Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Posted by David Adelstein on July 24, 2015
Depositions, Evidence, Expert Testimony

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Expert witnesses are an important part of civil trials (and criminal trials).   Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion.  

Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.”

Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time before the trial in accordance with the rules for taking depositions and may be used at trial, regardless of the place of residence of the witness.”

This means a party can utilize the deposition of an expert instead of calling the expert to the witness stand. The deposition is utilized by reading portions of the deposition transcript or offering portions of a videotaped deposition.

It is common for portions of depositions to be read to the jury (or, shown to the jury in a videotaped deposition). In this regard, Florida Rule of Civil Procedure 1.330(a)(4) states: “If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.”

This rule is designed to prevent a party from taking a deposition out of context and misleading the jury by reading or showing only select portions of the deposition versus allowing the jury to hear the “whole truth.” See Kaminsky v. Travelers Indem. Co., 474 So.2d 287, 288 (Fla. 3d DCA 1985) (“[W]here one party reads selected and prejudicial portions of the other party’s deposition for impeachment, it is error to prohibit opposing counsel from reading other portions of that same deposition in an effort to demonstrate the “whole truth.”); see also Mitchell v. Bonnell, 770 So.2d 1292, 1294 (Fla. 3d DCA 2000) (“We hold that Mitchell [plaintiff] had the right to present additional portions of Dr. Gordon’s deposition for the purpose of explaining, clarifying, and/or placing in context those limited sections presented by the defense by way of direct examination. The court’s failure to allow this was an abuse of discretion.’); Eggers v. Narron, 254 So.2d 382, 385 (Fla. 4th DCA 1971) (“When the plaintiff in this case elected to introduce into evidence a part of Eggers’ deposition, each of the defendants thereupon became entitled under this provision of subsection (4) of the rule to offer into evidence during the defendants’ case any other parts of Eggers’ deposition.”).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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