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Otzenberger v. Park-Hwang5/10/2005
would not be permitted to interrupt the defense's case-in-chief was reasonable and proper on the facts and motions presented to it at the time did not deny Otzenberger a fair trial. Otzenberger did not ask for a continuance to reschedule her witnesses. She did not request a perpetuation deposition of Dr. Chang and she did not renew her request to depose Dr. Day. Thus, the sole question is whether the trial court's initial February 24 denial of Otzenberger's request to perpetuate the testimony of Dr. Day by video deposition denied her a fair trial. As it did not, it was improper for the trial court to order a new trial on that basis.
In addition, the admissibility of depositions is governed by CR 32. CR 32(a)(3) provides that when certain defined instances of unavailability exist, a witness's deposition may be admitted as a substitute for his testimony. Hammond v. Braden, 16 Wn. App. 773, 774-75, 559 P.2d 1357 (1977). Thus, evidence of such a deposition would only have been proper had the court found:
(A) that the witness is dead; or (B) that the witness resides out of the county and more than 20 miles from the place of trial, unless it appears that the absence of the witness was procured by the party offering the deposition or unless the witness is an out-of-state expert subject to subsection (a)(5)(A) of this rule; 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.
CR 32(a)(3). The circumstances before the court when it made its ruling were that Otzenberger represented that there was a possibility that Dr. Day would be able to testify. Thus, it would have been improper for the trial court to permit taking a perpetuation deposition of Dr. Day. The court's refusal to permit Otzenberger to perpetuate the inadmissible deposition testimony of Dr. Day could not, as a matter of law, have denied Otzenberger a fair trial, and the grant of a new trial on that basis was error.
In conclusion, Otzenberger failed to preserve objection to Park- Hwang's closing argument and is not entitled to a new trial or appellate relief on that basis. On the record before it, the trial court's denial of Otzenberger's request for preservation video deposition was proper when made and did not deprive Otzenberger of a fair trial. The trial court substituted its judgment for that of the jury and its order granting a new trial does not rest on any legitimate legal ground. The jury's verdict in favor of Park-Hwang should be reinstated.
Reversed and remanded with directions to reinstate the jury's verdict and enter judgment thereon.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, C.J.
We concur:
MORGAN, J.
VAN DEREN, J.
Page 1 2 3 4 5 6 7 Washington Personal Injury Attorneys
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