Virginia Lawyers Weekly

Although an elderly airline passenger who was not provided the requested wheelchair when she deplaned exhibited some confusion during her deposition in California, a Richmond U.S District Court declines to exclude the deposition on the ground of the passenger’s mental incompetency.

The passenger stated that after additional requests of airline personnel for wheelchair assistance, and waiting in the terminal for approximately 30 minutes before concluding no assistance was available, she proceeded on her own to the baggage claim area.

She further testified that she proceeded about 15 feet through the terminal before she slipped and fell. She suffered a broken shoulder. A flight attendant corroborated several aspects of plaintiff’s testimony. The passenger later exhibited early signs of dementia, and she passed away shortly after her deposition was taken in California. Her daughter was substituted as plaintiff, as administrator of her mother’s estate.

Defendants initially contend the deposition cannot be used at trial because of “judicial estoppel,” i.e., plaintiff’s counsel objected to decedent having to make herself available for discovery deposition in this court because of issues of infirmity, yet now seeks to offer the deposition testimony as reliable evidence at trial. However, the evidence indicated that decedent was unable to travel primarily because of physical, not mental, infirmities. The motion in limine cannot be granted on the asserted basis of “judicial estoppel” as espoused by the defense.

Further, even though decedent 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, applying Virginia law, 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. Further, the essential sequence of events as described by decedent are corroborated by the flight attendant, except for the relatively minor discrepancy of whether decedent was escorted up the jet way by a member of the flight crew.

The deposition testimony of plaintiff will be permitted to be used at trial (subject to the limitations imposed by the accompanying order to eliminate unnecessary and confusing redundancy and irrelevancy) for the jury, as fact finder, to afford it, pursuant to appropriate instruction, such weight as they deem appropriate. At the same time, the court will permit the defense to offer such excerpts from the deposition as it may urge demonstrates overall confusion, etc., as that may affect the jury’s assessment of credibility, in order to maintain a balanced perspective.

The court specified in its May 22, 2008, scheduling order that “treating physicians” are not subject to disclosure (nor the substance of their opinions) in a Rule 26(a)(2)(B) expert designation. “Expert” medical witnesses are those who are retained or specially employed to offer an opinion of causation related to their diagnosis of a claimant’s condition and the alleged claims involved.

Presumably, plaintiff, by counsel, did not designate the treating physician as an expert in a Rule 26 disclosure, but the court observes that his identity and availability for discovery was provided in the responses to standard written interrogatory demands for discovery as to damage claims. Accordingly, the defense has had a fair opportunity to “discover” such opinions as to the claims for all damages and the court will not reopen discovery for them to do so now, especially where the court has already foreclosed and denied plaintiff’s counsel’s request to re-open discovery for other pursuits.

Where the court has concerns regarding the sufficiency of any evidentiary foundation for such evidence related to injuries received as a result of the subject incident, the court will first entertain such related “foundation” testimony at trial, outside the presence of the jury, in order to determine, subject to the voir dire of the defense, whether the evidence can then be presented to the fact finder for their ultimate consideration.

Jackson, Adm’r v. United Airlines Inc. (Dohnal, J.) No. 3:08cv182, June 17, 2009; USDC at Richmond, Va. VLW 009-3-344, 9 pp.

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