Kirschner v. Broadhead

• Decision Date: 01 March 1982
• Docket Number: Nos. 80-2530,80-2542 and 80-2543,s. 80-2530
• Parties: 10 Fed. R. Evid. Serv. 545 Thomas KIRSCHNER, Plaintiff-Appellee, v. Paul BROADHEAD, James B. Brumfield, and John Robinson, M.D., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1034

671 F.2d 1034

10 Fed. R. Evid. Serv. 545

Thomas KIRSCHNER, Plaintiff-Appellee, v. Paul BROADHEAD, James B. Brumfield, and John Robinson, M.D.,

Defendants-Appellants.

Nos. 80-2530, 80-2542 and 80-2543.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 1981.

Decided March 1, 1982.

David M. Mattingly, Samuel A. Fuller, Donald L. Tunnell, Yarling, Tunnell, Robinson & Lamb, Indianapolis, Ind., for defendants-appellants.

William L. Soards, Soards & Carroll, Indianapolis, Ind., for plaintiff-appellee.

Before BAUER, and WOOD, Circuit Judges, and CAMPBELL, ^* Senior District Judge.

BAUER, Circuit Judge.

Thomas Kirschner sued defendants-appellants Paul Broadhead, James Brumfield, and John Robinson for damages allegedly stemming from a fist-fight and name-calling incident. The first count of Kirschner's complaint charged all three appellants with assault and battery; the second count accused Broadhead of slander. The jury returned a verdict in favor of Kirschner for $90,000 on the first count and $50,000 on the second. On appeal Broadhead, Brumfield, and Robinson argue that reversible errors occurred in the proceeding below. We agree and reverse the judgment of the district court.

I

The incident giving rise to this lawsuit was the culmination of a series of irritating confrontations between two Canadians-Kirschner and Robert Suwary-and three Mississippians-Broadhead, Brumfield, and Robinson. All five attended several social events hosted by Mel and Brenda Simon in Indianapolis, Indiana over the 1975 Memorial Day weekend. Stating the matter mildly, the two groups did not part friends by the holiday's end.

The first brouhaha involving members of the two groups occurred at the Simons' residence on Friday afternoon, May 23, 1975. Appellant Robinson and his wife arrived at the Simons' home and went to the bar area where they mingled with other guests. Kirschner, who had just completed a tennis match, entered the bar pounding his chest yelling, "I'm Tarzan! I can beat anybody." The Robinsons considered Kirschner's display unseemly, but apparently chose to suffer in silence.

The next episode in the saga unfolded that evening at the LaTour Restaurant, where the Simons held a dinner party in honor of Actor Ernest Borgnine. Appellants Robinson and Broadhead, together with their wives and two other couples, were seated in the restaurant's cocktail lounge engaged in conversation when Kirschner's friend Suwary approached them. Suwary pulled up a chair and seated himself so close to Broadhead that their faces were just inches apart. He then intentionally annoyed Broadhead by staring at him. Robinson, who happens to be Broadhead's physician, fearing that Suwary's provocation would aggravate Broadhead's seriously high blood pressure, ¹ asked Suwary to leave. Robinson and Suwary then left the table and exchanged words in a nearby alcove. At that point, Kirschner walked past the alcove and noticed Robinson and Suwary arguing. According to Robinson, Kirschner intervened and began poking Robinson in the chest while calling him offensive names. Robinson responded by grabbing Kirschner and either pushing or punching him. The fray ended, however, when an obviously peace-loving waiter separated them.

The following morning, Kirschner and Suwary allegedly continued their antics by loudly criticizing the fare at an elaborate champagne brunch. In fact, Robinson testified that Kirschner went so far as to spew food from his mouth to his plate. ² That afternoon Suwary interrupted a tennis match, in which Broadhead was a participant, by walking on the court and arguing with Broadhead. Still later, during an evening dinner dance at the Broadmoor Country Club, Kirschner and Suwary accosted Robinson's wife with an extremely rude and indelicate remark. ³

Given the mounting tension between the Kirschner-Suwary and Robinson-Broadhead factions, the melee which occurred a few hours later could hardly be termed a surprise. At 1:30 a.m. Sunday morning, Kirschner and Suwary returned to the Marten House Hotel, where both they and the appellants were staying. Suwary, walking a few feet ahead of Kirschner, passed the doorway to a room in which Broadhead, Robinson, and Brumfield were watching television. Broadhead spotted Suwary and headed for the door. After reaching the door and starting down the hall in pursuit of Suwary, Broadhead glanced in the opposite direction, saw Kirschner trailing behind, and said, "Come over here, boy. I want to talk to you." Kirschner turned to escape but ran into Robinson and Brumfield as they emerged from the television room.

Although the evidence is conflicting as to exactly what followed, it appears that Kirschner swung at Robinson, who ducked and dropped to the floor, the blow striking Brumfield instead. Brumfield returned the favor by punching Kirschner, who fell on Robinson. A struggle ensued, with Kirschner getting the worst of it. ⁴ Somehow Kirschner broke free and fled to the hotel lobby, where he found Suwary. Shortly thereafter, Broadhead arrived in the lobby shouting, "These guys are a bunch of goddamn queers, a bunch of homosexuals." It is unclear whether anyone other than Suwary and Kirschner was present at the time Broadhead made these statements. In any event, the police were called and the combatants separated.

Kirschner subsequently brought this action, alleging assault and battery based on the fracas outside the television room and defamation based on Broadhead's exclamations in the lobby. This appeal challenges the substantial judgment awarded Kirschner.

II

Appellants first contend that the trial court erroneously excluded portions of Broadhead's proffered deposition testimony. Kirschner introduced portions of Broadhead's deposition in which Broadhead acknowledged calling Kirschner and Suwary "queers" and possibly homosexuals. Appellants subsequently attempted to place Broadhead's statements in context by presenting the remainder of his deposition testimony. The trial judge, however, ruled that the rest of Broadhead's answers were unresponsive and therefore inadmissible.

Appellants argue that under rule 32(d)(3)(B), ⁵ F.R.Civ.P., Kirschner waived his right to object at trial to the narrative form of Broadhead's answers by failing to so object during the deposition. Kirschner, on the other hand, claims that no waiver occurred and that, in any event, the testimony was properly excluded at trial on either hearsay or relevancy grounds.

We agree with appellants. Rule 32(d)(3)(B) is plain on its face: errors or irregularities in the form of answers which might be obviated during the deposition if promptly presented are waived absent timely objections. See, e.g., Oberlin v. Marlin American Corp., 596 F.2d 1322, 1328 (7th Cir. 1979); Bahamas Agricultural Industries, Ltd. v. Riley Stoker Corp., 526 F.2d 1174, 1180 (6th Cir. 1975); Sims Consolidated, Ltd. v. Irrigation and Power Equipment, Inc., 518 F.2d 413, 417 (10th Cir.), cert. denied, 423 U.S. 913, 96 S.Ct. 218, 46 L.Ed.2d 141 (1975); Elyria-Lorain Broadcasting Co. v. Lorain Journal Co., 298 F.2d 356, 360 (6th Cir. 1961); Thompson v. Thompson, 164 F.2d 705, 706 (D.C.Cir.1947); Houser v. Snap-On Tools Corp., 202 F.Supp. 181, 188 (D.Md.1962).

The analysis in Bahamas Agricultural Industries, 526 F.2d 1174, 1180-81 (6th Cir. 1975), is instructive on this point. There, as here, the deponent was unavailable to testify at trial, necessitating the introduction of his deposition testimony. The deponent had been asked a number of argumentative questions by plaintiff's counsel without objection by defendant. The trial court sustained several of defense counsel's objections to the form of the deposition questions. On appeal, the Sixth Circuit held that the district court erred in sustaining the objections because defendant had not raised them during the deposition. We find the Sixth Circuit's reasoning persuasive and worth repeating:

If the objection could have been obviated or removed if made at the time of the taking of the deposition, but was not made, then that objection is waived. The focus of the Rule is on the necessity of making the objection at a point in the proceedings where it will be of some value in curing the alleged error in the deposition. When a party waits until trial to object to testimony in the deposition, the only manner in which to cure the deposition is to bar the objectionable portions from the trial. It is important that objections be made during the process of taking the deposition, so that the deposition retains some use at the time of trial; otherwise counsel would be encouraged to wait until trial before making any objections, with the hope that the testimony, although relevant, would be excluded altogether because of the manner in which it was elicited.

Id. at 1181. Although the issue before the Sixth Circuit concerned only the form of questions, the court noted that rule 32(d)(3)(B) applies to questions and answers alike. Id. at 1180.

After reviewing the colloquy between the trial judge and counsel for both sides, it is clear that the district court excluded Broadhead's deposition testimony as unresponsive even though Kirschner failed to object to this testimony at the time of its taking. The court's failure to admit this testimony kept the jury from hearing Broadhead's version of the weekend conflict because illness precluded him from testifying at trial. This result is precisely what rule 32(d)(3)(B) is designed to prevent: a total exclusion of evidence on grounds which could have been remedied at deposition but cannot be at trial. Clearly, any problem with the form of Broadhead's deposition answers could have been corrected by seasonable objection. Broadhead simply would have conformed his answers to the questions. The limited nature of such answers, in turn, would have alerted Broadhead's counsel to develop omitted portions of the story on cross-examination. Because Kirschner did not object, ap...