Southern District of Mississippi Finds a Successful Physician Who Would Need to Temporarily Shut Down His Practice to Testify is Not "Unavailable"

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

But, before "former testimony" is admissible under Rule 804(b)(1), the declarant must be deemed "unavailable" under Rule 804(a). So is a successful and busy doctor "unavailable" if he would have to shut down his practice for an extended period to testify? That was the question addressed by the United States District Court for the Southern District of Mississippi in its recent opinion in Stonestreet v. United States et al., 2021 WL 1268375 (S.D.Miss. 2021).

In Stonestreet, 

June Stonestreet allege[d] that she fell while reaching for a carton of eggs at the Commissary of Keesler Air Force Base in Biloxi, Mississippi on May 3, 2018....Plaintiff allege[d] that her resulting injuries were caused by the negligence of Keesler Air Force Base, which conduct she attributes to Defendant, the United States of America.

Before trial, Stonestreet moved to introduce video deposition testimony by her treating physician Dr. Matthew Lewis in lieu of live testimony. In denying this motion, the court ruled as follows:

Plaintiff maintains that there are “exceptional circumstances” justifying the use of Dr. Lewis's video deposition in place of live testimony, as he “is a successful and busy orthopedic surgeon,” such that live testimony would “require[e] him to shut down his practice for an extended period,” which “is unduly burdensome.”...However, a physician's busy schedule is generally not considered an exceptional circumstance warranting the use of deposition testimony. See Krase v. Jialiang Qi, No. CV417-166, 2020 WL 4016250, at *3 (S.D. Ga. July 16, 2020) (“Neither have courts recognized doctors' often busy schedules as, alone, sufficient to create an exceptional circumstance.”). The Court concludes that the Fifth Circuit's stringent interpretation of Rule 32 disfavors a finding that a physician's busy schedule amounts to an “exceptional circumstance.” See, e.g., Hegwood v. Ross Stores, Inc., No. 3:04CV2674-BH-G, 2007 WL 102994, at *2 (N.D. Tex. Jan. 16, 2007) (finding that a physician's busy schedule is not an exceptional circumstance justifying substitution of his video deposition for live testimony).

Thus, Plaintiff has not demonstrated an exceptional circumstance justifying departure from the general rule in favor of live testimony. Neither has Plaintiff shown that Dr. Lewis is unavailable within the meaning of Federal Rule of Evidence 804.

-CM