PRESCOTT v. R&L CARRIERS, INC. et al
Filing
276
MEMORANDUM OPINION AND ORDER OF COURT denying as moot 219 Motion in Limine to Read the Deposition Testimony of William M. Prescott at Trial; granting 239 Motion in Limine to Read the Deposition Testimony of William M. Prescott at Trial, subject to further rulings by the Court, and as more fully stated in said Memorandum Opinion and Order of Court. Signed by Judge Kim R. Gibson on 1/12/2016. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARBARA A. BENNETT, Executrix of the
Estate of WILLIAM M. PRESCOTT,
)
)
)
Plaintiff,
)
v.
)
)
R&L TRANSFER, INC., GREENWOOD
)
MOTOR LINES d/b/a R&L CARRIERS,
)
and R&L CARRIERS SHARED SERVICES, )
LLC,
)
)
Defendants.
)
Civil Action No. 3:11-203
Judge Kim R. Gibson
MEMORANDUM OPINION AND ORDER OF COURT
I.
Introduction
This matter comes before the Court upon two pretrial motions: (1) Plaintiff’s
motion in limine to read the deposition testimony of William M. Prescott at trial (ECF No.
219) and (2) Plaintiff’s renewed motion in limine to read the deposition testimony of
William M. Prescott at trial (ECF No. 239). Plaintiff has filed exhibits and a sur-reply in
support of her motions, (see ECF Nos. 220, 224), and Defendants R&L Transfer, Inc.,
Greenwood Motor Lines d/b/a R&L Carriers, and R&L Carriers Shared Services LLC
(collectively, “Defendants” or “R&L”) have filed responses to Plaintiff’s motions, (see ECF
Nos. 223, 252). The pretrial motions are now ripe for disposition. For the reasons that
follow, Plaintiff’s first motion in limine to read the deposition testimony of William M.
Prescott at trial will be denied as moot, and Plaintiff’s renewed motion in limine to read
the deposition testimony of William M. Prescott at trial will be granted, subject to further
rulings by the Court.
II.
Jurisdiction and Venue
The Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1332 and
28 U.S.C. § 1441. Venue is proper under 28 U.S.C. § 1391.
III.
Background
In July 2009, William M. Prescott was working as a self-employed independent
truck driver for FedEx Ground. (ECF No. 99-3 at 70.) Prescott’s daily route required him
to pull two twin-trailers (also known as “twin pups”) along a stretch of I-80 between the
FedEx terminal in Lewisbury, Pennsylvania, and a turn-around point in Emlenton,
Pennsylvania. (Id. at 70-71, 74-75.) Prescott would switch trailers with another driver in
Emlenton and return home along the same route. (Id. at 71.)
At approximately 12:35 a.m. on the night of July 14, 2009, Prescott was driving his
standard route west on I-80 towards Emlenton. (ECF No. 98-1 at 127, 133, 137.) Clark
Mead (“Mead”), a driver for R&L, was operating a green R&L truck in the immediate
vicinity of Prescott’s vehicle. (ECF No. 99-8; ECF No. 99-18.) Two other commercial
drivers, Stephen Page (“Page”) and David Desrosiers (“Desrosiers”), were traveling west
on I-80 some distance behind Mead and Prescott. (ECF No. 99-1 at 10-11; ECF No. 99-2 at
7-8.)
According to Prescott, he was driving at a speed of approximately sixty or sixtyfive miles per hour in the right-hand lane when he noticed a green tractor with white
trailers (subsequently identified as the vehicle driven by Mead) approaching on the left in
an attempt to pass. (ECF No. 98-1 at 135-36.) Prescott testified at his deposition that the
2
green truck began to merge back into the right lane before it had completely cleared
Prescott’s vehicle, forcing Prescott off the highway. (Id. at 136.) Prescott hit his head and
lost consciousness as he left the road, and he has no other recollection of the events of that
night. (Id. at 136-37; ECF No. 99-3 at 17-20.)
Immediately prior to the accident, Page and Desrosiers were driving in tandem
approximately one half of a mile behind Mead and Prescott. (ECF No. 99-1 at 15-16, 19;
ECF No. 99-2 at 17.) Page, traveling in the lead, testified that he and Desrosiers had been
following the two vehicles for several miles and were slowly gaining ground. (ECF No.
99-1 at 16.) Page observed that the trucks belonging to Prescott and Mead were traveling
with one in front of the other, rather than side by side, although he could not tell which
lane they were in. (Id. at 18-19.) Neither Page nor Desrosiers ever saw Mead’s truck
change lanes or attempt a passing maneuver, although each acknowledged losing visual
contact with the vehicles on occasion due to the twists and turns of the road. (Id. at 24-28;
ECF No. 99-2 at 85, 88, 91.)
While approaching the site of the accident, Page had a clear view of Mead’s
vehicle. (ECF No. 99-1 at 27-29, 75-76, 84; ECF No. 99-16 at 51-53, 95-96.) Page saw Mead
suddenly engage the hazard lights on his truck and slowly pull off to the right side of I-80.
(ECF No. 99-1 at 27-29, 75-76, 84; ECF No. 99-16 at 101-02.) Page testified that he had a
direct line of sight to Mead’s vehicle both immediately before and after Mead engaged his
hazard lights. (ECF No. 99-1 at 27-29, 75-76, 84; ECF No. 99-16 at 51-53, 95-96.) Page
suspected that Mead’s truck had blown a tire and prepared to pull over to offer assistance.
(ECF No. 99-1 at 74.) As he pulled over, Page observed Prescott’s truck in flames at the
3
bottom of the embankment. (Id. at 29-30, 89.) Page had not seen Prescott’s vehicle leave
the road and had assumed that the truck in front of Mead had simply continued on along
I-80. (Id. at 74.)
Page parked his truck several hundred yards in front of Mead’s R&L truck and
jumped down the embankment to render assistance to Prescott. (Id. at 34-36.) Page
opened the door of Prescott’s vehicle and removed Prescott from the cab. (Id. at 36-37.)
He then called to Desrosiers and Mead for assistance, and the three men pulled Prescott
away from his burning vehicle. (Id. at 38-40, 93-94.) Page observed that Prescott had
suffered severe burns and injuries all over his face and arms.
(Id. at 37-39.)
After
removing Prescott from his vehicle, Page did not leave Prescott’s side at any point until
medical personnel arrived. (Id. at 97.)
While waiting for medical help to arrive, Prescott slipped in and out of
consciousness. (Id. at 95, 98-100.) Page testified that it “took him a little bit, and then he
seemed to come out of it and asked: what’s happening? What’s going on? And – and he
cried about his truck, and – and we talked to him.” (Id. at 40-41.) Page asked Prescott
how the accident had occurred, and Prescott said he did not know what had happened.
(Id. at 100.) Emergency medical responders similarly indicated that Prescott expressed no
recollection as to what had happened before or after the accident. (ECF No. 99-6 at 36-37,
47; ECF No. 99-7 at 1; ECF No. 99-32 at 1.) However, Desrosiers testified that Prescott
blurted out the following statement shortly after being pulled from his truck: “I was cut
off, I was cut off. My tractor, my tractor was cut off.” (ECF No. 99-2 at 23-24.)
4
At some point after Prescott was removed from his vehicle, Desrosiers instructed
Mead to move his truck to make room for emergency responders. (Id. at 16.) Mead reentered his vehicle and left the scene, continuing his route along I-80. (Id. at 26-27; ECF
No. 99-18.) Neither Page nor Desrosiers saw Mead leave. (ECF No. 99-1 at 108-09; ECF
No. 99-2 at 78, 109.)
Two Pennsylvania State Troopers eventually arrived on the scene. (ECF No. 99-1
at 44-45; ECF No. 99-2 at 30.) Trooper Richard L. Magnuson conducted an investigation
and observed that there was no evidence that Prescott’s vehicle braked suddenly or took
any evasive action. (ECF No. 99-22 at 83.) Trooper Magnuson also noted that Prescott’s
vehicle had left the road near the crest of a hill where the road curved away to the left.
(Id. at 48.) Based on this evidence, Trooper Magnuson concluded that Prescott had been
involved in a single-vehicle accident and cited Prescott for driving too fast for conditions
in violation of 75 Pa.C.S. § 3361. (Id. at 76-77; 85-87; ECF No. 99-4.) Although Trooper
Magnuson took statements from Page and Desrosiers, neither of them mentioned
anything about Prescott having been cut off by Mead. 1 (ECF No. 99-1 at 44-45; ECF No.
99-2 at 28, 30, 33-35.) Trooper Magnuson could not obtain a statement from Mead because
he had already left the scene. 2
After the accident, Prescott was hospitalized until November 25, 2009. (ECF No.
99-35; ECF No. 99-36; ECF No. 99-40; ECF No. 99-41.) His daughter, Barbara Bennett
(“Bennett” or “Plaintiff”), testified that Prescott woke up one day from a “four month
Desrosiers also failed to mention Prescott’s purported dying declaration when interviewed by a
forensic investigator approximately one year later. (ECF No. 99-19.)
1
2
Mead passed away from an illness before his deposition could be taken.
5
coma” and spontaneously stated, “Barbara, don’t worry about your driving, worry about
that man in the green truck because he sucked me up and pushed me off the road.” (ECF
No. 103-22 at 4.) A friend of Bennett’s, Andrea Wise, testified that she overheard the same
statement from Prescott. (ECF No. 98-5 at 47.) Despite Bennett’s testimony that Prescott
was in a coma for four months, medical records and posts from a blog maintained by
Prescott’s family suggest that Prescott was frequently conscious and alert throughout his
hospitalization. (ECF No. 99-36; ECF No. 99-37.)
On August 19, 2011, Prescott initiated the instant action by filing a complaint in
the Court of Common Pleas of Clearfield County, Pennsylvania. (ECF No. 1-2.) The
complaint was removed to this Court on September 8, 2011. (ECF No. 1.) The discovery
deadline in this case ended on January 6, 2014, and the depositions of all expert witnesses
were to be completed by April 2, 2014. (ECF No. 77.) On September 24, 2015, Prescott’s
counsel filed a statement noting Prescott’s death. (ECF No. 227.) Prescott’s counsel filed a
motion to substitute Bennett, the Executrix of Prescott’s estate, as Plaintiff, (ECF No. 228),
which the Court granted, (ECF No. 231). Trial in this matter is currently scheduled to
commence on January 19, 2016. (ECF No. 238.)
IV.
Applicable Law
Under Rule 402 of the Federal Rules of Evidence, relevant evidence is admissible
unless the Constitution, a federal statute, the Federal Rules of Evidence, or rules
prescribed by the Supreme Court provide otherwise. FED. R. EVID. 402. Rule 401 provides
that evidence is relevant if “(a) it has any tendency to make a fact more or less probable
6
than it would be without the evidence; and (b) the fact is of consequence in determining
the action.” FED. R. EVID. 401. Although evidence must be relevant to be admissible, Rule
401 does not set a high standard for admissibility. Hurley v. Atl. City Police Dep’t, 174 F. 3d
95, 109–10 (3d Cir. 1999) (citation omitted). The Third Circuit has explained:
[R]elevancy is not an inherent characteristic of any item of evidence but
exists only as a relation between an item of evidence and a matter
properly provable in the case. Because the rule makes evidence relevant
if it has any tendency to prove a consequential fact, it follows that
evidence is irrelevant only when it has no tendency to prove the fact.
Blancha v. Raymark Indus., 972 F. 2d 507, 514 (3d Cir. 1992) (emphasis in original) (citations
and quotations omitted).
Under Rule 403, even relevant evidence is inadmissible “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” FED. R. EVID. 403. Rule 403 mandates a balancing test,
“requiring sensitivity on the part of the trial court to the subtleties of the particular
situation.” United States v. Vosburgh, 602 F. 3d 512, 537 (3d Cir. 2010). Relevant here, the
advisory notes to Rule 403 state that “unfair prejudice” means an “undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.” FED. R. EVID. 403 advisory committee’s note; see Dollar v. Long Mfg., N.C., Inc., 561 F.
2d 613, 618 (5th Cir. 1977) (“Of course, ‘unfair prejudice’ as used in Rule 403 is not to be
equated with testimony simply adverse to the opposing party. Virtually all evidence is
prejudicial or it isn’t material. The prejudice must be ‘unfair.’”).
7
Federal Rule of Civil Procedure 32 governs the use of depositions in court
proceedings:
(a) Using Depositions.
(1) In General. At a hearing or trial, all or part of a deposition may
be used against a party on these conditions:
(A) the party was present or represented at the taking of
the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the
Federal Rules of Evidence if the deponent were present
and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
*
*
*
(4) Unavailable Witness. A party may use for any purpose the
deposition of a witness, whether or not a party, if the court finds:
(A) that the witness is dead[.]
FED. R. CIV. P. 32(a)(1)(A)-(C), (a)(4)(A). Rule 32 further provides that “[i]f a party offers
in evidence only part of a deposition, an adverse party may require the offeror to
introduce other parts that in fairness should be considered with the part introduced, and
any party may itself introduce any other parts.” FED. R. CIV. P. 32(a)(6).
V.
Discussion
As discussed above, Prescott’s counsel filed a statement noting Prescott’s death,
and Bennett has been substituted as Plaintiff in this matter. (See ECF Nos. 227, 228, 231.)
Following Prescott’s death, the Court directed Plaintiff to address these changed
circumstances in relation to her motion in limine to permit Prescott’s deposition testimony
to be read during trial. (ECF No. 237 at 2.) Because Plaintiff has now renewed her motion
in limine, (ECF No. 239), the Court will deny as moot Plaintiff’s first motion in limine,
(ECF No. 219). However, the Court will still consider the parties’ briefs and exhibits, to
8
the extent that they are relevant, that were filed in relation to Plaintiff’s first motion. (See
ECF Nos. 220, 223, 224.)
Initially, the Court notes that, in relation to Plaintiff’s motion in limine to be
permitted to read Prescott’s deposition testimony, Defendants filed a motion to compel
the deposition of Dr. Joseph M. Kosakoski, Jr. (ECF No. 241.) Specifically, Defendants
argued that they should be permitted to question Dr. Kosakoski about Prescott’s mental
condition because prior to Prescott’s March 19, 2013, deposition, Dr. Kosakoski diagnosed
him with frontal lobe syndrome, traumatic brain injury, cognitive dysfunction,
oppositional defiant disorder, disruptive behavior disorder, daily temperamental
extremes, low frustration tolerance, and an increased risk of developing dementia. (Id. ¶
42.) Defendants also noted that Prescott fell four months before his deposition and again
just two days before his deposition. (Id. ¶¶ 43-44.) The Court granted Defendants’
motion to compel the deposition of Dr. Kosakoski, ordering the parties to complete the
deposition by January 8, 2016, and ordering Defendants to file a transcript of the
deposition by January 13, 2016, so that the Court may decide Plaintiff’s motion in limine
to be permitted to read Prescott’s deposition testimony before trial commences on January
19, 2016. (ECF No. 249 at 13.)
In the instant motion in limine, Plaintiff argues that she should be permitted to
read Prescott’s deposition at trial because Prescott was competent during his March 19,
2013, deposition. (ECF No. 239 at 2-3.) Specifically, Plaintiff includes excerpts from the
deposition and asserts that Prescott stated that he did not have any problems recollecting
events, did not have any short-term memory loss, was aware of the 2009 accident, and
9
was not confused, disoriented, or incoherent. (Id. at 2, 5.) Plaintiff also explains that
Prescott underwent an Independent Medical Examination with Defendants’ expert, Dr.
Richard Bennett, on June 26, 2013. (Id. at 3.) After Dr. Bennett conducted a physical
examination of Prescott, interviewed Prescott, and reviewed “voluminous records” that
included forty-eight records and Prescott’s deposition transcript, he concluded that
Prescott “appears to be competent at this time.” (Id. (emphasis omitted).)
In response, Defendants argue that Plaintiff’s counsel denied them of the right to
cross-examine Prescott during the deposition. (ECF No. 252 at 2, 4.) Defendants claim
that Plaintiff’s counsel objected to leading questions because “he too recognized the
mental state of his client.” (Id. at 3.) Defendants also note that Plaintiff’s counsel stated
that Prescott had a “TBI [traumatic brain injury]” during the deposition, asserting that
Plaintiff’s counsel’s position was that the injury impaired “Prescott’s cognitive ability to
recall basic facts and answer basic questions.” (Id. (emphasis omitted).) Defendants
contend that Prescott’s answers during the deposition were nonresponsive, confused, and
coached by his counsel. (Id. at 3-4.) Because Defendants did not have an opportunity to
cross-examine Prescott, they argue that allowing Plaintiff to read “isolated, self-serving
portions” of the deposition “would be overwhelmingly prejudicial” and “would also
confuse and mislead the jury about the incident and the severity of [Prescott’s]
impairments and his ability to understand and recollect events.” (Id. at 4-5.)
“It is well settled that the competency of a witness is presumed and the burden to
show incompetency falls upon the party asserting it.” Commonwealth v. Hart, 460 A.2d
745, 747 (Pa. 1983); see also Commonwealth v. Dowling, 883 A.2d 570, 577 (Pa. 2005). “At
10
law, every person is competent to be a witness unless otherwise provided by statute or by
the Rules of Evidence.” Gibson v. Workers’ Comp. Appeal Bd. (Armco Stainless & Alloy
Prods.), 861 A.2d 938, 945 (Pa. 2004). “The law commits much to the discretion of the trial
judge in determining the question of the competency of a witness, where there is no
statutory definition of competency.” Piepke v. Philadelphia & R. R. Co., 89 A. 124, 125 (Pa.
1913); see also Commonwealth v. Hart, 460 A.2d at 747 (“The determination of competency is
a matter for the sound discretion of the trial court, which will not be disturbed absent a
clear abuse of that discretion.”).
Here, Defendants assert that Prescott was so incompetent during his deposition
that it cannot be read during trial. The Court has reviewed the transcripts of Prescott’s
deposition and Dr. Kosakoski’s deposition. Regarding Prescott’s deposition, Defendants
only cite to the following example of Prescott’s “nonresponsive and confused” testimony:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Did you ever tell [Plaintiff] why you had your accident?
Why?
Yes.
I didn’t have it because of a cause. I didn’t want it.
Okay.
So why it [the accident] happened?
Yes.
I don’t know.
You don’t know how the accident occurred, is that fair to say?
Right.
(ECF No. 252 at 3-4 (emphasis omitted).) The Court notes that Prescott appeared to be
confused when he testified that his roundtrip mileage between Lewisbury, Pennsylvania,
and Emlenton, Pennsylvania, was 1,960 miles. (ECF No. 239 at 34.) He later clarified that
the roundtrip mileage was 190 miles. (Id. at 36.) Although Prescott may have exhibited
11
some confusion during his four-hour deposition, and although Prescott was diagnosed
with frontal lobe syndrome, traumatic brain injury, cognitive dysfunction, oppositional
defiant disorder, disruptive behavior disorder, daily temperamental extremes, low
frustration tolerance, and an increased risk of developing dementia before his deposition,
the Court cannot conclude that he was incompetent at his deposition. See, e.g., Jackson v.
United Airlines, Inc., No. 3:08-CV-182, 2009 U.S. Dist. LEXIS 51181, at *10-11 (E.D. Va. June
17, 2009) (“Even though [the deponent] may have been diagnosed with the onset of
dementia, and there are portions of her deposition testimony that are not coherent, or at
least demonstrate confusion and misunderstanding, e.g., it is not the year 1990, not only
must the Court presume her competency, her testimony concerning the salient events of
the specific incident at the airport does not exhibit such a level of confusion, let alone
mental incompetency, to preclude its use at trial, as a matter of law, thereby foreclosing
consideration by the jury.”) (internal citations omitted).
Defendants provide examples of impeachment evidence that they were unable to
use during Prescott’s deposition and argue that, without this evidence, the jury will be
prevented from properly assessing Prescott’s testimony.
(ECF No. 252 at 5-7.)
Specifically, Defendants state that “a small portion” of Prescott’s testimony “appears to be
a concise, succinct recollection of the accident” but was actually “the product of postaccident information he obtained from [Plaintiff] and others.” (Id. at 5-6.) Defendants
argue that they will be prejudiced by their inability to confront Prescott with: (1) his
inability to recall which lane he was in when the accident occurred; (2) his admission that
he was amnestic to the events before and after the accident; (3) his mental state at the time
12
of the deposition; (4) his admission to Page that he did not know why he went off the
road; (5) his hiring of an investigator; (6) his failure to report to the police that an R&L
vehicle was involved in the accident; (7) internet postings stating that Prescott had no
recollection of what occurred the night of the accident; (8) Ron Rader’s statements that
Prescott did not know what happened at the accident; and (9) FedEx’s reports stating that
the accident was a single-vehicle accident. (Id. at 6-7.)
In support of their argument that they will be prejudiced by the admission of
Prescott’s deposition testimony, Defendants cite to a Seventh Circuit case, Griffin v. Foley,
542 F.3d 209 (7th Cir. 2008), for the proposition that there is “a distinction between
discovery and trial depositions.” (Id. at 8.) Within the Third Circuit, however, it is well
settled that “Rule 32 makes no distinction between ‘discovery depositions’ and ‘trial
depositions.’” Vandenbraak v. Alfieri, No. 01-CV-482, 2005 U.S. Dist. LEXIS 9882, at *17 (D.
Del. May 25, 2005) (permitting deposition testimony to be read because “[i]f the
defendants chose not to ask questions, they must live with that choice. They cannot now
be heard to complain about living with the record they had a hand in creating.”); see also
Weiss v. First Unum Life Ins., No. 02-CV-4249, 2010 U.S. Dist. LEXIS 24097 (D.N.J. Mar. 15,
2010) (“[T]he Federal Rules of Civil Procedure draw no distinction between discovery
depositions and depositions taken for use at trial.”); Wheeler Peak, LLC v. L.C.I.2, Inc., No.
07-CV-1117, 2010 U.S. Dist. LEXIS 9251, at *8 (D.N.M. Jan. 26, 2010) (“The Federal Rules of
Civil Procedure do not use the term ‘trial deposition.’ While practicing lawyers use the
term, the Federal Rules do not distinguish between ‘trial’ depositions and deposition for
other purposes.”). Moreover, the nine items that Defendants include in support of their
13
argument that they will be prejudiced by their inability to confront Prescott, (see ECF No.
252 at 6-7), are facts which can be offered through other witnesses, if deemed admissible
by the Court. Thus, any prejudice that Defendants may suffer is significantly reduced.
Regarding Dr. Kosakoski’s deposition, the Court finds that Dr. Kosakoski’s
testimony does not support Defendants’ argument that Prescott was so incompetent
during his deposition that it cannot be read to the jury. Specifically, Dr. Kosakoski stated
that Prescott exhibited delirium-like symptoms a few times in 2009 and 2010 as a result of
exacerbation of his chronic obstructive pulmonary disease (COPD) and that delirium
occurs from acute metabolic issues, hypoxemia, COPD flare-up, and metabolic acid base
issues. (ECF No. 272 at 52, 55.) Dr. Kosakoski testified that Prescott had both short-term
and long-term memory in 2012 and that he did not experience Prescott’s memory deficits
until 2014 and 2015. (Id. at 56-57.) Dr. Kosakoski believed that Prescott’s memory issues
from 2009 through 2012 were related to a gradual but progressive age-related memory
decline. (Id. at 57, 66, 78-79) Dr. Kosakoski also stated that Prescott’s confusion and major
dysfunctions during this time were as a result of Prescott having a COPD flare-up or
stopping his medications. (Id. at 66.) As of 2012, Dr. Kosakoski believed that there was an
increased likelihood that Prescott would experience progression of cognitive dysfunction
and an increased risk of developing dementia, which could accelerate as early as one year
or as late as five years. (Id. at 68-70.) In 2014 and 2015, Prescott had taken “a significant
turn for the worse and had almost an exponential decline” when his condition became
“fixed and progressive.” (Id. at 70, 75.) Dr. Kosakoski therefore opined that Prescott
would be unable to participate in his trial. (Id. at 70-74.)
14
In discussing an incident in 2009 when Prescott called his granddaughter his cat
and attempted to pet her, Dr. Kosakoski testified that Prescott’s behavior was a result of
neuronal dysfunction, which improved in 2010.
(Id. at 80-82.)
When a
neuropsychological status was administered in 2009, Prescott’s immediate memory and
delayed memory were among the lowest classifications; Dr. Kosakoski could not recall
whether the test was conducted again to identify any improvements in Prescott’s
condition. (Id. at 101-02.) He noted that he suspected that Prescott was not suffering from
COPD exacerbation during the testing and also stated that patients can gain substantial
recovery of faculties within ten, twelve, or fourteen months after a head injury. (Id. at 13940.)
In discussing incidents in 2010 when Prescott hit Plaintiff with a stapler and when
Prescott stated that Plaintiff threw him into the fireplace, Dr. Kosakoski noted that
Prescott had stopped taking his medication and testified that Prescott had evidence of
disinhibition from his frontal lobe syndrome. (Id. at 115, 118-20, 124.) In, 2011, Dr.
Kosakoski diagnosed Prescott with oppositional defiant disorder and noted that he was
not taking his medication on some occasions. (Id. at 127-29.) In discussing incidences in
2012 when Prescott had increased confusion, asked about his truck that he no longer
drove, and asked for his brother who had died ten years earlier, Dr. Kosakoski stated that
these incidents were a result of a COPD infection and hypozemia. (Id. at 131-35.) Dr.
Kosakoski noted that Prescott fell in 2012 and that a CT of his brain showed no acute
bleed or edema, making it unlikely that the fall triggered memory problems. (Id. at 13638.) He stated that Prescott’s cognitive deficits and severe mental disability from 2009
15
until 2012 were in conjunction with Prescott discontinuing his medication and suffering
from COPD exacerbation. (Id. at 138-39.) Dr. Kosakoski testified that, as of 2012, Prescott
appeared to be competent to him. (Id. at 146-47.)
Regarding Prescott’s March 19, 2013, deposition, Dr. Kosakoski stated that he did
not read the transcript. (Id. at 147.) When questioned regarding Prescott’s statement that
his roundtrip mileage between Lewisbury, Pennsylvania, and Emlenton, Pennsylvania,
was 1,960 miles, Dr. Kosakoski did not know whether Prescott’s statement was the
product of his traumatic brain injury and believed that it was an impulsive response. (Id.
at 148-51, 198.) Dr. Kosakoski opined that Prescott incorrectly stated that he did not recall
having any health issues before 2009 because of his frustration tolerance and agreed that it
may have been a product of his short-term and long-term memory loss. (Id. at 151-53.) In
discussing a fall that Prescott had two days before his deposition, Dr. Kosakoski stated
that progress notes indicated that Prescott had a COPD infection on March 21, 2013. (Id.
at 153-57.) Dr. Kosakoski testified that he has never been involved in having someone
declared incompetent and stated that Prescott appeared to know the difference between
right and wrong at the deposition. (Id. at 199.)
Based upon its review of Prescott’s deposition and Dr. Kosakoski’s deposition, the
Court cannot conclude that Prescott was incompetent during his deposition and will
therefore permit Plaintiff to read Prescott’s deposition testimony during the trial, subject
to further rulings by the Court.
See, e.g., Nat’l Sign & Signal Co. v. Am. Bright
Optoelectronics Corp., No. 06-CV-279, 2008 U.S. Dist. LEXIS 60959, at *1-2 (W.D. Mich. Feb.
22, 2008) (admitting the deposition testimony of the plaintiff’s witness because he was
16
dead and the defendant deposed him); Garcia v. Estate of Arribas, No. 04-CV-1159, 2006
U.S. Dist. LEXIS 16866 (D. Kan. Mar. 31, 2006) (“Rule 32(a)(3) applies to allow any party to
use the deposition for any purpose because the witness . . . is dead.”); Frank S. Sinkwich,
Inc. v. Texaco Refining & Marketing, Inc., 120 F.R.D. 540, 541 (M.D. Ga. 1988) (explaining
that “[i]t is clear that the deposition of a party may be used under clause (A) of Rule 32 (a)
(3) if the party is dead”).
Regarding Defendants’ concern that they will be prejudiced when the jury “hear[s]
a short sound-bite of [Prescott’s] deposition,” (ECF No. 252 at 7), the Court notes that
Defendants may also designate portions of the deposition to be read to the jury. See FED.
R. CIV. P. 32(a)(6) (“If a party offers in evidence only part of a deposition, an adverse party
may require the offeror to introduce other parts that in fairness should be considered with
the part introduced, and any party may itself introduce any other parts.”). Additionally,
“[w]hen a deposition is used at trial pursuant to Rule 32(a), parties may make objections
to portions of the deposition's admissibility.” Wise v. Wash. County, No. 10-CV-1677, 2014
U.S. Dist. LEXIS 29267, at *6 (W.D. Pa. Mar. 7, 2014) (citing FED. R. CIV. P. 32(b)). The
parties “are not limited to the objections raised during the deposition.” Id. (citing 8A
Wright & Miller, Federal Practice and Procedure § 2151, 671-72 (3d ed. 2010)). The Court will
therefore order Plaintiff to file her designations of Prescott’s and Dr. Kosakoski’s
deposition testimony, if any, by January 13, 2016. Defendants shall file their designations
of Prescott’s and Dr. Kosakoski’s deposition testimony, if any, by January 14, 2016. The
parties shall file their objections to the designations of Prescott’s and Dr. Kosakoski’s
17
deposition testimony, if any, by January 15, 2016, so that the Court may rule upon them
before trial begins on January 19, 2016.
V.
Conclusion
For the reasons set forth above, Plaintiff’s first motion in limine to read the
deposition testimony of William M. Prescott at trial (ECF No. 219) will be denied as moot.
Plaintiff’s renewed motion in limine to read the deposition testimony of William M.
Prescott at trial (ECF No. 239) will be granted, subject to further rulings by the Court.
Plaintiff shall file her designations of William M. Prescott’s and Dr. Joseph M. Kosakoski,
Jr.’s deposition testimony, if any, by January 13, 2016.
Defendants shall file their
designations of William M. Prescott’s and Dr. Joseph M. Kosakoski, Jr.’s deposition
testimony, if any, by January 14, 2016.
The parties shall file their objections to the
designations of William M. Prescott’s and Dr. Joseph M. Kosakoski, Jr.’s deposition
testimony, if any, by January 15, 2016.
An appropriate order follows.
.
18
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM PRESCOTT,
)
)
Plaintiff,
Civil Action No. 3:11-203
)
)
~
Judge Kim R. Gibson
)
R&L TRANSFER, INC., GREENWOOD
MOTOR LINES d/b/a R&L CARRIERS,
and R&L CARRIERS SHARED SERVICES,
LLC,
)
)
)
)
)
Defendants.
)
ORDER
And now, this 12th day of January, 2016, IT IS HEREBY ORDERED as follows:
1.
Plaintiff's motion in limine to read the deposition testimony of William M. Prescott
at trial (ECF No. 219) is DENIED as moot.
2. Plaintiff's motion in limine to read the deposition testimony of William M. Prescott
at trial (ECF No. 239) motion is GRANTED, subject to further rulings by the
Court.
a. Plaintiff shall file her designations of William M. Prescott's and Dr. Joseph
M. Kosakoski, Jr.'s deposition testimony, if any, by January 13, 2016.
b. Defendants shall file their designations of William M. Prescott's and Dr.
Joseph M. Kosakoski, Jr.'s deposition testimony, if any, by January 14, 2016.
c. The parties shall file their objections to the deposition designations, if any,
by January 15, 2016.
BY THE COURT:
~R
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
20
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