Ott v. Samaritan Health Service

• Decision Date: 09 October 1980
• Docket Number: CA-CIV,No. 1,1
• Citation: 622 P.2d 44,127 Ariz. 485
• Parties: Aaron R. OTT, Jr. and Karen J. Ott, his wife, Plaintiffs-Appellants, v. SAMARITAN HEALTH SERVICE, an Arizona Corporation, Defendant-Appellee. 4371.
• Court: Arizona Court of Appeals

Page 44

622 P.2d 44

127 Ariz. 485

Aaron R. OTT, Jr. and Karen J. Ott, his wife, Plaintiffs-Appellants, v. SAMARITAN HEALTH SERVICE, an Arizona Corporation, Defendant-Appellee.

No. 1 CA-CIV 4371.

Court of Appeals of Arizona, Division 1, Department B.

Oct. 9, 1980.

Rehearing Denied Dec. 10, 1980.

Review Denied Dec. 23, 1980.

Treon, Warnicke, Dann & Roush, P. A., by Michael J. Valder and Charles D. Roush, Phoenix, for plaintiffs-appellants

Weyl, Guyer, MacBan & Olson by Barry A. MacBan and Burch & Cracchiolo, P. A. by Daniel Cracchiolo and Daryl D. Manhart, Phoenix, for defendant-appellee.

OPINION

O'CONNOR, Judge.

This is an appeal by appellants, Aaron R. Ott, Jr., and Karen J. Ott, his wife, who were plaintiffs in a medical malpractice action, from a judgment against them after a trial in the Superior Court of Maricopa County, from the trial court's denial of their motion for new trial, and from a judgment against them for jury fees and costs. Appellant, Aaron R. Ott, Jr., had been a patient in the rehabilitation unit of Good Samaritan Hospital for long-term rehabilitation treatment following an accident resulting in head injuries. He had suffered brain damage with impaired balance, coordination, vision, and memory. On his tenth day at the hospital, he returned to his hospital room alone in his wheelchair after dinner. He was found soon afterwards on the floor of his room with a broken hip. Thereafter, he suffered complications from the hip injury which resulted in several surgeries and a hip replacement. Appellants filed suit against appellee, alleging that Mr. Ott's broken hip and its consequences were the result of appellee's negligence in allowing him to return to his room alone. The jury returned a defense verdict for appellee, and the judgment was entered accordingly.

Appellants assert on appeal that they are entitled to a new trial by virtue of various prejudicial errors and rulings of the trial court during the trial which was conducted in April and May, 1977.

RIGHT TO READ BOTH DIRECT AND CROSS-EXAMINATION OF DECEASED DEPONENT

Appellants assert that the trial court committed prejudicial error when it refused to allow appellants to read the cross-examination portion of a deposition of a deceased witness, Michael Wright. Appellants had taken Mr. Wright's deposition prior to trial. Mr. Wright had been an employee of appellee and had rendered care to Mr. Ott prior to his injury on October 9. Appellee objected to the reading at trial of its cross-examination of Mr. Wright at his deposition on the grounds that the deposition testimony was a substitute for the witness' actual testimony at trial and that appellants had elected to read the witness' deposition, thereby making him their witness and limiting them to merely their own direct examination of the witness.

Rule 32, Rules of Civil Procedure, provided in part as follows at the time of the trial in April and May, 1977: ¹

32(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead;

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

(b) Objections to Admissibility. Subject to the provisions of Rules 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(c) Effect of Taking or Using Depositions. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

No reported Arizona decision has been found which addresses the issue of the right of the party offering the deposition to read the cross-examination as well as the direct testimony of the deponent. ² Appellee has cited Andrews v. Olin Mathieson Chemical Corporation, 334 F.2d 422 (8th Cir., 1964), and Cullers v. Commissioner of Internal Revenue, 237 F.2d 611 (8th Cir., 1956). Cullers involved a Tax Court proceeding to determine the value of a farm for gift tax purposes. The taxpayer had taken the deposition of a neighboring landowner, but he did not offer the deposition at trial, nor did he call the deponent as a witness. The Commissioner of Internal Revenue, however, attempted to offer the deposition at trial. The taxpayer objected to the offer unless the Commissioner made the deponent his own witness, which the Commissioner agreed to do. The taxpayer then objected to admission of the cross-examination portion of the deposition. The Tax Court sustained the objection. The 8th Circuit Court of Appeals held:

It is noted that Overton (the deponent) was a witness and that no showing, so far as the record discloses, was made by the Commissioner that he had met any of the requirements of Rule 26(d)(3), Fed.Rules Civ.Proc. 28 U.S.C.A., pertaining to the admission of depositions of witnesses, nor is there any finding by the court that the Commissioner had met any such requirements. Absent a showing entitling the Commissioner to introduce the deposition, there appears to be considerable merit to taxpayers' contention that the admission of the deposition is limited to the direct examination of Overton .... The court clearly limited the offer of the deposition to direct examination, and the Commissioner agreed to this limitation.

237 F.2d at 615. Thus, the Cullers case did not involve the use at trial of a deposition of a deceased or absent witness under the applicable federal rule.

Andrews was a personal injury case. At trial the plaintiffs read to the jury the direct testimony of two medical witnesses. The defendant waived reading the cross-examination of one witness, and read selected portions from the other witness' cross-examination. Plaintiffs then sought to adopt the cross-examination of the first witness as their own, but the court sustained a defense objection. The court also limited plaintiffs to reading only the portions of the other witness' cross-examination which were relevant to the portions read by the defendant. The 8th Circuit Court of Appeals found no error, citing rule 26(d)(4) of the Federal Rules of Civil Procedure ³ (which is similar to rule 32(a)(4) of the Arizona Rules of Civil Procedure), to wit: "If only a part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced ..." The Court of Appeals also held that neither the record nor the briefs reflected the specific testimony or evidentiary proof of the cross-examinations which were excluded by the trial court rulings, and that on appeal prejudicial error would not be presumed to exist. Thus, in Andrews, the plaintiffs had not initially elected to read the cross-examination portion of the deposition. Additionally, the record did not include the portion which was excluded.

Neither the Andrews or Cullers case had before it the complete record of the cross-examination portions of the depositions which were excluded. In this case, the transcript of the deposition is made a part of the record, and the deposed witness was deceased at the time of the trial.

The Rules of Civil Procedure were intended "to abolish technicalities and to secure a just determination of every action." Dons Club v. Anderson, 83 Ariz. 94, 97, 317 P.2d 534, 536 (1957). Great weight is given to federal interpretations of the rules. Edwards v. Young, 107 Ariz. 283, 486 P.2d 181 (1971); Harbel Oil Company v. Steele, 80 Ariz. 368, 298 P.2d 789 (1956).

The plain and clear language of rule 32(a), as it appeared in 1977 and presently in both the federal and the Arizona Rules of Civil Procedure, expressly allows any party to an action to use all or any part of a deposition which qualifies for admission at trial by reason of the absence or death of a witness, or the witness' status as an adverse party. A party may thus choose to introduce only the parts of a deposition which favor his case. Rule 32(a) (4) prevents the unfair or misleading use of only parts of a deposition by providing that the adverse party may require any additional portions to be read which "ought in fairness to be considered with the part introduced," and that "any party may introduce any other parts" of a deposition. The language of rule 32(a), "so far as admissible under the rules of evidence applied as though the witness were then present and testifying," allows a party to challenge at trial the admissibility of any portion of the deposition which, though relevant within the scope of discovery, is irrelevant for purposes of evidence or otherwise excludable under the rules of evidence. See 4A Moore's Federal Practice, PP 32.01(4), 32.06, 32.09. ⁴

We hold that rule 32(a) and 32(a)(4) allow any party to read all or part of the direct examination or cross-examination of a witness' deposition which qualifies for...