Kelly on Malpractice

In medical malpractice cases, we often take depositions of health care providers as fact witnesses. Whether the depositions are admissible is particularly important in a hospital liability action where the witness is a nurse or physician who leaves the state. We face this situation frequently in cases against Vanderbilt University Medical Center. We are fortunate to have a good working relationship with Vanderbilt’s fine counsel to resolve this issue before trial. But, what is the law on this? What happens if the healthcare provider is “available” when deposed but “unavailable” at trial. In DePasquale v. Chamberlain, 2008 WL 2743705 (Tenn.Ct.App.), the appellate court answered this question directly. DePasquale involved the breach of a settlement agreement arising out of a employment contract in Chattanooga. One of the key witnesses was a nurse who was “available” when deposed but “unavailable” at trial. The defendants claimed that the trial court erred when it admitted the deposition of the nurse, who had moved to San Diego before the trial. The defendants argued that because the nurse’s deposition was taken in Chattanooga before she moved to San Diego, she was not more than 100 miles from Chattanooga at the time the deposition was taken; therefore, the deposition was inadmissible because the nurse was not “unavailable.” The plaintiff disagreed, arguing that when determining if a witness is “unavailable” because that witness is more than 100 miles away, the trial court must look to whether the witness is more than 100 miles away at the time of trial, not at the time the deposition is taken.
In order to resolve this issue, the appellate court looked to TENN. R. CIV. P. 32.01 and TENN. R. EVID. 804(a)(5) and (6). These rules must be read in tandem:

TENN. R. CIV. P. 32.01. Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Tennessee Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof in accordance with any of the following provisions:

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(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a). But depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at trial except to impeach in accordance with the provisions of Rule 32.01(1).

TENN. R. EVID. 804. Hearsay exceptions; declarant unavailable.
(a) Definition of Unavailability. Unavailability of a witness includes situations in which the declarant–
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is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process; or for depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing.

Rule 804(a)(6) provides that a deposed witness who is more than 100 miles from the court house at the time of trial qualifies as an unavailable declarant. Similarly, in 94th Aero Squadron of Memphis, Inc. v. Memphis-Shelby County Airport, 169 S.W.3d 627, 642 (Tenn.Ct.App.2004) the Court of Appeals determined that the deponent clearly met the TENN. R. EVID. 804(a)(6) standard of “unavailability” for hen the deponent resided in California. In light of the foregoing, the appellate court conclude that the trial court correctly determined that the nurse was “unavailable.” Therefore, her deposition was admissible.
The DePasquale case belongs in your trial tool box. You may need it.

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