Deponents, Decedents, and Decisions: Admissibility of Partial Deponent–Decedent Testimony Against Opposing Parties

Blog Post | 110 KY. L. J. ONLINE | January 3, 2022

Deponents, Decedents, and Decisions: Admissibility of Partial Deponent–Decedent Testimony Against Opposing Parties

By: Abby Schueler, Staff Editor, Vol. 110

Imagine you are a defense attorney, sent to depose a plaintiff in a simple motor vehicle accident. At the deposition, you question the plaintiff about his background, education, the circumstances of the accident, his post-accident complaints and medical care, and his damage claims. But the plaintiff feels ill, and counsel decides to continue the deposition until later in the week, at which time you intend to attack the plaintiff with your defenses: the plaintiff’s level of fault, his post-accident malingering, and convince him and his counsel that his case against your client is worth nothing. 

The next day, however, you are told that the plaintiff has suddenly died. The estate plans to use the plaintiff-decedent’s deposition in their “case-in-chief.” But can they use your deposition against you? You haven’t been able to retrieve testimony pertinent your case-in-chief from the decedent! How do you proceed?

Hearsay and Exceptions

A deposition qualifies as hearsay. In considering whether Plaintiff’s hearsay statement may be used at trial, we note that he is clearly “unavailable” under KRE 804(a)(4).  However, hearsay statements that constitute former testimony are admissible “if the party against whom the testimony is now offered … had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”[1]

Did you have and subsequently waive an opportunity to cross-examine the plaintiff at the deposition by consenting to continuing the deposition, such that it is admissible? Have you lost for your client the “fundamental constitutional right” of cross-examining the opponent?[2] Thus is the risk of not completing a deposition while you have the plaintiff sitting at the table. The situation is not common, and little has been written on the subject.[3]  But as stated by University of Kentucky College of Law Professor Underwood, “the modern view seems to be that, in civil cases, ‘the half-loaf of direct testimony is better than no bread at all.’”[4]

Is Partial Deposition Testimony Admissible After the Deponent Has Died?

In determining the admissibility of a partial deposition, some courts consider whether the failure of cross-examination was consented to, or whether a voluntary act of the witness or the proponent of the testimony precluded the opportunity.[5] For instance, in Inland Bonding Co., the defendant consented to continue the deposition of a witness due to the witness’s ill health, after plaintiff’s direct examination, and the court denied a motion to suppress due to that consent.[6] 

Similarly, in Continental Can Co., while the defendant partially completed the deposition of one of plaintiff’s employees, defendant consented to continue the deposition so as to allow the witness to go on a business trip.[7]  When the witness died before resuming the deposition, the court denied the motion to suppress because “if . . . cross-examination was postponed by consent of the party moving to suppress, there is no ground for suppression.”[8] The other side of the consent/waiver coin is where suppression of a partial deposition occurs due to the proponent’s decision to cease and continue the deposition (albeit due to the illness of the plaintiff), thereby depriving the defendants of their right of cross-examination.[9] 

Another approach is for the court to consider whether the untaken portion of the deposition would have made any difference to anything. In Derewecki, the deposition of plaintiff was not completed due to his illness and later death.[10]  The court held that the trial court did not err in admitting the partial deposition because further examination and cross-examination could or would not have benefited the defendant.[11] The court held that a “substantially complete” deposition should not be rejected and that a deposition is “substantially complete when it is clear . . . that the evidence contained in the deposition is sufficient to establish a basis for relief on the cause of action asserted.”[12]

Thus, risk is introduced anytime a deposition is continued by agreement/consent of the parties.[13]  But what is consent? Was the continuance of the deposition a practical necessity (and therefore not “consented” to) due to the illness of the witness?  In French, the plaintiff was deposed by multiple defendants over three days.[14] The particular defendant was not able to question plaintiff regarding the specifics of the claims against it prior to the deposition being terminated and rescheduled due to plaintiff’s condition.[15] Plaintiff died before that continued deposition.[16] The court held that it had a responsibility to “uphold the constitutional and procedural protections put in place to protect defendants from potentially unwarranted liability,” and that this defendant was not “provided a reasonable opportunity to cross-examine."[17] Thus, the Sixth Amendment right to confront witnesses being implicated, the court held that the “deposition testimony [did] not meet the requirements for an exception to the ban against admitting hearsay evidence” and the deposition was not admitted.[18]

[1] KRE 804(b)(1) (emphasis added).

[2] See Caudill v. Commonwealth, 120 S.W.3d 635, 661 (Ky. 2003); see also California v. Green, 399 U.S. 149, 158 (1970) (stating that cross-examination is the “greatest legal engine ever invented”). 

[3] See, e.g., G.S., Dead Men Tell No Tales: Admissibility of Civil Depositions Upon Failure of Cross-Examination, 65 Va. L. Rev. 153, 153 (1979). 

[4] Richard H. Underwood, Discovery in Kentucky: An Overview, 72 Ky. L.J. 727, 753 (1984) (quoting C. McCormick, Handbook of the Law of Evidence § 19, at 45 (2d ed. 1972)).

[5] G.S., supra note 3, at 159.

[6] Inland Bonding Co. v. Mainland Nat’l Bank, 3 F.R.D. 438, 439 (D.N.J. 1944).

[7] Cont’l Can Co. v. Crown Cork & Steel, Inc., 39 F.R.D. 354 (E.D. Pa. 1965).

[8] Id. at 356; see also Kardos v. Armstrong Pumps, Inc., 222 A.2d 393 (Pa. Super. Ct. 2019) (noting that not all of the defendants chose to cross-examine plaintiff at his deposition, and they could not, therefore, suppress the use of the partial deposition). 

[9] See Trascher v. Territo, 89 So.3d 357, 362 (La. 2012) (“Where opposing party never has the opportunity to cross examine the deponent, troubling ramifications are presented because this violates a party’s fundamental right to cross-examine witnesses against him.”).

[10] Derewecki v. Pa. R.R. Co., 353 F.2d 436, 438 (3d Cir. 1965).

[11] Id. at 445.

[12] Id. at 442–43; see also Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 727–28 (9th Cir. 1969) (“[A]ppellant has not shown that cross-examination would have helped it materially.”); Fuller v. Rice, 70 Mass. 343, 345 (1855) (“If substantially complete,… [the deposition] ought not to be rejected, but submitted to the jury with such observations as the particular circumstances may require.”).  

[13] A similar risk is presented by the decision to question the deponent in a discovery deposition differently than you might have done at trial.  Such differences in approaches are not a ground to suppress the use of a discovery deposition at trial when the deponent has died.  See Wright Root Beer Co. v. Dr. Pepper Co., 414 F.2d 887, 889-91 (5th Cir. 1969); Rosenthal v. Peoples Cab Co., 26 F.R.D. 116 (W.D. Pa. 1960). 

[14] French v. A.W. Chesterton Co., No. 1:16 CV 1777, 2017 WL 4737260, at *1 (N.D. Ohio Oct. 18, 2017).

[15] Id. 

[16] Id. at *2. 

[17] Id. 

[18] Id.