Are personal injury plaintiffs legally required to testify at their trials? Actually, not. Under the right circumstances, deposition testimony can be used in lieu of live trial testimony if the trial court finds that the witness is “unavailable.” In the federal system, Rule 32 of the Federal Rules of Civil Procedure provides several grounds for a finding of unavailability:

• the witness is dead;
• the witness is located more than 100 miles from the courthouse;
• the witness cannot attend or testify at trial due to age, illness, infirmity, or imprisonment;
• the witness’s attendance in court cannot be compelled by subpoena;
• “exceptional circumstances” exist supporting the use of deposition testimony in the interest of justice.

The trial court in Glass v. Metropolitan Washington Airport Authority, No. 23-cv-1449 (E.D.Va. April 10, 2024), was recently called upon to apply Rule 32 in a case in which a personal injury plaintiff was unwilling to travel to give live trial testimony in the courthouse where she filed her lawsuit. The plaintiff, an 80-year-old Arizona woman, alleged that she sustained serious injuries when she was struck by a cleaning cart at Ronald Reagan Washington National Airport in Arlington, Va. She sued the airport, the airline, and a cleaning services contractor.

As a general proposition, it is true that courts prefer to have a witness’s attendance at trial. However, Rule 32 contains no requirement that this be the case. Rule 32 permits the deposition of any witness — even a party — to be used in lieu of live testimony at trial for the reasons advanced by the plaintiff.

Seven months in advance of the trial date, the plaintiff sought the court’s permission to conduct depositions of herself and her husband that would be used in lieu of live testimony at her trial. She alleged that she and her husband were too old and infirm to travel to Virginia for trial. (These types of depositions are commonly called de bene esse depositions, governed by in Rule 27 of the Federal Rules of Civil Procedure.)

The defendants raised several objections to the plaintiff’s plan, but the court turned them all back — except one. First, it observed that the plaintiff’s request to use deposition testimony at trial was supported by at least two separate Rule 32 grounds: she lives over 2,000 miles from the courthouse, and she (and her husband) both appear to be unable to testify in person due to age, illness, and infirmity.

The court gave little weight to the fact that the plaintiff filed her lawsuit in Virginia. As a general proposition, it is true that courts prefer to have a witness’s attendance at trial. However, Rule 32 contains no requirement that this be the case. Rule 32 permits the deposition of any witness — even a party — to be used in lieu of live testimony at trial for the reasons advanced by the plaintiff.

The plaintiff and her husband both are of advanced age, and the serious injuries alleged in the complaint were due to the defendants’ conduct, the court said. “That alone suffices to conclude that Plaintiff would endure significant hardship were she or her husband required to travel the great distance between their home and this Court.”

Second, the court noted that, even if Rule 32 is satisfied, courts have discretion to decide whether or not to allow a deposition to be used in lieu of trial testimony. Here, the court decided that the plaintiff had made a compelling case for substituting deposition testimony for live testimony.

The court was, however, sympathetic to the defendants’ argument that it would be prejudicial to permit the plaintiff to testify via deposition before she had complied with the defendants’ earlier pretrial discovery requests for information about her medical condition and any medical issues that might have predated her encounter with the airport’s cleaning cart. It ruled that the plaintiff must provide answers to the defendants’ discovery requests and provide those answers to the defendants well in advance of her deposition.

“Absent proper disclosure, Defendants cannot be expected to conduct a fulsome cross-examination of either witness,” the court said. “And because Plaintiff and her husband contemplate not appearing at trial, Defendants may only have one bite at the apple.”

Postscript: According to the PACER docket for this case, the plaintiff never did provide the requested medical discovery, and her deposition was never taken. While the parties appear to have agreed to conduct a remote deposition from the plaintiff’s home in Arizona, that deposition never took place. Shortly before the scheduled deposition date, at a time when the defendants were still complaining that the plaintiff had not provided medical reports and documents, the plaintiff claimed that she was too old and ill to sit for the remote deposition. The case subsequently settled for an undisclosed amount.