Downing v. Tappan Zee Constructors, LLC

Background

Richard Downing, who was injured while working as a deckhand, asserted a medical-malpractice claim against Dr. Thomas Lee, the only remaining defendant. The opinion states that Downing is paralyzed. The court considered two motions in limine, which are requests to limit evidence at trial.

Downing sought to prevent Lee from using deposition testimony from Dr. Michael Murphy and Dr. Stephen Conway in Lee’s direct case. Lee sought to prevent Downing from using Dr. Bruce Tranmer as an expert because Tranmer was disclosed after the court-ordered deadline.

Downing’s Motion Concerning Deposition Testimony

The court granted Downing’s motion. It explained that live testimony is generally preferred because the fact finder can observe a witness’s demeanor. Under Federal Rule of Civil Procedure 32, deposition testimony may be used instead of live testimony when specified circumstances exist, such as the witness’s death, distance, illness, inability to attend, inability to be subpoenaed, or exceptional circumstances making deposition use desirable in the interest of justice.

Lee argued that Conway was more than 100 miles from the trial location. The court rejected that argument, finding that Conway’s location was 77.42 miles away in a straight line and 90.15 miles by driving distance. The court also found that Lee had not shown either Murphy or Conway was actually unavailable, such as by refusing to testify or being beyond the reach of a trial subpoena. It further found no exceptional circumstances similar to those in the cases Lee cited.

The court therefore precluded Lee from introducing Murphy’s or Conway’s deposition testimony in Lee’s direct case at trial. The court stated that Lee could still present their live testimony.

Lee’s Motion Concerning Tranmer

The court denied Lee’s motion to preclude Tranmer. Although Downing disclosed Tranmer as his intended trial expert more than three years after the deadline, Tappan Zee Constructors, LLC, a former defendant, had timely disclosed Tranmer as its expert and had provided his report. Lee’s counsel participated in Tranmer’s deposition.

The court concluded that the late disclosure was harmless and would not prejudice Lee. Tranmer’s report, which Lee had received before the deposition, stated that Lee failed to meet the standard of care in managing Downing’s condition. The court therefore rejected Lee’s argument that he did not know Tranmer might give adverse testimony. The court also noted that the trial was tentatively scheduled more than five months later, giving Lee time to prepare.

Disposition

Downing’s motion in limine was GRANTED. Lee’s motion in limine was DENIED. The Clerk was instructed to terminate both motions. This opinion addressed trial-evidence issues and did not decide the underlying medical-malpractice claim.