Whyte v. United States Postal Service

Filing 31

ORDER denying 25 Motion to Take Deposition for Use at Trial; terminating 29 Motion for Disclosure as this document is not a motion. Signed by Judge James I. Cohn on 3/21/12. (prd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-62112-CIV-COHN/Seltzer
DOREEN WHYTE,
Plaintiff,
vs.
UNITED STATES POSTAL SERVICE,
Defendant.
_________________________________/
ORDER DENYING AMENDED MOTION TO TAKE DEPOSITION FOR USE AT TRIAL
THIS CAUSE is before the Court on Plaintiff’s Amended Motion to Take
Deposition for Use at Trial [DE 25], Defendant’s Response [DE 27], and Plaintiff’s Reply
[DE 28]. The Court has carefully considered the motion, response, and reply, and is
otherwise fully advised in the premises.
Plaintiff filed this action against the United States Postal Service (“USPS”) for
claims of negligence under the Federal Tort Claims Act. Plaintiff alleges that she
tripped and fell over a plastic binder/tie owned and utilized by the USPS. Complaint,
¶ 7. Plaintiff underwent two wrist surgeries as a result of her fall. Plaintiff has moved to
use the deposition of Dr. Bernard Miot, Plaintiff’s treating surgeon, at trial. Defendant
opposes this motion.1
The Federal Rules of Civil Procedure govern the circumstances under which a
party may use a deposition in court proceedings. As Dr. Miot works within 100 miles of
the Fort Lauderdale Courthouse and is subject to subpoena, the only provision relevant

1

On March 8, 2012, the Court granted the portion of Plaintiff’s motion that
sought to take Dr. Miot’s deposition on April 17, 2012, after the discovery deadline [DE
26]. That portion of the motion was unopposed and sufficient cause was shown by
Plaintiff.

to this motion is Fed. R. Civ. P. 32(a)(4)(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.”
Plaintiff’s motion contends that “treating physicians are frequently deposed with or
without videotape and their testimony presented to the Court.” Motion at ¶ 14. Plaintiff
essentially argues that because this action involves a bench trial and Dr. Miot is a
doctor, it is in the interest of justice to allow Plaintiff to use his deposition at trial.
Defendant opposes the motion, citing to Allgeier v. U.S., 909 F.2d 869, 876 (6th
Cir. 1990), which explicitly rejected the argument that doctors are “automatically
unavailable” to testify at trial under the Federal Rules or in federal practice. The Sixth
Circuit concluded that the trial court abused its discretion in accepting this argument to
find the required “exceptional circumstances” to allow use of the deposition. However,
as Plaintiff notes in her reply, the Sixth Circuit also found no prejudice to defendant in
allowing the deposition. Defendant USPS also relies upon Bobrosky v. Vickers, 170
F.R.D. 411, 414-15 (W.D. Va 1997) (collecting published and unpublished physician
witness cases, some of which are in conflict),2 wherein the court held that because the
party offering the testimony failed to present any evidence or even asserted that the
doctors’ schedules or personal circumstances would preclude them from being able to
appear in court, “exceptional circumstances” were not met.
In this action, Plaintiff contends that because Dr. Miot’s fee for testifying at trial is
between $4,500 and $5,000 for only three hours, and because this is a non-jury trial,

2

Neither party cited to a case from the United States Court of Appeals for the
Eleventh Circuit, nor to any federal district court in Florida. This Court could not find
any such decisions in its own search.
2

that she has met the “exceptional circumstances” requirement in Fed. R. Civ. P.
32(a)(4)(E). Plaintiff has also offered to videotape Dr. Miot’s deposition. While the
Court agrees that “videotaped testimony prepared specifically for use at trial mitigates
the concerns militating against the use of depositions in lieu of live testimony,” Hague v.
Celebrity Cruises, 2001 WL 546519, *2 (S.D.N.Y. May 23, 2001),3 the 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.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Amended
Motion to Take Deposition for Use at Trial [DE 25] is hereby DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 21st day of March, 2012.

Copies provided to:
Counsel of record

3

The Court in Hague relied upon the fact that the party opposing the deposition
had previously agreed that the videotaped deposition would later be admissible at trial.
3