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Eagle-Picher Industries Inc. v. Balbos8/29/1990
EF--> L. McLain, Maryland Evidence § 613.1 (1987); IIIA Wigmore on Evidence § 1025, at 1020-21 (Chadbourn rev. 1970); 81 Am.Jur.2d Witnesses § 606, at 615 (1976).
Eagle-Picher argues, however, that "if . . . the inconsistent statement is one made under oath, in a judicial proceeding, no such requirement exists." In support of this proposition, Eagle-Picher cites only Ecker v. McAllister, 45 Md. 290
(1876). Ecker is distinguishable from the case before us, however, in that the deponent in Ecker testified in person at the trial and was asked by counsel if he made the assertions (in that case, answers to interrogatories) that counsel wished to use to impeach his trial testimony. Id. at 304. Thus, the Ecker court did not address the issue central to our discussion here: whether a witness's prior inconsistent statements are admissible to impeach him when his only testimony at trial is in the form of a deposition and counsel attempting to impeach the deposition testimony does not call the deponent to the stand and confront him with his prior statements. The Court of Appeals dealt directly with this issue in Matthews v. Dare, 20 Md. 248(1863), saying,
By the well settled rules of law, [impeaching a witness through prior inconsistent statements] is not allowed, unless a proper foundation be previously laid by interrogating the witness on the subject of the alleged variance, and affording him an opportunity for explanation.
In our opinion the same rule governs when the testimony of the witness is taken under a commission, as where he is examined on the stand at trial . . . .
Id. at 269 (citations omitted). Counsel for Eagle-Picher attempted to impeach Dr. Braun's deposition testimony by introducing prior inconsistent statements from Braun's 1977 and 1980 depositions without affording him an opportunity to explain the statements. Thus, the trial judge was correct in denying counsel's request that the 1977 and 1980 excerpts be admitted.
C. Eagle-Picher's Motion to Strike the 1985 Deposition
Appellees authenticated the IHF digests through the reading of the deposition of Jane Brislin, IHF's director
of information services. The trial judge ruled that the digests were only admissible against the parties who were present at the Brislin deposition. Eagle-Picher was not present at Brislin's deposition; thus, the IHF digests were not admitted in evidence against it. In a footnote, Eagle-Picher contends that it moved to strike the Braun testimony, and the card showing that Eagle-Picher once was an IHF member, because the damaging digests were not admissible against Eagle-Picher and were thus irrelevant as to Eagle-Picher. According to Eagle-Picher, the trial judge denied this motion.
On this point, we note first that Eagle-Picher specified a number of grounds upon which it objected to the admission of the 1985 deposition and the IHF membership card. (See the list in Section 16A, entitled "The 1985 Deposition," supra.) A careful review of the record extract, however, reveals no objection based on an argument that the deposition and the card were irrelevant due to the inadmissibility of the IHF digests against Eagle-Picher. "Where a party specifies the grounds for objection, as appellant did at the trial below, he is bound to that ground and waives any other objections not stated." Braxton v. State, 57 Md. App. 539, 556, 470 A.2d 1327(1984). Eagle-Picher already has waived the objection it now raises on appeal.
If indeed Eagle-Picher did move to strike the 1985 deposition and the membership card on grounds of relevancy, we still would not decide the issue
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