Sheetz et al v. Wal-Mart Stores, Inc. et al

Filing 113

MEMORANDUM (Order to follow as separate docket entry) re 75 First MOTION for Consideration to Declare Patricia Sheetz Unable to Testify at Trial filed by Richard H. Sheetz, Jr., Patricia A. Sheetz. Signed by Magistrate Judge Karoline Mehalchick on 3/28/2018. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA A. SHEETZ, et al.,
CIVIL ACTION NO. 4:15-CV-02210

Plaintiffs,

(MEHALCHICK, M.J.)

v.
WAL-MART STORES, INC., et al.,
Defendants.
MEMORANDUM

Before the Court is a motion to declare that Plaintiff Patricia A. Sheetz is incapable of
testifying at trial in this personal injury action. The motion, filed October 20, 2017, states that
due to Sheetz’s multiple impairments and deteriorating condition she would be unable to testify
and may not even be able to attend trial. (Doc. 75). In support, Plaintiffs provide a declaration
from Sheetz’s treating physician, Dr. Boris Gabinskiy, who opines that she would “not be able
to [withstand] court proceeding[s] due to mental instability and difficulties [coping] with stress.”
(Doc. 75-1). Plaintiffs state that the use of Sheetz’s deposition should be available to either party
as an alternative. (Doc. 75). The Defendants argue that Dr. Gabisnkiy’s “generic” statement is
insufficient to overcome the facts that Sheetz: chose to pursue this action and did so in this
particular venue; has never been declared incompetent, and; actively participated in all
proceedings up to the date of filing. (Doc. 80).
Both parties reiterated their respective positions at a conference call held on March 27,
2018. Plaintiffs’ counsel stated that Sheetz remains unable to testify, as her impairments
continue to require round-the-clock care from her husband and co-Plaintiff Richard Sheetz, and
that there are serious doubts as to her ability to attend any part of trial. Defense counsel

reiterated credibility and competency are not the same, and that the concern on Sheetz’s ability
to testify is about her credibility. While Defendant is correct in this assertion, the Court’s
concern is with infirmity rather than competence or credibility. No doctor has declared Sheetz
incompetent, but her treating physician has opined that she cannot medically testify at trial.
Under the Federal Rules of Civil Procedure and Federal Rules of Evidence, deposition
transcripts may be used at trial where a witness is unavailable due to infirmity, physical illness,
or mental illness. FED. R. EVID. 804(a)(4); FED. R. CIV. P. 32(a)(4)(C). Deposition testimony
may only be presented if the opposing party had the opportunity to conduct proper direct, cross,
or redirect examination. FED. R. EVID. 804(b)(1)(B); FED. R. CIV. P. 32(a)(1)(A). The burden is
on the party seeking to declare a witness unavailable by reason of infirmity or illness to provide
objective medical support for the assertion. See Complaint of Bankers Trust Co., 752 F.2d 874, 888
(3d Cir. 1984). The declaration of a medical professional will suffice and “[n]o more is
required.” Finzie v. Principi, 69 F. App’x 571, 573 (3d Cir. 2003) (not precedential).
The Court is not trained to offer medical judgment and must rely on the statements of
capable physicians. In considering a witness unavailable due to infirmity or illness, courts
should consider the severity and duration of an illness. United States v. McGowan, 590 F.3d 446,
455 (7th Cir. 2009). These same concerns govern the discretionary decision even when the
witness is a party. See Elsevier, Inc. v. Comprehensive Microfilm & Scanning Serv’s, Inc., No. 3:10CV-02513, 2013 WL 5797639, *2 (M.D. Pa. Oct. 28, 2013). While the medical opinion on
Sheetz’s ability to testify at trial is now five months old, the indisputably severe and chronic
nature of Sheetz’s impairments certainly warrants deference to the continued position of
unavailability. Credibility inferences that may arise on an in-person cross-examination do not

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outweigh the medical concerns that may also come from testimony. Elsevier, Inc., 2013 WL
5797639, at *2.
Further, the deposition testimony of Plaintiff Patricia Sheetz fits the exceptions allowing
for presentation of the transcripts in her place. Both parties not only had notice of the
deposition, but participated therein. 1 Under the circumstances, the Court finds that deposition
transcripts may be introduced under the applicable Federal Rules of Evidence and Civil
Procedure. Due to medical concerns, Plaintiff’s motion to declare that Patricia A. Sheetz is
incapable of testifying at trial is GRANTED.
An appropriate Order follows.

s/ Karoline Mehalchick

Dated: March 28, 2018

KAROLINE MEHALCHICK
United States Magistrate Judge

1

During the telephone conference where the motion was discussed, Plaintiff’s counsel
indicated that he did not conduct any questioning of the Plaintiff during the deposition.
However, the Court cannot find any prejudice in the usage of deposition transcripts given that
the party more harshly deprived of the opportunity to conduct questioning at trial was the
movants themselves, and given that the movant was present and able to question Plaintiff at the
deposition.
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