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Attorney should have objected during depo

Attorney should have objected during depo

Virginia Lawyers Weekly//May 2, 2023//

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Where a party suing over his alleged injuries in an automobile accident argued that questions posed to a witness in that man’s deposition were inadmissible hearsay, but his counsel failed to object to the questions during the man’s deposition, the argument was rejected.


On Aug. 11, 2018, Judy M. Paul, Andre G.H. Le Doux V and Ervin Joseph Worthy, who was operating a Western Express tractor-trailer, were involved in a multi-vehicle accident on Interstate 81. During the final pretrial conference, Le Doux raised several objections to Roger Hiatt’s and Dr. Josh Mleczko’s depositions.


Regarding Mr. Hiatt’s deposition, plaintiff argued that defense counsel’s questions quoting Mr. Hiatt’s post-crash memorandum are inadmissible hearsay and should be excluded from the deposition. The court finds that these objections were not timely and properly raised, as required by Fed. R. Civ. P. 32(d)(3).

Rule 32(d)(3)’s focus “is on the necessity of making objections at a point in the proceedings where they will be of some value in curing the alleged error in the deposition.” Here, plaintiff’s hearsay objections directly relate to the way defense counsel questioned Mr. Hiatt and the form of their questions; they thus could have been corrected during the deposition.

To cure these objections now, the court would have to strike a large portion of Mr. Hiatt’s deposition, which would significantly reduce the deposition’s usefulness and helpfulness to the jury. Accordingly, any questions where defense counsel quoted Mr. Hiatt’s post-crash memorandum and plaintiff’s counsel did not object to during the deposition are admissible. Furthermore, the admissibility of this testimony is in the spirit of Fed. R. Evd. 804(b)(1) & 807.


Plaintiff also argued that Dr. Mleczko’s deposition is inadmissible because defendants failed to disclose him as an expert witness. But his opinions regarding whether Le Doux followed his medical recommendations are lay opinions and thus are not subject to the requirements under Rule 26(a)(2). Such opinions are rationally based on his perceptions of treating Le Doux as his primary care physician, could be helpful to determining the issue of damages, and are not based on scientific, technical or other specialized knowledge.

Plaintiff’s objections to depositions overruled.

Le Doux v. Western Express Inc., Case No. 6:20-cv-51, April 10, 2023. WDVA at Lynchburg (Moon). VLW 023-3-195. 3 pp.

VLW 023-3-195

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