UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

DOROTHY HEGWOOD, ET UX § 

HARRY HEGWOOD, § 

 Plaintiffs § 

 § 

VS. § CIVIL ACTION NO. 3:04-cv-2674-BH 

 § 

ROSS STORES, INC., § 

 Defendant. § 

PLAINTIFFS’ APPLICATION UNDER RULE 32(A) 

TO USE THE DEPOSITION OF JOHN PELOZA, M.D. AT TRIAL

TO THE HONORABLE JUDGE OF SAID COURT: 

 NOW COMES DOROTHY HEGWOOD et ux, HARRY HEGWOOD, hereinafter 

referred to as Plaintiffs, and file this their Application Under Rule 32(a) to Use the 

Deposition John Peloza, M.D., and in support thereof, would show the Court as follows: 

I. FACTS 

1. John Peloza is the orthopedic surgeon who treated Plaintiff Dorothy Hegwood for 

the injuries she sustained on September 17, 2004 that are the subject of this lawsuit. 

(App. 3 [Peloza Aff. ¶ 2]). He is a non-retained expert designated by Plaintiffs to testify 

about his treatment of Plaintiff. Dr. Peloza was deposed in this case on August 28, 2006. 

(App. 6-10 [Peloza depo. pp. 1, 2, 3, 5, 94]). The deposition was videotaped under the 

assumption that it would be used at trial. (App. 11 [Osburn Aff.]). Counsel for both 

Heavy Metal, Inc. and Ross Stores, Inc. attended the deposition. (App. 7-8 [Peloza depo. 

pp. 1, 2]). Forty Seven pages of the 91 page deposition transcript is Heavy Metal, Inc.’s 

cross examination of Dr. Peloza. (App. 11 [Osburn Aff.]). .Ross Stores, Inc.’s counsel 

also cross- examined the witness. (App. 11 [Osburn Aff.]). 2. 

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The deposition began at 5:00 p.m. and concluded in less than two hours. (App. 7 [Peloza 

depo. p. 1]). The Defendants, thus, had five more hours that they could have used to 

further question the witness. The Defendants have not sought leave to re-depose Dr. 

Peloza or continue the deposition. They had ample opportunity to ask everything they 

needed to know from Dr. Peloza. 

3, Dr. Peloza is a defendant in a case styled Vonda Brooks v. John H. Peloza, M.D., 

Cause No. 03-02-251-C in the 68th District Court of Dallas County, Texas. (App. 3-4 

[Peloza Aff. ¶ 2]). This lawsuit is scheduled to go to trial on January 23, 2007. (App. 3-4 

[Peloza Aff. ¶ 2]). His attorney, Doug Lewis of the firm of Chamblee and Ryan, has 

informed him that since the case in a 2003 case, the likelihood of this case being called to 

trial on that date is good. (App. 3-4 [Peloza Aff. ¶ 2]). The trial will likely last all of the 

rest of that week. (App. 3-4 [Peloza Aff. ¶ 2]). If the lawsuit against Dr. Peloza is called 

to trial on that date, he will be unable to testify live at trial in the present lawsuit. (App. 

_3-4 [Peloza Aff. ¶ 2]). 

4, Even if the case in the 68th District Court is not called to trial on January 23, 

2007, Dr. Peloza has a very active medical practice with a full patient schedule that week. 

(App. 4 [Peloza Aff. ¶ 3]). He has two clinic days each week in which he sees 40 to 50 -

patients per day. (App. 4 [Peloza Aff. ¶ 3]). He performs 2 to 4 surgeries on Tuesday, 

Wednesday and Thursday, which generally takes all day. (App. 4 [Peloza Aff. ¶ 3])¶ 

Many if not most of his patients are experiencing moderate to severe pain, and 

catastrophic bone and joint issues, and to cancel and reschedule their office visits or 

surgeries would work a significant hardship on his patients. (App. 4 [Peloza Aff. ¶ 3]). 

Therefore, even if he is not called to trial in the 68th Court, being required to attend 

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Dorothy Hegwood’s trial to testify live would unduly burden his patients who would 

have to be rescheduled to accommodate this. (App. 4 [Peloza Aff. ¶ 3]). 

5. Plaintiffs have has paid Dr. Peloza $1,500 for the two hours spent giving his 

deposition. (App. 4 [Peloza Aff. ¶ 4]). He charges $4,000 per hour for trial testimony, 

plus $600 for document review. (App. 4 [Peloza Aff. ¶ 4]). The reason he charges so 

much more for trial testimony is to discourage patients in litigation from calling him as a 

live witness at trial, because it requires him set aside time during which he cannot 

schedule and attend to patients. (App. 4 [Peloza Aff. ¶ 4]). His fee structure encourages 

litigants to present his testimony by deposition, because depositions can be scheduled 

after hours. The deposition in this case took place after hours. (App. 4 [Peloza Aff. ¶ 4]). 

II. ARGUMENT 

6. FRCP 32(a)(3)(E) provides that the deposition of a witness may be used at trial by 

any party for any purpose if the court finds such exceptional circumstances exist as to 

make it desirable, in the interest of justice with due regard to the importance of presenting 

the testimony of witnesses orally in open court, to allow the deposition. 

7. As discussed above, Dr. Peloza is a party in a trial set on the day after this trial, 

and his presence and full attention to that trial will be required if that case is reached. 

Even if his case is not called, Dr. Peloza testified in his affidavit that requiring him to 

testify live at trial would put an undue hardship on his patients, who would have to be 

rescheduled to accommodate his live testimony. Plaintiff contends that either scenario 

constitutes an exceptional circumstance justifying allowing Plaintiffs to present his 

testimony by videotaped deposition. 

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7. The court in Reber v. General Motors Corp., 669 F.Supp. 717 (E.D.Pa. 1987) 

addressed the exceptional circumstances rule. In Reber the plaintiffs in a personal injury 

case took the deposition of a treating doctor. The parties agreed that the doctors’ 

testimony could be presented live by videotape. The court opined as follows: 

Moreover, while the rule regulating the use of depositions at trial makes no such 

distinction, we are convinced that videotaped testimony prepared specifically for 

use at trial mitigates the concerns militating against the use of depositions in lieu 

of live testimony. First, although the witness is not physically present in the 

courtroom, the jury has the opportunity to observe his manner and hear his voice 

during the testimony. Second, the witness is questioned just as he would be at trial 

by counsel for both parties. 

Id. at 720. In this case, the deposition was videotaped, and Dr. Peloza was extensively 

questioned by Defendants in a cross examination similar to the type of cross that would 

be done a trial with a live witness. 

8. In Borchardt v. United States, 133 F.R.D. 547, 548 (E.D.Wisc. 1991) the court 

held that exceptional circumstances existed where it would cost $1,000 to $1,250 to 

present a doctor’s testimony live, but only $375 if the testimony was presented by 

deposition, particularly in view of the fact that the damages in the case were about 

$12,000. The court noted: 

[T]his court prefers to use the most cost-effective method of providing the facts to 

the fact-finder whenever possible. Dr. Konkel's testimony is important for 

establishing the medical injuries which Borchardt has experienced. There is not, 

however, any indication that the credibility of Dr. Konkel's testimony is in 

question. 

Id. In Ross Stores, Inc.’s Rule 32(a) objection, Ross raises no questions about Dr. 

Peloza’s credibility. 

9. Robinson v. Food Serv. of Belton, Inc., 415 F.Supp.2d 1232 (D.Kan. 2005) is 

another where the cost of presenting live testimony as opposed to deposition testimony 

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was considered by the court in determining whether exceptional circumstances exists. 

The court also noted: 

[D]efendants do not suggest that they were unable to cross-examine Ms. Owens 

fully. In fact, defendants were aware at the start of Ms. Owens' deposition that 

Ms. Owens might be called to basic training and that the possibility existed that 

Ms. Owens might not be present at trial. Defendants do not suggest any 

particularized reason for preferring the live testimony of Ms. Owens. They do not, 

for example, suggest that her demeanor at the deposition cast doubt on her 

credibility or any other reason to prefer the live testimony of Ms. Owens. For 

these reasons, the court reaffirms its decision that the use of Ms. Owens' 

deposition was appropriate. 

Id. at 1238-39. Ross Stores, Inc. also does not suggest that they were unable to cross 

examine Dr. Peloza, nor do they suggest that his demeanor at the deposition case doubt 

on his credibility, which in any event would be evident on the videotape. 

10, In this case it cost Plaintiffs $1,500 for Dr. Peloza’s fee plus court reporter fees 

and videographer fees (over $1,000.00) for Dr. Peloza’s videotaped deposition. It will 

cost them an additional $10,000 or more to have Dr. Peloza testify live at trial for 2 to 3 

hours. That is an exceptional circumstance that should justify allowing Plaintiffs to have 

Dr. Peloza testify by deposition. It also would comport with the federal judiciary’s long 

standing policy to reduce the outrageous expense of litigation. 

11. For all of the above reasons, Plaintiffs request that the Court find that exceptional 

circumstances exist to permit presenting Dr. Peloza’s testimony by videotaped 

deposition. 

 WHEREFORE, PREISES CONSIDERED, Plaintiffs pray that the Court grant 

this application, and order that Plaintiffs may present Dr. Peloza’s testimony at trial by 

videotaped deposition, and Plaintiffs pray for such other and further relief, both general 

and special, at law and in equity, to which Plaintiffs may show themselves justly entitled. 

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Respectfully submitted, 

 

 ROBERT H. OSBURN 

 A Professional Corporation 

 ATTORNEY AT LAW 

 By: __/s/ Robert H. Osburn_________ 

 ROBERT H. OSBURN 

 State Bar No. 15334000 

 8117 Preston Road, Suite 800 

 Dallas, Texas 75225 

 214-696-3200 

 214-696-5971 Fax 

 ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF CONFERENCE

 On January 9, 2007, I conferred with Randy Hall, counsel for Heavy Metal, Inc., 

who stated that he was opposed to the foregoing motion. On January 9, 2007, Plaintiff’s 

counsel conferred with Amy Friday, who stated that she was opposed to the foregoing 

motion. 

___/s/ Robert H. Osburn____ 

 Robert H. Osburn 

CERTIFICATE OF SERVICE

 I hereby certify that a true and correct copy of the foregoing document has been 

served via facsimile/e-mail, on the 9th day of January, 2007, to the following attorneys of 

record: 

Jeff D. Otto 

701 Brazos, Suite 1500 

Austin, Texas 78701 

Randy Hall 

1550 Norwood Drive, Suite 103 

Hurst, TX 76054 

 ___/s/ Robert H. Osburn________ 

ROBERT H. OSBURN 

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