Nichols v. Retreat , 185 Vt. 313 ( 2009 )

Reiber, CJ.

¶ 1. Plaintiffs in this medical negligence action appeal from a judgment, based on a jury verdict, in favor of defendant, the Brattleboro Retreat. Plaintiffs contend the court erred in: (1) admitting the deposition testimony of an expert witness without finding that the witness was unavailable; and (2) denying a motion for mistrial or new trial based on defense counsel’s alleged misconduct. We conclude that the admission of the deposition testimony was error, and reverse and remand. In light of this conclusion, we do not consider the claimed error based on counsel’s alleged misconduct.

¶2. The facts underlying this appeal may be briefly summarized. Additional information pertinent to the specific issues will be set forth in the ensuing discussion. In the fall of 2008, plaintiffs’ son, who has a long history of mental illness, was a patient at the Brattleboro Retreat. On the day in question, he became highly agitated, swore at Retreat staff, and kicked several pieces of furniture. Staff accompanied him to a “quiet room” and left him alone inside, where he continued to yell and kick. Staff eventually called the Brattleboro Police Department. When the responding officers were unable to calm plaintiffs’ son, they threatened him with a TASER and ultimately used it to subdue him. Staff then injected him with Haldol, and he lost consciousness.

¶ 3. Plaintiffs later filed this action against the Retreat, alleging medical negligence and lack of informed consent. Following a three-day trial in June 2007, the jury returned a verdict in favor of the Retreat. The court denied a subsequent motion for new trial. This appeal followed.

¶ 4. Plaintiffs first contend that the trial court erred in admitting the videotaped deposition of the Retreat’s expert witness, Dr. Rabinowitz, without finding that the witness was unavailable. The facts underlying the claim may be summarized as follows. The Retreat had identified Dr. Rabinowitz, a psychiatrist at Fletcher Allen Health Center, as its sole expert witness. Plaintiffs deposed him in March 2007. Although the Retreat’s attorney requested that trial be scheduled for the week of June 25, 2007, the court notified the parties that trial would commence one week earlier, beginning June 19, 2007. The Retreat’s attorney then informed plaintiffs’ counsel that Dr. Rabinowitz was unavailable during the week of June 19, and requested that counsel choose a convenient date to depose the witness and “videotape his testimony for preservation and trial.” In a series of email responses, plaintiffs’ counsel inquired as to the reasons for the witness’s unavailability and offered to allow him to testify out of order, but did not expressly agree to the admission of the videotaped testimony. Ultimately, the Retreat’s attorney issued a formal notice of deposition of Dr. Rabinowitz to be “recorded stenographically and by video tape for use at trial.” During his initial examination of the witness, counsel for the Retreat explained that the deposition testimony was being taken specifically “to present to the jury” at trial, and the witness explained the reason for his unavailability during the week scheduled for trial.¹ Plaintiffs’ counsel appeared at the deposition and cross-examined the witness.

¶ 5. Plaintiffs objected to the admission of the videotaped deposition at trial, however, arguing that the Retreat had not shown that the witness was unavailable. The court found that both parties had clearly understood that the second deposition of Dr. Rabinowitz was “a preservation deposition, recorded for purposes of admission at trial” and that plaintiffs had not objected to the proposed use at the time of the deposition. In addition, the court observed that it was appropriate “to consider . . . [any] prejudice to the plaintiffs] in the use of [the] deposition,” and found in this regard that plaintiffs had been “able to cross-examine the doctor to their satisfaction.” For these reasons, the court ruled that the deposition was admissible.

¶ 6. The preference for live, in-court testimony is well settled in our jurisprudence. Criminal defendants enjoy a constitutional right “to be confronted with the witnesses” against them. U.S. Const, amend. VI; Vt. Const., ch. I, art. 10. Civil litigants are accorded a similar right under Rule 43(a) of the Vermont Rules of Civil Procedure, which provides broadly that “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.” Exceptions to the general rule are also well recognized. One is set forth in Rule 32(a)(3)(E), which provides that the deposition of a witness may be admissible at trial if the court finds that the witness “is absent from the hearing and the proponent of the deposition has been unable to procure the witness’ attendance by process or other reasonable means.” As we have observed, “deposition testimony can be taken and used at trial if the witnesses are unavailable.” Int’l Collection Serv., Inc. v. Gibbs, 147 Vt. 105, 107, 510 A.2d 1325, 1327 (1986).

¶ 7. Although the Retreat relied on the exception for “absent” witnesses in seeking admission of Dr. Rabinowitz’s deposition, the trial court did not make the requisite finding that the witness was unavailable as a basis for admission. Instead, the court essentially found that plaintiffs had waived the objection by failing to raise it at the deposition despite plaintiffs’ clear understanding that the sole purpose of the deposition was to preserve testimony for trial. Plaintiffs challenge this ruling.

¶ 8. We agree with plaintiffs that the facts and the law do not support the court’s finding of a waiver. There is no question, to be sure, that plaintiffs were aware of the stated purpose of the deposition and extensively examined the witness with this understanding. Nevertheless, plaintiffs expressly denied having entered into any stipulations at the start of the deposition, and, more importantly, were under no affirmative obligation to raise an objection at that time; it remained defendant’s burden, as the proponent, to establish a foundation for the deposition’s admission at trial. See Duto v. Mitchell, 158 Vt. 653, 654, 609 A.2d 988, 989 (1992) (mem.) (although plaintiffs had informed defendant of their intent to introduce deposition at trial and defendant did not object, defendant “never agreed affirmatively to waive its right to require the in-court appearance” of the witness, and defendant’s silence did not amount to acquiescence). Hence, we cannot conclude that the record supports a finding that plaintiffs waived their objection to the deposition or implicitly agreed to its admission. Moreover, there was no finding that the witness actually was unavailable. Accordingly, it was error to admit the deposition.

¶ 9. Our conclusion in this regard does not end the matter, however, for error in the admission of evidence will not undermine a verdict absent a showing that it resulted in prejudice to the substantial rights of a party. See Boehm v. Willis, 2006 VT 101, ¶ 12, 180 Vt. 615, 910 A.2d 908 (mem.) (observing that trial court’s admission of expert’s deposition testimony would not be disturbed “unless that decision was an abuse of discretion resulting in prejudice to plaintiff’s substantial rights” (internal quotation omitted)). See also V.R.C.P. 61 (“No error in either the admission or the exclusion of evidence ... is ground for granting a new trial or setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice.”); V.R.E. 103(a) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”).²

¶ 10. On this record, it is clear that plaintiffs’ substantial rights were prejudiced and that refusing to grant the motion for new trial was inconsistent with substantial justice. Dr. Rabinowitz’s testimony was the linchpin of the Retreat’s defense. Plaintiffs’ expert testified that the Retreat’s treatment of plaintiffs’ son fell below the necessary standard of care insofar as the Retreat never developed an individualized treatment plan for plaintiffs’, son, failed to follow standard de-escalation techniques, and failed to monitor him properly after he had been sedated. Dr. Rabinowitz was the only defense witness to rebut this claim or to testify directly about the standard of care.

¶ 11. The bulk of the remaining testimony — by plaintiffs and various staff members at the Retreat — concerned only the events leading up to and following the alleged malpractice. The only testimony on the standard of care was given by the two expert witnesses. If the deposition testimony of defendant’s expert had not been allowed, defendant would have been left with only the testimony it was able to elicit from plaintiffs’ expert on cross-examination. Although defendant was able to suggest that plaintiffs’ expert had not clearly answered some questions and had changed his testimony in answering others, we cannot conclude that, standing alone, the cross-examination took the place of necessary rebuttal testimony about the relevant standard of care. Because the deposition testimony was the only responsive evidence offered by defendant on the crucial question in the case, the wrongful admission of that evidence was not harmless, and the judgment in favor of the Retreat must be vacated. See Duto, 158 Vt. at 654, 609 A.2d at 989 (vacating judgment based on improperly admitted deposition testimony).

¶ 12. In closing, we respond briefly to the cases cited by the dissent in support of the proposition that the error here was harmless. In the first, Allgeier v. United States, the United States Court of Appeals for the Sixth Circuit concluded that the admission of a doctor’s deposition was harmless in light of the fact that the doctor’s testimony was largely cumulative with what could have been elicited from other witnesses, including the plaintiff himself. 909 F.2d 869, 876 (6th Cir. 1990). That is not the case here, where Dr. Rabinowitz’s deposition was the sole evidence offered by defendant on a central issue. Similarly, a federal district court, in Thomas ex rel. Smith v. Sheahan, concluded that there was no prejudice precisely because the disputed deposition testimony “was cumulative of the other evidence presented.” 556 F. Supp. 2d 861, 876 (N.D. Ill. 2008) (noting that the disputed testimony duplicated that of plaintiff’s two cellmates, three other detainees, the plaintiff’s family and friends, and multiple meningitis experts). Last, the Mississippi Supreme Court found harmless error in Mutual Life Insurance Co. v. Estate of Wesson because the party asserting the error “did not inform or indicate to this Court any benefit it would have received from [the deponent’s] presence, nor [did it] state how it was prejudiced by the use of the deposition.” 517 So. 2d 521, 538 (Miss. 1987), overruled on other grounds by Gen. Am. Life Ins. Co. v. McCraw, 963 So. 2d 1111, 1114 (Miss. 2007). Further, the court noted, the party asserting prejudicial error had itself initiated the taking of the disputed deposition. Id. Neither circumstance is present here, and the decision is inapposite.

¶ 13. The dissent concludes that the error here was harmless in part because plaintiffs did not “decline the invitation to attend the so-called preservation deposition, or pass on the opportunity to vigorously cross-examine the deponent.” Post, ¶ 21. While the dissent is certainly correct that such inaction would very likely have made the trial court’s error more harmful, that is precisely why plaintiffs’ attorney could not, consistent with his professional obligations, decline to attend the deposition or cross-examine the expert. The dissent’s suggestion that advocates must be passive in situations like this would place attorneys — bound to represent their clients’ interests zealously — in an odd ethical dilemma. The rules do not require such a strange result.

¶ 14. Plaintiffs also contend that the court erred in denying a motion for mistrial and a subsequent motion for new trial premised on defense counsel’s allegedly prejudicial conduct during cross-examination of plaintiffs’ expert witness and closing argument. Because we vacate the judgment on the grounds noted above, we need not consider this claim of error.

The judgment is vacated, and the matter is remanded.

1 The dissent contends that the admission of the deposition was proper in part because it “was . . . noticed and conducted as a ‘preservation’ deposition.” Post, ¶ 17. No such distinct type of deposition is described, or even mentioned, in our rules, however.

2 The dissent asserts that we are applying “the extraordinarily demanding criminal standard of harmless error beyond a reasonable doubt.” Post, ¶ 20. We are not applying that standard, as the preceding citations to civil authority make clear.