Orusevic v. Fletcher Allen, No. S0037-02 Cncv (Katz, J., Aug. 23, 2004)



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STATE OF VERMONT
Chittenden County, ss.:

ORUSEVIC

v.

FLETCHER ALLEN



                                 ENTRY
                            (Motion in Limine)

       Evidence Rule 103(a)(1) requires a timely objection “stating the
specific grounds of objection.” Here, defense counsel timely stated
“objection,” but gave no more explanation.

       In the context of depositions, it is common for attorneys to simply
“object.” Mostly this is to the form of the question, “an invocation of
discretion.” 21 C. Wright & K. Graham, Federal Practice and Procedure §
5036, at 176 (1977). Although this was explicitly not a discovery
deposition, but one for the preservation of testimony, How was plaintiff
counsel to know the objection was more than a merely discretionary
invocation to the form of the question? He could have asked. Knowing
counsel, we assume he would have been told. But, the law should not be
based on a small-town judge’s presuming to know well his steady
customers.

       The situation here objected to was counsel’s failure to phrase
questions in terms of “the standard of care.” Indeed, it could probably have
been cured by a single prefatory comment: “Dr. Deponent, whatever
question I may ask, assume it is in reference to the standard of care.”
Defense counsel could also easily have stated, “Objection; question posed
in terms of what deponent would have done, not in terms of the standard of
care.”

        In the context of a preservation deposition, we conclude that
Evidence Rule 103(a)(1) must apply. See In re Diet Drugs, 2000 WL
876900, at *7 (E.D.Pa.) (noting that preservation depositions are subject to
the Rules of Evidence as well as issues of state substantive law); Basham v.
Clark, 115 Wash.App. 1024 (Wash.App. 2003) (upholding exclusion of
testimony from a preservation deposition based on timely, specific, and
constructive objections). Defense counsel had the obligation to state the
specific grounds of the objection. State v. Bissonette, 145 Vt. 381, 392
(1985) (“There are three primary purposes for objections: to let the
opponent correct the error, to inform the court so it can rule intelligently
and quickly, and to reduce the necessity for reversal and new trial.”).
Counsel did not. It was not obvious from the context. See 21 Wright &
Graham, § 5036, at 174, 179 (discussing the so-called “Schwartz proviso”
to the rule for when the grounds are apparent). This was also not a
particularly leading examination. The testimony elicited was not
inadmissible hearsay. Stating the grounds at the deposition would have
been simple, constructive, and not a repetition of the obvious.




      Dated at Burlington, Vermont________________, 2004.




                                        ________________________
                                        Judge
