Spencer et al v. United States of America et al

Filing 51

ORDER denying 49 Motion to take video deposition of expert. Signed by Magistrate Judge Thomas B. Smith on 5/29/2019. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CATHY ANNE SPENCER,
Plaintiff,
v.

Case No: 6:17-cv-887-Orl-41TBS

UNITED STATES OF AMERICA,
Defendant.
ORDER
Pending before the Court is Plaintiff’s Motion for Leave of Court to Take Video
Deposition to Perpetuate Trial Testimony (Doc. 49). Plaintiff seeks leave to take a video
deposition of her treating physician for use at trial. Defendant opposes the motion (Doc.
50).
Background
This is an action for damages for personal injury under the Federal Tort Claims Act
(Doc. 1). On October 11, 2018, Defendant noticed the deposition of Plaintiff’s treating
physician, Paul Keller, M.D., to occur on December 18, 2018, well prior to the original
discovery deadline of February 1, 2019 (Docs. 50-1, 37). The Notice of Taking Deposition
Duces Tecum advised that: “The oral examination will continue until testimony is
complete and is being taken for the purpose of discovery, for use at trial or such other
purposes as authorized by law.” (Doc. 50-1, emphasis added). Plaintiff did not cross
notice the deposition but her lawyer appeared and questioned the witness (Doc. 50-2).
On January 15, 2019, the Court stayed the case management deadlines due to the
government shutdown (Doc. 40). On January 30, 2019, the Court reopened the case and

on February 14, 2019, entered an amended Case Management and Scheduling Order
(“CMSO”), setting April 2, 2019, as the discovery deadline and April 30, 2019, as the
dispositive motion deadline (Doc. 44). The instant motion was filed on May 8, 2019.
Discussion
More than a month after discovery closed, Plaintiff seeks leave to take a second
deposition of Dr. Keller, this time by videography, in order to “perpetuate trial testimony.”
Plaintiff argues that Dr. Keller’s office is located more than 70 miles from the courthouse
and Dr. Keller “prefers not to take time out of his chosen field, practicing orthopedic
medicine, to drive to Orlando to testify.” (Doc. 49, ¶ 9). Plaintiff also advises that Dr. Keller
charges in excess of $10,000 for trial testimony, versus $2000 per hour for videotaped
deposition testimony. Plaintiff argues that presenting Dr. Keller’s testimony at trial by
video is advantageous for everyone and should be allowed.
Plaintiff acknowledges that “Dr. Keller's testimony is required to be presented live
in trial unless the Court allows it under Rule 32(a)(4)(E) of the Federal Rules of Civil
Procedure” 1 (Doc. 49 at 6). She argues that Dr. Keller should be deemed an unavailable
witness so that videotaped testimony can be used. But that issue assumes that a second
deposition will be allowed, and the Court does not find good cause to do so.

1

The Rule provides in part:

(a) Using Depositions.
…
(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether
or not a party, if the court finds:
…
(E) on motion and notice, that exceptional circumstances make it desirable--in the interest of
justice and with due regard to the importance of live testimony in open court--to permit the
deposition to be used.
FED. R. CIV. P. 32(a)(4)(E).

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Plaintiff’s implicit assertion that because she intends to use this deposition for trial
purposes, it is somehow not subject to the deadlines set forth in the CMSO is
unsupported. Case law in this district recognizes that the rules make no distinction
between trial depositions and discovery depositions. See Marshall v. Rice, 211 F.R.D.
680, 681 (M.D. Fla. 2002) (“Simply put, the rules no longer recognize de bene esse
depositions.”); Rhodes v. Lazy Flamingo 2, Inc., 2:14-CV-561-FTM-29CM, 2016 WL
4992418, at *2 (M.D. Fla. Sept. 19, 2016) (“it is not unreasonable or uncommon for
discovery deadlines to apply to all depositions regardless of the depositions' purposes
and timing because the Federal Rules of Civil Procedure do not make distinctions
between trial depositions and discovery depositions,” citing Dopson-Troutt v. Novartis
Pharm. Corp., No. 8:06-cv-1708-T-24-EAJ, 2013 WL 5231413, at * 2 (M.D. Fla. Sept. 16,
2013)); St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, 8:06-CV-223-T-MSS, 2007
WL 9723775, at *1-2 (M.D. Fla. Apr. 19, 2007) (denying a motion for leave to take a
deposition to perpetuate testimony for trial, and calling the de bene esse procedure
“antiquated”). Certainly, the Notice setting Dr. Keller’s deposition did not limit its use to
discovery but explicitly noted that the deposition was also being taken “for use at trial.”
There is nothing unusual about this deposition to take it out of the confines of the case
management deadlines and the discovery deadline has long since passed.
Under Federal Rule of Civil Procedure 16, scheduling orders may be modified only
for good cause and only when the schedule “cannot be met despite the diligence of the
party seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th
Cir.1998) (citation and internal quote omitted). There is no showing of good cause or
diligence here and the record affirmatively belies any such claim. Plaintiff had a full and
fair opportunity to question the witness at the scheduled deposition and did so. She could

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have cross-noticed the deposition in order to take it by video but didn’t. See Rule
30(b)(3)(B), FED. R. CIV. P. (“With prior notice to the deponent and other parties, any party
may designate another method for recording the testimony in addition to that specified in
the original notice.”) The grounds presented to justify a video deposition for trial purposes
(he is a doctor, he is busy, it is expensive to pay him for his time to testify) are not
unforeseen and were known and present prior to the close of discovery. Stated simply,
there is no good reason to extend the case management deadlines to allow for a second
deposition.
Even if the motion were timely and grounds existed for a second deposition, the
Court does not find the grounds asserted by Plaintiff exceptional within the meaning of
Rule 32. See Whyte v. U.S. Postal Serv., 280 F.R.D. 700, 701 (S.D. Fla. 2012) (denying
motion to use deposition of a plaintiff’s treating doctor at trial, as “Federal Rules make
clear that live testimony is important—with no exceptions made for doctors or for bench
trials. The increased cost to Plaintiff is also not an exceptional circumstance.”). Now, the
motion is DENIED.
DONE and ORDERED in Orlando, Florida on May 29, 2019.

Copies furnished to Counsel of Record

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