Hauser v. Powell
MEMORANDUM OPINION AND ORDER re: Use of Dr. Herman's Deposition at Trial. Signed by Magistrate Judge J. Mark Coulson on 9/15/2022. (ols, Deputy Clerk)
Case 1:17-cv-03844-JMC Document 115 Filed 09/15/22 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Mark Powell, et al,
Civil Case No. 17-cv-3844-JMC
MEMORANDUM OPINION AND ORDER REGARDING
USE OF DR. HERMAN’S DEPOSITION AT TRIAL
During the pretrial conference in this matter, Defendant Powell raised the issue of whether
Plaintiff would be permitted to read from the deposition of Massachusetts physician Dr. Seth
Herman, one of Plaintiff’s treating neurologists who was also designated by Plaintiff as an expert
witness, in lieu of calling him as a live witness. At the Court’s request, Defendant Powell
submitted a position statement arguing for the exclusion of such deposition testimony. (ECF No.
94). Plaintiff also submitted her own position statement in response. (ECF No. 97).
Defendant Powell acknowledges that Rule 32(a)(4) allows a party to use a deposition for
any purposes under circumstances such as this where the opposing party had an opportunity to
participate in the deposition and the deponent is more than 100 miles away from the courthouse so
as to be beyond subpoena power for trial appearance purposes, absent the sponsoring party’s
“procurement” of the witnesses’ absence. Fed. R. Civ. P. 32(a)(4)(B). Defendant Powell also
acknowledges that Tatman v. Collins, 938 F.2d 509 (4th Cir. 1991) would appear to support use of
the deposition under similar circumstances. However, Defendant Powell attempts to distinguish
the present case from Tatman on two grounds: (1) Dr. Herman was designated as an expert, and
Case 1:17-cv-03844-JMC Document 115 Filed 09/15/22 Page 2 of 2
(2) because Defendant Powell’s deposition of Dr. Herman was for discovery purposes, it was more
open-ended and solicitous than counsel’s cross examination at trial would be. As to that latter
point, Defendant Powell suggests that deposition excerpts under such conditions give undue
weight to Dr. Herman’s opinions since those opinions were elicited by Defense Counsel.
The Court acknowledges Defendant Powell’s concerns, which echo similar concerns by
some legal scholars. See, e.g., Steven D. Parman, Twisting the Purposes of Discovery: Expert
Witnesses and the Deposition Dilemma, VAND. L. REV., November 1983, at 1616. However, as
Plaintiff points out, Rule 32(a) does not distinguish between expert and other depositions, or
whether the purpose of the deposition was for discovery or for use of trial. Further, Tatman
reinforced that interpretation despite similar arguments from the opposing party in that case both
as to the type and purposes of the proffered deposition. Tatman, 938 F.2d at 510-511; see also
Holman v. Greyhound Lines, Inc., et al., No. 21-112-BAH, 2022 WL 1720152, at 7 (D. Md. May
To the extent that Defendant Powell is concerned that the deposition excerpts will be
presented out of their appropriate context, Rule 32(a)(6) provides the opportunity to introduce
other portions as necessary. Therefore, the Court will permit the use of Dr. Herman’s deposition
testimony, and Defendants will have the opportunity to introduce other portions of that deposition
testimony as necessary.
Date: September 15, 2022
J. Mark Coulson
United States Magistrate Judge
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