Esprit Health LLC v. University of Delaware et al

Filing 112

MEMORANDUM ORDER providing rulings and direction regarding issues arising from the deposition testimony of Dr. Irene Sprague Davis (see Memorandum Order for further details). Signed by Judge Richard G. Andrews on 9/9/2015. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ESPRIT HEALTH LLC,
Plaintiff,
Civil Action No. 13-1385-RGA

v.
UNIVERSITY OF DELAWARE,
and STEVEN J. STANHOPE,
Defendants.

MEMORANDUM ORDER
Issues have arisen about the deposition testimony of Dr. Irene Sprague Davis. (D.I. 1061). In particular, is she a witness for whom it was proper for Plaintiff to be asking leading
questions. The issue was raised during the deposition. (D.I. 106-1, pp. 24-25). The deposition
reveals that she was a professor for more than twenty years at Defendant University of Delaware,
and still carries the more-or-less honorary title of "Emeritus Professor." On the grant that is the
subject of the lawsuit, she was one of three principal investigators, the second of whom is the
other Defendant, Dr. Steven Stanhope.
Rule 61 l(c) permits leading questions "when a party calls ... a witness identified with an
adverse party." Fed. R. Evid. 61 l(c)(2). Dr. Davis is "identified" with Defendants as a former
employee and co-worker. I think this is sufficient. See Chonich v. Wayne County Community
College, 874 F.2d 359, 368 (61h Cir. 1989) (former personnel director); Haney v. Mizell Memorial
Hosp., 744 F.2d 1467, 1478 (11th Cir. 1984) (former nurse). I also note that the deposition

transcript shows that Dr. Davis had her own opinions, which she expressed despite the

sometimes leading questions.
On the specific objections raised by Plaintiff by letter dated September 1, 2015 (D.I. 102
& 102-1 ), which I have numbered from 1 to 11 below, and/or as supplemented by letter dated

September 8, 2015 (D.I. 110), including "9A" below, I rule as follows:
1. "24.11" - objection withdrawn at the pretrial conference.
2. "45: 13" - objection sustained, as her answer (to the extent it is an answer - "I would
assume so") is an opinion for which there is insufficient foundation.
3. "47:01" -46:19 to 47:15 is struck. The witness's testimony in this portion does not
answer the question asked, and is immediately withdrawn by the witness. It is not probative of
anything.
4. "59:05" - objection sustained on 59:1 to 59:10 as, among other things, it is a repetition
of the asked-and-answered question at 58:19. In the second letter (D.I. 110), Defendants increase
their request, but they did not contemporaneously object to the additional portions about which
they now complain. If there had been a timely objection, I believe Plaintiff could have asked a
different question, perhaps about the usual practices in submitting proposals for grant awards,
and gotten about the same answers.
5. "60: 17" - objection sustained, no personal knowledge.
6. "62:24" - objection sustained, no relevance. (See also D.I. 110). Strike 62:11to63:9.
7. "65:19" - objection sustained, first two questions not relevant, and third question not
probative in view of witness's answer.
8. "67: 16" - objection sustained, as witness did not answer the question. The lines
struck are 67:10 to 68:1.
9. "7[7]:19" - objection sustained, as the question calls for speculation, and the answer is

not probative.
9A. "87:14" - (only in D.I. 110)-the only objection is leading, and that is overruled.
10 & 11. Without dispute, the items at "152:11" and "153:06" will be struck.
On the specific objections raised by Plaintiff by letter dated September 8, 2015 (D.I. 108),
I rule as follows:
1. "99:18" - objection sustained, as I think the question does call for a legal conclusion.

2. "140:7" - objection sustained, as what Dr. Davis would have done or understood is
irrelevant.
3. "140: 13" - objection sustained, and I doubt that Plaintiff even asked Defendants if
there was a dispute on this one.
The Court further DIRECTS that the parties cause to be deleted from the video the
objections. The Court further DIRECTS that the parties cause to be deleted pointless colloquy

(e.g., 18:13 to 19:19, 24:17 to 25:19, 39:15 to 39:24, 73:12 to 73:14, 86:14 to 87:5, 90:21 to
91:8, 96:9 to 96:17, 122:20 to 123:8). The Court encourages the parties to confer and to
consider deleting some of the other redundant and irrelevant portions of the transcript.
It is SO ORDERED this

i

day of September 2015.