Tom Lang Shares Best Practices for Responding to Plaintiff Using Client's Deposition in a Medical Malpractice Trial

January 15, 2018
Featuring Thomas A. Lang
Thomas Lang recently shared best practices on the strategic response to client deposition use at trial by a plaintiff broadly in this piece published in Professional Liability Defense Quarterly, and drilled down to Illinois-specific guidance in the piece below.

Illinois Law and Strategic Responses to Client Deposition Use at Trial by Plaintiff

By Thomas Lang
Cunningham, Meyer & Vedrine P.C.

In medical negligence cases, plaintiffs’ counsel will often call the defendant doctor as an adverse witness during plaintiff’s case in chief, in order to elicit damaging admissions, and to start the trial on by putting the defendant immediately on the defensive. However, this practice seems to be evolving. Putting the defendant doctor on the stand as the first witness or one of the first witnesses in a trial allows plaintiff to “strike first” in eliciting concessions and admissions from the defendant. However, this practice also allows a tactical opportunity for the defendant physician. As the first witness in the case, the defendant is the first physician – the first qualified expert – to educate the jury and frame the medical issues at the heart of the case, and explain his or her conduct. A defendant who is well spoken, thoughtful and sympathetic will generally be able to convey those qualities to a jury, even under cross examination, and certainly upon re-direct.

Accordingly, it is becoming more and more common for the plaintiff’s bar to use the deposition testimony of the defendant physicians as substantive evidence at trial, by playing or reading substantial excerpts of the defendant’s deposition testimony to the jury. While it is axiomatic that admissions of a party are admissible at trial and are not considered hearsay, there is a difference between opposing counsel using a ten second video clip of a defendant doctor’s deposition testimony as a means of impeachment (something that can often be avoided altogether, with sufficient preparation) and playing several lengthy excerpts of the defendant’s deposition to the jury as substantive evidence, before the defendant is ever called to the stand.

If the use of deposition testimony at trial as substantive evidence is permitted, what can be done to prepare for and limit plaintiff’s use of the defendant’s testimony at trial? Using video deposition testimony as a means of impeachment can be prepared for and avoided by making sure your client is consistent in his trial testimony. Opposing counsel’s wholesale use of deposition testimony, given months or years before trial, sidesteps the defense counsel’s ability to prepare their client for cross examination, to clarify and give context to deposition testimony, and to respond to criticisms that arose after the deposition was given.

Basis for use of deposition testimony as substantive evidence at trial

Illinois Supreme Court Rule 212(a) states that discovery depositions may be used at trial for the following purposes:

(1) For the purpose of impeaching the testimony of the deponent as a witness
in the same manner and to the same extent as any inconsistent statement
made by a witness;

(2) As an admission made by a party or by an officer or agent of a party in the
same manner and to the same extent as any other admission made by that

(3) If otherwise admissible as an exception to the hearsay rule;

(4) For any purpose for which an affidavit may be used; or

See Ill. Sup. Ct. R. 212(a).

Illinois Rule of Evidence 801(d)(2) also provides a basis for use of party deposition testimony. Rule 801(d)(2) provides that statements offered against an opposing party are not hearsay if the statement is:

(A) The party's own statement, in either an individual or a representative capacity, or
(B) A statement of which the party has manifested an adoption or belief in its truth, or
(C) A statement by a person authorized by the party to make a statement concerning the subject, or
(D) A statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, or
(F) A statement by a person, or a person on behalf of an entity, in privity with the party or jointly interested with the party.

See, Ill. R. Evid. 801(d)(2).

Courts have consistently held that use of an opponent’s deposition as substantive evidence is permitted at trail. See, In re Rennick, 181 Ill. 2d 395, 406 (1998) (“An admission by a party is substantive evidence admissible as an exception to the rule excluding hearsay.”); Behrstock v. Ace Hose and Rubber Company, 147 Ill. App. 3d 76, 87 (1st Dist. 1986) Admissions are ordinarily admissible as original or substantive evidence of the truth of the statements made or of the existence of any facts which they have a tendency to establish. Security Savings and Loan Assn., v Commissioner of Savings and Loan Assn., 77 Ill. App. 3d 606, 610 (3rd Dist. 1979). An admission made by a party, or an officer or agent of a party in a discovery deposition, is admissible in the same manner and to the same extent as any other admission made by that person. Id. (emphasis added). See also, Pavlik v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060, 1065 (1st Dist. 2001) (statements made by an employee during the employment relationship about a matter within the scope of employment fall within the party exception to the hearsay rule and are admissible as substantive evidence at trial.) Even if the party whose testimony is being admitted is deceased, the use of the deposition as substantive evidence is still permitted as an admission of a party under Rule 212. Rennick, 181 Ill. 2d at 405.

While a statement is usually damaging to the party against whom it is offered, an admission does not need to be against the interest of the party, and any relevant statement is admissible as substantive evidence. Estate of Lewis, 549 N.E.2d 960, 964 (4th Dist. 1990.) Further, there is no foundation requirement predicating the introduction into evidence of admissions, including those contained in discovery depositions, and it is not necessary that the person making the admission be unavailable as a witness at trial. Security Savings and Loan Assn., 77 Ill. App. 3d at 610-611. The only admissibility requirement is that the admission be relevant to and have a material bearing on the issues of the case. Bargman v. Economics Laboratory, Inc., 181 Ill. App. 3d 1023, 1029 (3rd Dist. 1989). It is proper to exclude party admissions as substantive evidence at trial if the admissions are not relevant to trial issues. Gillson v. The Gulf, Mobile and Ohio Railroad Co., 42 Ill. 2d 193, 197 (1969).

Preparation at deposition and at the time of trial

Preparation for this potential use of a client’s deposition testimony starts at the time of the defendant’s deposition. At the time of deposition, the defendant does not have the benefit of knowing the full constellation of criticisms which could or will ultimately be offered against him or her, or the substance of testimony from other fact witnesses or other physicians involved in the care. There is only so much that can be anticipated for a deposition. However, the knowledge that the testimony can potentially be submitted as substantive evidence should impact the preparation for the deposition, and certainly impact the objections raised at deposition. The objections raised at deposition should be detailed, and offered with the mindset that the questions being asked, and the client’s responses, could be played verbatim to a jury at the eventual trial of the case.

At the time of trial, the party intending to use the testimony as substantive evidence will often raise the issue in a motion in limine. Ideally, the motion will contain the specific testimony that counsel intends to use at trial, allowing defense counsel the opportunity to raise a general objection to the use of the testimony, as well as specific objections as appropriate. However, it cannot be assumed that opposing counsel will take these steps, and disclose the specifics of what testimony they will use at trial. Accordingly, it may be worthwhile to affirmatively raise the issue in defendant’s motions in limine, in order to verify whether or not opposing counsel plans on using deposition testimony or statements by a party as substantive evidence, and identifying what specific testimony may be used.

In presenting this motion in limine, the point should be made that the use of defendant’s deposition testimony as substantive evidence differs from its use as impeachment (where notice requirements are much more lenient, to the extent that they exist at all.) Accordingly, the argument can be made that the substantive use of the testimony should properly be disclosed to all parties, in advance of its use, including the specific page and line citations to the deposition testimony.

Obtaining advance notice of the testimony to be offered by plaintiff serves two purposes. First, it allows you to lodge timely and appropriate objections to the evidence, before it is heard by the jury, and to preserve the record on appeal. Once the specific testimony has been identified, specific objections to the testimony should be raised at the time that the testimony is offered into evidence, not just when the general concept is raised during motions in limine. Objections based on relevance, cumulative nature of the testimony, form of the question, rule of completeness, prejudice, etc., may all be appropriate, and should be offered for each specific instance in which they apply. Again, it is crucial to know the specifics of what plaintiff plans on presenting to the jury, in order to preserve all these objections at the time the testimony is being offered into evidence.

Second, (just as importantly) obtaining advance notice of the specific testimony to be introduced by opposing counsel allows you an opportunity to prepare your own submissions of the client’s testimony to the jury, and/or to make an offer of proof as to what testimony you would submit to the jury, in order to “complete the narrative” of the testimony being offered by plaintiff, or to demonstrate that it is being taken out of context. (See, Ill. R. Evid. 106, “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”) In Morse v. Hardinger, 34 Ill. App. 3d 1020, 1025 (4th Dist. 1976) the court noted that when considering the admission of discovery deposition testimony as an admission, the court must decide whether there is other testimony which must in fairness be read to protect against a distorted impression of the testimony being offered by the party opponent. See, In re: Stewart, 274 Ill. App. 3d 298, 312 (1st Dist. 1995). (Once the party opponent uses a party’s deposition testimony, the party should be allowed to refer to the deposition testimony on redirect to clarify the use of the deposition testimony by opposing counsel.)

If there is a valid argument that the testimony being offered by opposing counsel requires, in fairness, the introduction of additional testimony, you should be prepared to have that testimony on hand, ready to submit to the jury. Objecting to the use of the testimony under the rule of completeness, or that the testimony is being taken out of context, without offering specific evidence as to what additional testimony is necessary to complete the story makes it difficult to argue on appeal that the defendant was prejudiced by the use of his or her deposition testimony as substantive evidence at trial. It goes without saying that parties and their attorneys need to be deeply familiar with the defendant’s deposition testimony going into trial. Knowing what specific portions of the defendant’s testimony is going to offered by plaintiff’s counsel to the jury as an admission will allow you to have your own excerpts at the ready for submission to the jury to clarify or complete the narrative. While an offer of proof can be made during defendant’s case in chief, making these offers at the time of plaintiff’s submission should be considered, in that the evidence offered in response to plaintiff’s submission will help inform the trial court and the appellate court as to the context of the testimony being offered and to demonstrate any potential prejudice on appeal.

Additionally, objections should also be considered if opposing counsel intends to use the party opponent testimony more than once during the course of trial (e.g., during opening statements, during the course of plaintiff’s case in chief, and then during closing arguments.) While opposing counsel can make reference to the admissions during opening statement and closing argument, the act of actually playing a video clip of your client’s testimony more than once can be objected to as cumulative evidence.

Use of Plaintiff’s Deposition Testimony

Finally, it cannot be over looked that the deposition testimony of plaintiff is just as ripe for use as substantive evidence at trial, and consideration should be made for introduction of that testimony in defendant’s case in chief. It could avoid a potentially messy cross examination, and eliminate the need to impeach a plaintiff who will refuse to agree to prior admissions made under oath. The fact pattern of every trial is different, and the use of deposition as substantive testimony depends on a variety of considerations, but if plaintiff’s bar is going to consistently use it as a tool at trial, defense counsel should be equally prepared.