Tuesday, October 07, 2003
Beware the witness who calls time on his own deposition
In Jeffress v. Reddy, one of the issues was whether Judge Moon of the W.D. Va. properly excluded the deposition testimony of one of the plaintiff's expert witnesses. Prior to the deposition, there was some dispute about payment of the expert's fee, and the Court ordered that the defendant would pay for 2 hours at $500. The expert took this to mean that he could quit answering questions after two hours, which he did. The Court ruled at trial that this transcript could not be used as evidence, because of the way it limited the defense questions, saying "it just seems so grossly unfair that a witness can call off his deposition, say "I am not going to testify any more," and at the deposition he can decide you like what’s there and so you get to use the deposition." On appeal, the Fourth Circuit in a per curiam decision for Judges Widener and Wilkinson, joined in part by Judge Traxler, the trial court's ruling on the deposition testimony was sustained. Judge Traxler dissented on this issue, concluding that there ought to have been something else done other than the complete exclusion of the deposition testimony of the expert.