Preserving Deposition Objections

Posted on November 1, 2015 | Filed under: Discovery

In a recent case now concluded, I revisited the law governing deposition objections.   My review reminded me about the risk of waiver created by undue passivity in a deposition.

In every deposition taken lurks the possibility that it will be offered into evidence at trial.  Depositions of parties, treating physicians and other persons identified in Va. Sup. Ct. R. 4:7 may be introduced into evidence at trial. Witnesses can move and die between deposition and trial.   For this reason, vigilance is demanded during a deposition to ensure that appropriate objections are made and preserved.  Otherwise, a waiver may defeat a party’s trial objection to admission of deposition testimony.

Examination and cross-examination of deposition witnesses may proceed as permitted at trial. Va. Sup. Ct. R. 4:5 (c).  “Objections to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.”  Va. Sup. Ct. R. 4:7 (3) (C).  If the objection is to the form of a question and might have been cured (eg., leading question, lack of foundation), a contemporaneous objection must be stated with reasonable certainty in accordance with Virginia Rule of Evidence 2:103 (a) (1).

Errors occurring during the deposition in the form of questions or answers and errors of any kind which might be obviated, removed if promptly presented, are waived unless seasonable objection thereto is made at the deposition.  Va. Sup. Ct. R. 4:7 (3) (B).   According to the Supreme Court, “during a deposition, when an error in the form of a question by counsel or of an answer given by a witness can be cured by a timely objection, the objection must be stated timely or will be deemed waived.”  Graham v. Cook, 278 Va. 233, 246, 682 S.E.2d 535, 542 (2009).

In addition to being timely, objections must be specific.  One of the reasons for requiring a specific contemporaneous objection is to afford the opposing party to meet the objection.   Graham, 278 Va. at 248, 682 S.E.2d at 543; Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 168, 427 S.E.2d 724 (1993).  Simply saying “Objection, foundation” or “Objection, form” is insufficient.  See Arnold v. Wallace, 283 Va. 709, 714, 725 S.E.2d 539, 542 (2012); Jones v. Ford Motor Co., 263 Va. 237, 259, 559 S.E.2d 592, 603-04 (2002).  Accordingly, in instances in which  counsel merely states “Objection, form” or “Objection, no foundation” to a question during the deposition, the objection lacks the required specificity to support a subsequent motion to exclude from trial evidence the deposition testimony at issue.

The complaints voiced about “improper hypothetical” and “speculative”  without  any specifics about the alleged foundational flaws will not preserve an objection for the consideration of the trial court.  “General objections to questions of this character are of little aid to the trial court. If matters are stated which ought to be excluded, or if matters are excluded which ought to be stated, the objection should be so framed as to show just what the trouble is.”  Flannagan v. Nw. Mut. Life Ins. Co., 152 Va. 38, 70, 146 S.E. 353, 362 (1929).

If there be any material fact or testimony omitted in a hypothetical question posed to the deponent, it is the duty of opposing counsel to clearly indicate such defects, to enable such omissions in the question to be remedied, so as to enable the deponent  to answer the question after being fully and definitely informed of all such material facts.  See Bowen’s Ex’r v. Bowen, 122 Va. 1, 5, 94 S.E. 166, 167 (1917).

Courts have campaigned with good reason against the vice of “speaking objections” which improperly coach witnesses and thwart the orderly and efficient course of a deposition. Any objection must therefore be stated concisely in a nonargumentative and nonsuggestive manner.  Va. Sup. R. 4:5 (c).  Between no objection and speaking objections space exists for lawyers to make an objection pointing out with specificity the flawed nature of a question.  Failing to so state specific objections curable at the time of the deposition waives any right to object at trial when the deposition is offered into evidence.

2015 Update of Tom’s Expert Discovery in Virginia

Posted on November 1, 2015 | Filed under: Blog

Tom served as a panelist on  State and Federal Civil Practice – “Expert Witnesses: Considerations in Federal & State Court” at the October 22, 2015 annual Richmond Bench Bar Conference.  Tom updated his book chapter on Expert Discovery in Virginia copyright © 2013, Virginia Law Foundation, all rights reserved, for the Conference.  You may view and download this latest edition of Tom’s Expert Discovery in Virginia.

Tom Williamson Named in 2016 Best Lawyers in America

Posted on August 21, 2015 | Filed under: About our Lawyers

Best Lawyers® has announced that Tom Williamson has been selected by his peers for inclusion in the 22nd Edition of The Best Lawyers in America® for his work in the practice areas of Medical Malpractice Law-Plaintiffs and Personal Injury Litigation-Plaintiffs. Tom has been included in The Best Lawyers in America® for the last 26 years.

Super Lawyers 2015 Selects Tom Williamson

Posted on May 15, 2015 | Filed under: Lawyer News

Super Lawyers Magazine listed Tom Williamson in its 2015 Annual List Top Attorneys In Virginia & West Virginia Personal Injury Medical Malpractice Plaintiff.

Tom Williamson Presents At “Trial Start To Finish”

Posted on September 16, 2014 | Filed under: About our Lawyers

Tom Williamson will be conducting a demonstration on how to cross examine physicians who have performed defense medical examinations on September 23, 2014 at the Virginia Trial Lawyers Association Seminar Trial Start To Finish.   The Seminar will feature some of Virginia’s most skilled and effective advocates doing what they do best, from voir dire to closing argument.   In addition to the demonstration, Tom and his fellow presenters will share with the audience the insights into their strategies and field questions.   The Seminar will be held at the Crown Plaza Hotel in downtown Richmond.

Tom Williamson Named in 2015 Best Lawyers In America

Posted on August 23, 2014 | Filed under: Lawyer News

Best Lawyers® has announced that Tom Williamson has been selected by his peers for inclusion in the 21st Edition of The Best Lawyers in America® for his work in the practice areas of Medical Malpractice Law-Plaintiffs and Personal Injury Litigation-Plaintiffs. Tom has been included in The Best Lawyers in America® for the last 25 years.

Tom Williamson Discusses Latest “Reliable Authority” Case

Posted on June 23, 2014 | Filed under: Blog

Reading into evidence statements from reliable authorities has been an increasingly popular practice since Virginia’s 1992adoption of a modified version of Federal Rule of Evidence 803 (18).   By amending Va. Code § 8.01-401.1 to include a more liberal approach to use of learned treatises at trial, Virginia joined most jurisdictions in permitting introduction into evidence of the contents of publications deemed reliable authorities by an expert witness as substantive evidence in addition to the common law usage to impeach on cross examination the credibility of adverse expert witness’ testimony.

Expanding evidentiary usage of learned treatises raised the question of how much judicial scrutiny of the publication itself should precede its introduction into evidence.   Once a qualified expert witness laid the foundation that the publication was a reliable authority was the reading into evidence of statements from the publication a done deal?  Or, should the trial judge review the statement itself to determine whether it was reliable?

I have always felt that the historical skepticism towards the opinions of experts manifested by the Supreme Court of Virginia would lead the Court to directing trial judge to scrutinize the statement itself for trustworthiness.  My forecast became reality with the issuance of Harman v. Honeywell Int’l, Inc., 2014 Va. LEXIS 97 (Va. June 5, 2014).

In Harman, an aviation product liability action against the manufacturer of the plane’s autopilot’s system, the trial court admitted into evidence as a reliable authority the aircraft manufacturer’s accident investigation report.   The defendant’s expert witness read into evidence statements from the report over the hearsay objection of the plaintiff.   The Supreme Court held the report was not admissible under the “reliable authority” exception to the hearsay rule memorialized in Va. Code § 8.01-401.1 and Va. R. Evid. 2:706(a).

Although the defense expert witness failed to lay a foundation by testifying the report was a reliable authority, the report would not have been admissible even if the expert had uttered the magic words.  According to the Court, the report simply was not a treatise, periodical or pamphlet on a subject of science.   The report was prepared for litigation purposes by the aircraft manufacturer who was a party defendant at the time of preparation and not subjected to peer review or public scrutiny.   The report therefore lacked the reliability necessary to be a learned treatise.

In holding the report was not a reliable authority, the Supreme Court voiced its longstanding concern about expert’s opinions admitted without cross examination by quoting from a case in which I represented the plaintiff and my objection to admitting hearsay opinions in medical records was sustained:

This Court has long recognized the dangers of admitting hearsay expert opinion testimony. See McMunn v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912, 5 Va. Law Rep. 2285 (1989) (“The admission of hearsay expert opinion without the testing safeguard of cross-examination is fraught with overwhelming unfairness to the opposing party.”).

Harman v. Honeywell Int’l, Inc., 2014 Va. LEXIS 97, 9, n. 4 (Va. June 5, 2014).

Harman informs us that “learned treatises” must be scrutinized carefully prior to admission to ensure against unfair prejudice.   This inquiry should examine not only the reliability of the publication but the substance of the statements.  The proffered statements should be relevant, competent evidence to the same extent as if the author was a witness endeavoring to testify.

For example, in a medical malpractice case, an expert witness should not have been permitted to testify about the statistical frequency of perforation during colonoscopies because such raw statistical evidence alone was not probative of the issue of whether the perforation at issue was caused by negligence.   Holley v. Pambianco, 270 Va. 180, 613 S.E.2d 425 (2005). The same information contained in published literature deemed a “reliable authority” would similarly be inadmissible.  The same objection to admissibility due to lack of relevancy should be made as to the item of literature as was made to proffered testimony of the live witness.

If a foundation is laid that the literature is reliable and it passes muster as being relevant competent evidence, the next step is to question how much weight a jury should give to the statement lifted out of the publication.   When a hearsay statement has been admitted into evidence, its credibility (and the credibility of its author) may be attacked by the same tools of impeachment available to impeach the testimony of a trial witness.   Va. R. Evid. 806.  Possible means of impeachment would include:

  • Pointing out deficiencies or dissimilarities in the methods of the research.
  • Showing the cited articles relied upon by the author do not support the conclusions.
  • Introducing into evidence other statements made by the author contradicting the admitted statement.
  • Introducing evidence attacking the qualifications of the author.
  • Introducing evidence of bias on the part of the author.

Harman also offers guidance on another frequent controversy.   What is the meaning of “reliable authority”?   Experts, seeking to evade cross examination with statements from publications, frequently refuse to concede the publication is a “reliable authority”.   Harman makes clear that reliable authority is a judicial determination based on facts and an expert cannot simply say a publication is or is not “authoritative”.   Importantly, Harman  employs the phrase “a reliable source typically used by experts in his field” in its discourse about what is admissible under the terms of Va. R. Evid. 2:706(a).  Harman, 2014 Va. LEXIS at 11-12.  If an expert admits the author is respected, the publication is used in practice and teaching, the Court can find it to be reliable and permit cross examination despite the expert’s stubborn refusal to agree it is an “authority”.  Other jurisdictions have refused to permit experts to self define “reliable authority” in such a manner to avoid cross examination with published statements.  See Freshwater v. Scheidt, 714 N.E.2d 891 (Ohio 1999); Allen v. Safeco Ins. Co. of America, 782 F.2d 1517, 1519 (11th Cir. 1986).


Tom Williamson Selected 2014 Super Lawyer

Posted on June 21, 2014 | Filed under: Blog

Super Lawyers Magazine in its 2014 Virginia & West Virginia edition listed Tom Williamson as one of the top lawyers in the representation of plaintiffs in medical malpractice.   This selection was based upon a nomination by peers, independent research and a review by the attorneys receiving the highest totals in each category.

Williamson Recipient of Murray Janus Professionalism Award

Posted on May 27, 2014 | Filed under: Lawyer News

The John Marshall Inn of Court has named Tom Williamson as the first recipient of its Murray Janus Professionalism Award.  The award is named after the late Murray Janus, a founding member of the John Marshall Inn of Court and one of the most respected lawyers of the Richmond, Virginia Bar.  The Award honors its recipient for Professionalism, Mentoring and Perseverance.   Tom received the Award at the annual banquet of the Inn and shared with the attendees some recollections about his interaction with Murray as a young lawyer.

Tom Williamson To Present on Discovery of Experts

Posted on May 27, 2014 | Filed under: Lawyer News

Tom Williamson will be on the faculty of the Civil Discovery in Virginia seminar to be presented live in Fairfax and Richmond, Virginia on June 3 and 4, 2014.  Tom will present on the topic  of the discovery of experts.   Tom authored the “Discovery of Experts” chapter of the popular Virginia Lawyers Practice Handbook, Civil Discovery in Virginia (2013 ed.).

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