CIVIL ACTION No. 00-2928.
June 3, 2002.
During a status conference held in this case on January 31, 2002 this Court was apprised that plaintiffs counsel had been unable to contact plaintiff since February 2001. The Court advised counsel for both parties to conduct research on the status of the trial should the plaintiff not be reached by that date. In response, and presently before this Court, are defendant's (1) Motion in Limine seeking to preclude plaintiff from introducing his deposition into evidence at trial in lieu of his live testimony (rec. doc. 47) and (2) Motion to Dismiss plaintiffs claims pursuant to Federal Rule of Procedure Rule 37(b)(2) due to plaintiffs failure to participate in discovery including his failure to appear at a Court ordered independent medical examination and vocational rehabilitation evaluation. The Court has reviewed the memoranda, plaintiffs deposition, and relevant law and finds that both motions should be DENIED.
Plaintiff initiated suit to recover damages under the Jones Act for injuries to his hand and neck allegedly sustained in two separate accidents while he was employed by defendant, Sea Support Services and working on its vessel, the M/V MELINDA B. ADAMS. Specifically, plaintiff maintains that he injured his: (1) left hand in a crane accident on or about April 1, 2000 when a crane operator mishandled the crane ball and crushed his hand while he was unloading cargo and (2) neck on or about August 16, 2000, when he fell down stairs while going below deck to the engine room. It is defendant's position, however, that plaintiffs complaints are not credible and that his injuries pre-existed his employment with defendant.
Because plaintiff has not been seen or heard from since February 2001, plaintiffs counsel has requested that this Court permit his deposition to be admitted at trial in lieu of live testimony from plaintiff.
Motion in Limine
Federal Rule of Civil Procedure Rule 32(a)(3)(B) permits the deposition of a witness, including a party, to be used in court proceedings if it is proved "that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition."
Rule 32 also permits the introduction of deposition testimony in lieu of live testimony when the witness is dead, the witness is unable to attend or testify because of age, illness, infirmity or imprisonment, the party offering the deposition has been unable to procure the attendance of the witness by subpoeana or when exceptional circumstances exist.
Defendant argues that because plaintiffs whereabouts are unknown, plaintiffs counsel can not carry the burden of proving that plaintiff is more than 100 miles from the place of trial. Citing Frazier v. Forgione, 881 F. Supp. 879 (W.D.N.Y. 1995). Plaintiffs counsel candidly admits that they have repeatedly tried, and failed, to locate plaintiff. However, they argue that it is reasonable for this Court to conclude that plaintiff is more than 100 miles from the place of trial for several reasons including: (1) all of the previous places that plaintiff has lived within 100 miles of the courthouse have been vacated, (2) he was last seen in Texas, and (3) "the last hint of his whereabouts was in Virginia." Opposition to Motion in Limine. p. 3. Plaintiffs counsel advised the Court that hired private investigators and contacted plaintiffs father in Virginia attempting to locate plaintiff — all to no avail. The Court also notes that plaintiff (1) indicated in a statement given during discovery that he possessed a Texas licence and (2) explained in his deposition that while his address was in Mandeville, he was actually living in a camper in Texas. Recorded Statement of Plaintiff by Pierre Gautreaux with Tidelands Adjustment Services for defendant, p. 2 and Plaintiffs Deposition p. 13-15.
The Court notes that there is scarce jurisprudence to help resolve the issues presented in plaintiffs motion in limine. It is clear that depositions may be introduced in lieu of live testimony when. However, as was candidly noted in Wright and Miller, Federal Practice and Procedure § 2147, p. 179-80, "the controversy has been whether a party can introduce his own deposition because he is more than 100 miles from the place of trial at the time of the trial" under Rule 32(a)(3)(B). The weight of the cases, however, tends to allow the introduction deposition testimony in lieu of a live appearance, when the witness is over 100 miles from the courthouse, so long as the absence of the witness was not procured by the party offering the deposition. See for example Stewart v. Myers, 353 F.2d 691 (1965) (affirming decision of trial court to allow the deposition testimony of a defendant, even though her location at the time of the trial was unknown, when her last known address was more than 100 miles away and there was no proof that her absence was procured by defendant), Houser v. Strap-On Tools, Co., 202 F. Supp. 181 (D.C. Md. 1962) (holding that a corporate party can introduce depositions of its officers, which it had taken as witnesses, when they were more than 100 miles away, so long as it took no active steps to keep the deponents from the courtroom) and Richmond v. Brooks, 227 F.2d 490 (2nd Cir. 1955) (reversing the decision of the trial court dismissing California plaintiffs cause of action after the trial court prohibited plaintiff from introducing her deposition testimony in lieu of live testimony at the New York trial and reasoning that the fact that plaintiff could not afford a flight to New York from California should not cause her to lose her cause of action).
Further, courts have been given latitude to consider all circumstances surrounding a party's absence from trial to determine whether to allow the use of deposition, rather than live, testimony. Wright and Miller,Federal Procedure and Practice, § 2147, p. 182 citing for example Vevelstad v. Flynn, 230 F.2d 695 (9th Cir. 1956) (holding that a court properly refused to let party use his deposition at trial when he had voluntarily left the United States before the trial and the contents of the deposition were wholly unimportant to the case).
In the case at bar, the Court has considered all surrounding circumstances and will permit plaintiff s counsel to introduce plaintiffs deposition at trial in lieu of his live testimony because he is over 100 miles from the place of trial. As noted above, plaintiffs counsel has attempted tirelessly to locate plaintiff at every known address he has had within 100 miles of the courthouse. The last documented location of plaintiff presented to this Court was his presence in Texas at the time of his deposition — where he was living in a camper. Thus, while it is true that no one knows exactly where plaintiff is at the present time, it is reasonable for the Court to conclude that he is more than 100 miles from the place of trial.
Further, the Court notes that, because this is a non-jury trial, it can judge the credibility of the defendant's deposition testimony in light of all circumstances. See for example Shedd-Bartush Foods of Illinois v. Commodity Credit Co., 135 F. Supp. 78 (D.C. Ill. 1955) (admitting plaintiffs deposition of its own officers even though they were largely conclusory and self-serving because it was a non-jury trial and the judge could consider them "for what they were worth") and Glaverbel Societe Anonyme v. Northlake Marketing Supply, 139 F.R.D. (N.D. Ind. 1991) (admitting plaintiffs employees' deposition testimony in lieu of their appearances at trial and noting that their failure to testify in person would be considered in determining the appropriate weight of the deposition testimony).
Moreover, seaman have traditionally been treated as wards of the Court and their rights have been zealously protected. See Jernigan v. Lay Barge Delta Five, 296 F. Supp. 127 (S.D. Texas 1969) citing The Osceola, 189 U.S. 158 (1903), and Vaughan v. Atkinson, 369 U.S. 527 (1962).
Finally, the Court notes that defendant has not demonstrated that it will suffer any prejudice by this Court's decision to allow plaintiffs deposition testimony to be introduced at trial. As discussed more fully below, plaintiffs counsel has agreed to seek recovery only for plaintiffs maintenance and cure and damages suffered up until the time he disappeared. Before his disappearance, defendant was able to depose plaintiff and to have plaintiff examined by one of its chosen physicians. Without any demonstrated prejudice to defendant and this Court's conclusion that plaintiff is over 100 miles from the place of trial, the Court DENIES defendant's Motion in Limine.
Motion to Dismiss
From information gathered through discovery, defendant suspected that plaintiffs complaints were not credible and scheduled him to be evaluated by an independent medical examiner and a vocational rehabilitation expert. Plaintiff did not appear for either evaluation and defendant has moved this Court to dismiss plaintiffs case based on his failure to participate in discovery. The Court concedes that it may dismiss a matter when a party has failed to obey an order to provide or permit discovery. However, the Court notes that it is an extreme remedy and does not find it appropriate in the case at bar.
Soon after plaintiff filed his complaint, he was seen by a neurosurgeon selected by defendants and was operated on by that physician. After his surgery, defendant deposed plaintiff and was able to glean his version of: (1) the facts surrounding the accidents and (2) the nature and extent of his injuries. After the deposition, however, plaintiff failed to attend additional medical and vocational examinations where defendant hoped that it evaluate plaintiffs future medical and vocational status. Thus, defendant argues that it has been prejudiced "by plaintiffs action and [is] being forced to defend a case without being able to obtain accurate information about the plaintiff from any source." Motion to Dismiss, p. 5.
As a result of plaintiffs disappearance and failure to attend independent evaluations scheduled by defendant, plaintiffs counsel has agreed not to pursue any future damages.
Federal Rule of Civil Procedure Rule 37 permits a Court to dismiss an action or proceeding when a party fails to obey and order to provide or permit discovery. As noted by defendant, there are four factors that a court should consider when determining whether to dismiss a case as a sanction for violating a discovery order. Those factors include: (1) the willfulness or bad faith of a party accompanied by a clear record of delay or contumacious conduct, (2) whether the discovery violation is attributable to the client or the attorney, (3) whether the violating party's misconduct substantially prejudiced the other party, and (4) whether a less severe sanction would achieve the same result. FDIC v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994).
Beyond plaintiffs disappearance, there is no "record of delay or contumacious conduct" by plaintiff before this Court. Further, the Court finds that plaintiffs counsel's offer not to seek any future damages cures any prejudice alleged by defendant as a result of plaintiffs failure to attend scheduled examinations with defendant's experts after his deposition. Thus, the Court finds that dismissal of plaintiffs cause of action is not an appropriate sanction in the case at bar.
IT IS ORDERED that defendant's Motion in Limine is DENIED.
IT IS FURTHER ORDERED that defendant's Motion to Dismiss is DENIED.