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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DOROTHY HEGWOOD, et al., §

 §

Plaintiffs, §

 § 

v. § Civil Action No. 3:04-CV-2674-BH (G)

 § 

ROSS STORES, INC., §

 §

Defendant. § Consent Case

MEMORANDUM OPINION AND ORDER

Pursuant to the District Court’s Order of Transfer, filed February 22, 2005, and the consent

of the parties, this matter has been transferred to the undersigned United States Magistrate Judge for

the conduct of all further proceedings and the entry of judgment in accordance with 28 U.S.C. §

636(c). Before the Court are the following motions:

(1) Defendants Heavy Metal, Inc.’s and Ross Stores, Inc.’s Objections to Deposition

Testimony of Plaintiffs’ Expert, Dr. John Peloza, filed December 15, 2006; 

(2) Defendants Heavy Metal, Inc.’s and Ross Stores, Inc.’s Brief in Support of Their

Objections to the Deposition Testimony of Plaintiffs’ Expert, Dr. John Peloza, filed

December 15, 2006; 

(3) Appendix to Defendants Heavy Metal, Inc.’s and Ross Stores, Inc.’s Brief in Support

of Their Objections to the Deposition Testimony of Plaintiffs’ Expert, Dr. John

Peloza, filed December 15, 2006; 

(4) Plaintiffs’ Response to Defendants Heavy Metal, Inc.’s and Ross Stores, Inc.’s

Objections to Deposition Testimony of Plaintiffs’ Expert, Dr. John Peloza, and Brief

in Support, filed January 8, 2007; 

(5) Plaintiffs’ Application Under Rule 32(A) to Use the Deposition of John Peloza, M.D.

at Trial, filed January 9, 2007; and 

(6) Appendix to Plaintiffs’ Application Under Rule 32(A) to Use the Deposition of John

Peloza, M.D. at Trial, filed January 9, 2007.

 

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The rule reads as follows: 

The deposition of a witness, whether or not a party, may be used by any party for any purpose if

the court finds: (A) that the witness is dead; or (B) 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; or (C) that the witness is

unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party

offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(E) upon application and notice, that such exceptional circumstances exist as to make it desirable,

in the interest of justice and with due regard to the importance of presenting the testimony of

witnesses orally in open court, to allow the deposition to be used.

FED. R. CIV. P. 32(a)(3). 

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After careful consideration of the pleadings and applicable law, Plaintiffs’ Application Under Rule

32(A) to Use the Deposition of John Peloza, M.D. at Trial should be, and is hereby, DENIED.

I. BACKGROUND

This is a personal injury action brought by Plaintiffs based on alleged injuries suffered by

Dorothy Hegwood when, while shopping at one of the stores owned by Defendant Ross Stores,

Inc. (“Ross”), she sat on a chair that collapsed. Heavy Metal, Inc. (“Heavy Metal) supplied the

chair in question and is joined as a Defendant in this lawsuit. Counsel for all parties were

present at the August 28, 2006 deposition of Dr. John Peloza, Plaintiffs’ treating physician. 

Plaintiffs indicated their intention to submit Dr. Peloza’s deposition for use at trial in the

December 27, 2006 witness list filed before the Court. In response to Defendants’ objection to

the designation of Dr. Peloza as a witness by deposition, Plaintiffs submitted the instant motion. 

Plaintiffs assert that exceptional circumstances exist for allowing Dr. Peloza to testify by

deposition instead of live testimony.

II. ANALYSIS

Federal Rule of Civil Procedure 32(a)(3) limits the use of a deposition at trial to when the

witness is unavailable or if exceptional circumstances exist. FED. R. CIV. P. 32(a)(3).1

 “A

 

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Plaintiffs do not contend that Dr. Peloza is unavailable as determined by FED. R. CIV. P. 32(a)(3)(A-D). 

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Plaintiffs cite Reber v. General Motors Corp., 669 F.Supp. 717 (E.D. Pa. 1987), in support of why Dr.

Peloza’s videotaped deposition should be allowed in lieu of his live testimony. (Mot. at 4.) This twenty year old,

out of circuit case is easily distinguishable from the instant case in that the parties in Reber unconditionally agreed to

present the testimony by means of videotape. (Id. at 720.)

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deposition is an acceptable substitute for oral testimony when in-court observation of the witness

is extremely difficult or virtually impossible.” Jauch v. Corley, 830 F.2d 47, 50 (5th Cir. 1987). 

The burden of establishing the unavailability of a witness or exceptional circumstances rests with

the party seeking to introduce the deposition. Id. 

In the instant case, Plaintiffs seek to introduce the deposition of the treating physician on

the basis of exceptional circumstances.2

 Plaintiffs provide three reasons for why Dr. Peloza’s

deposition should be allowed. The first is that Dr. Peloza is a defendant in a state court case set

for trial on Tuesday, January 23, 2007, the day after the instant case is scheduled to begin. The

second reason is that Dr. Peloza maintains an active medical practice and that his appearance at

court would inconvenience his patients. The final reason is that Plaintiffs estimate that it will

cost approximately $10,000 to have Dr. Peloza testify at trial since he charges $4,000 per hour

for trial testimony, plus $600 for document review. 

None of the reasons provided by Plaintiffs rises to the level of an “exceptional

circumstance,” especially in light of the importance of presenting Dr. Peloza’s testimony in open

court.3 Dr. Peloza’s possible appearance in a state court matter on Tuesday, January 23, 2007, is

neither a conflict nor an exceptional circumstance since he could testify on Monday, January 22,

the first day of trial for the case before the Court, or his testimony could be scheduled around the

state court matter. The Court notes that Dr. Peloza appears to have scheduled appointments

during the scheduled state court matter based on the argument that requiring him to appear

 

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Plaintiffs also cite Robinson v. Food Service of Belton, Inc. in support of its assertion that the Court

consider cost in determining exceptional circumstances. 415 F.Supp.2d 1232 (D. Kan. 2005.) This case is

inapplicable for two reasons. The first is that the deposition permitted in lieu of live testimony was from a witness

unavailable pursuant to FED. R. CIV. P. 32(a)(3)(B) because her reserve unit was activated for military training in

another state. The second is that the value of the claim amounted to $500, which is far less than Plaintiffs’ claims. 

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would present an inconvenience to his patients. Any inconvenience to Dr. Peloza’s patients

likewise is not an exceptional circumstance, particularly since this Court set the trial date for this

case more than six months ago. (See Third Amended Order Regarding Case Management and

Scheduling, Hegwood v. Ross Stores, Inc., No. 3:04-CV-2674-BH (N.D. Tex. issued July 5,

2006.)) Plaintiffs thus had ample time to notify Dr. Peloza of the trial date and for Dr. Peloza to

reschedule any appointments, if necessary.

Plaintiffs’ final grounds for “exceptional circumstances” is that Dr. Peloza’s in-court

testimony is estimated to cost approximately $10,000. In support of this argument, Plaintiffs cite

Borchardt v. United States where the court found exceptional circumstances when live testimony

would cost up to $1,250 for a claim with a value of $12,402.19. 133 F.R.D. 547 (E.D. Wis.

1991.) From the filings in the instant case, Plaintiffs claims exceed $300,000. Applying the

Borchardt analysis, which found that live deposition testimony amounting to approximately 10%

of the value of the claim constituted an exceptional circumstance, Dr. Peloza’s testimony would

have to cost $30,000. At roughly 3% of the minimum value of Plaintiffs’ claim, the cost of Dr.

Peloza’s testimony does not rise to an exceptional circumstance, even if the Court were to apply

the Borchardt analysis.4

 Plaintiffs fail to cite any Fifth Circuit case law indicating that cost is a

factor for when it is acceptable for a deposition to eclipse the importance of testimony in open

court before the jury. Plaintiffs have therefore failed to meet their burden of showing that the incourt testimony of Dr. Peloza is “extremely difficult or virtually impossible” to obtain. Jauch,

 

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830 F.2d at 50. 

III. CONCLUSION

For the foregoing reasons, Plaintiffs have failed to establish that exceptional

circumstances exist as to warrant the admission of Dr. Peloza’s deposition in lieu of his

testimony in open court. Therefore, Plaintiffs’ Application Under Rule 32(A) to Use the

Deposition of John Peloza, M.D. at Trial is hereby DENIED.

SO ORDERED on this 16th day of January, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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