to require the in-court appearance” of the witness, and defendant’s silence did not amount to acquiescence). Hence, we cannot conclude that the record supports a finding that plaintiffs waived their objection to the deposition or implicitly agreed to its admission. Moreover, there was no finding that the witness actually was unavailable. Accordingly, it was error to admit the deposition. The admission of the deposition was prejudicial because it was the sole evidence offered by defendant on a central issue.

Burgess, J., dissenting, would have held the “absence of Dr. Rabinowitz’s physical appearance in court “ was harmless error. The deposition was preceded by plaintiffs’ initial discovery deposition when the nature and scope of Dr. Rabinowitz’s opinion and the basis therefore could be known in advance of the preservation deposition. The deposition at issue was specifically noticed and conducted as a “preservation” deposition where objections could be interposed for ruling at trial. The doctor’s preserved testimony was videotaped, so that his tone and demeanor on direct and cross-examination could be observed. Plaintiffs were therefore prepared to vigorously cross-examine the expert at the second deposition, and the record shows that this is precisely what occurred.