Unavailable Witness: Use of Trial Evidentiary Deposition

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Unavailable Witness: Use of Trial Evidentiary Deposition

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Dickens v. Commercial Union Ins. Co.
762 So.2d 1193
La.App. 1 Cir.,2000.
June 23, 2000

Before: YELVERTON, THIBODEAUX and GREMILLION, JJ.FN*



FN* Judges Pro Tempore by special appointment of the Louisiana Supreme Court.
**1 THIBODEAUX, Judge.


This case involves two consolidated suits for damages arising from a 1995 vehicular collision. American Central Insurance Company FN1 (hereinafter “American Central”) appeals the trial court's rulings pertaining to a party's failure to appear at trial and to review the allocation of fault and award of damages. We find that the trial court properly denied American Central's motion to dismiss based on the party's absence but erred in permitting the introduction of her deposition testimony under these facts. We amend that party's damages to exclude those only evidenced in the inadmissible deposition. We affirm the allocation of fault and affirm the other damage awards. We also deny American Central's claim for subrogation.


FN1. American Central was erroneously referred to as Commercial Union Insurance Company in the original pleadings.



I.
FACTS
The accident spawning this litigation occurred at the intersection of Plank Road and Sumrall Avenue in Baton Rouge, Louisiana on October 27, 1995. A van driven by Ms. Ordia Johnson, owned by the East Baton Rouge Housing Authority and insured by American Central, was proceeding in a northerly direction on Plank Road approaching the intersection with Sumrall Avenue. Ms. Johnson was driving the van in the course of her employment. Also in the van were Ms. Sylvia Dickens, Mrs. Girlie Sims Warren and the Rev. Gennie L. Warren. Mr. Willie Collins was approaching the intersection from the East on Sumrall Avenue in a car owned by Ms. Patsy Pittman. The passengers in his car were Mr. Melvin Dixon and **2 Mr. Elice Parker. A third vehicle driven by Ms. Marjorie White was following Mr. Collins. Mrs. Marjorie Kerry was a passenger in that vehicle.


*1196 The driver and passengers in the van testified that they were engaged in conversation as they approached the intersection. Ms. Johnson testified that she had the green light when she reached the intersection. She stated that she saw the car driven by Mr. Collins approaching, deduced that it was not going to stop at the intersection, but was unable to avoid the collision. The passengers in her vehicle testified, generally, that the light was green as they approached the intersection, but that they were not paying close attention to the light as they proceeded through the intersection.


Mr. Collins was attempting to make a left turn from Sumrall Avenue onto Plank Road. He and his passenger testified that the light was green as they proceeded through the intersection. With minor variations, Ms. White and Mrs. Kerry confirmed this.


There were several contradictions in the witnesses' accounts of the events. The trial judge determined that Ms. Johnson negligently proceeded through the intersection on a red light and attributed one hundred percent of the fault to her. He concluded that the drivers and passengers had sustained injuries in the accident and awarded damages.


Ms. Dickens did not attend the trial. Over the defendants' objections, the court permitted the introduction of her deposition testimony in lieu of her live testimony. The trial judge awarded damages to her based, in part, on her deposition.


American Central brought this appeal.


**3 II.
LAW AND DISCUSSION


Failure of Party to Appear


[1] American Central argues that the trial court erred in denying its motion to dismiss Ms. Dickens' claim due to her failure to appear at trial. In support of this argument, American Central cites La.Code Civ.P. art. 1672(A)(1) and Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97); 704 So.2d 424 to substantiate their claim that the trial court was required to dismiss the action upon their motion because Ms. Dickens failed to appear at trial.


Addressing involuntary dismissal upon a party's failure to appear, La.Code Civ.P. art. 1672(A)(1) states: “A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial.” In Jackson, 704 So.2d 424, the Third Circuit upheld the trial court's dismissal of an action where both the plaintiff and her attorney failed to appear at trial.


We agree that the trial court has discretion to dismiss an action upon the application of any party when the plaintiff fails to appear. However, an appearance may be made either personally or through an attorney. La.Code Civ.P. art. 1672 cmt. (g); Cf. La.Code Civ.P. art. 6; Spencer v. Children's Hosp., 432 So.2d 823 (La.1983). Although Ms. Dickens was not present at trial, she was represented by her attorney. Because her attorney made an appearance at trial, Jackson is inapplicable here.


Generally, a trial court is not required to dismiss proceedings due to the absence of a party. A party who makes an appearance through his counsel is not “absent” under Article 1672. The plaintiff's physical presence in court is not essential in all cases. Spencer, 432 So.2d 823.


[2] **4 An appellate court reviews a trial court's decision regarding dismissal pursuant to a manifest error or clearly wrong standard. Crowell v. Alexandria, 558 So.2d 216 (La.1990); Liberto v. Rapides Parish Police Jury, 95-456 (La.App. 3 Cir. 11/2/95); 667 So.2d 552. After conducting such a review, we find no error in the trial court's refusal to grant the motion for dismissal.


Use of Deposition Testimony
In its next assignment of error, American Central asserts that it was error for *1197 the trial court to permit the introduction of Ms. Dickens' deposition testimony in evidence because she was not “unavailable” under La.Code Civ.P. art. 1450. Ms. Dickens counters that the trial court has great discretion in determining the use of deposition testimony at trial when the witness is out of state or exceptional circumstances make admissibility of the deposition desirable.


[3] Article 1450 establishes the parameters for the use of deposition testimony at trial:


A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:



....



(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:



(a) That the witness is unavailable; [or]



**5 b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition[.]


Thus, the requirements for the admissibility of the deposition of a witness are twofold: (1) the deposition must be admissible under the Louisiana Code of Evidence and (2) the witness must be either (a) unavailable; (b) residing over one hundred miles from the place of trial; or (c) in another state without provocation by the party offering the deposition. The issue presented is whether the trial court properly found that Ms. Dickens was unavailable to testify at trial or that her absence from the state was not self-procured.


[4] Ms. Dickens explains that she was not present at trial because she was attending a national conference of the National Association of Community Action Agencies of which she is a member of the Board of Directors of the Baton Rouge Chapter. Her counsel explained her activities to the trial judge who found that Ms. Dickens was unavailable and permitted Ms. Dickens' deposition to be admitted in evidence over Defendants' objections.


[5] [6] [7] A party is not legally “unavailable” as a witness simply because he eschews the trial. Hoy v. Gilbert, 98-1565 (La.3/2/99); 754 So.2d 207. Additionally, a party whose absence from trial is attributable to his choice to be out of state on the date of trial is considered to have procured his own absence. Bruins v. United States Fleet Leasing, Inc., 430 So.2d 386 (La.App. 3 Cir.1983); Wehbe v. Waguespack, 98-475 (La.App. 5 Cir. 10/28/98); 720 So.2d 1267, writs denied, 98-2907 (La.1/15/99); 736 So.2d 211 and 98-2970 (La.1/15/99); 736 So.2d 213. A party who is not legally **6 unavailable or who is intentionally absent from trial due to his choice to be out of state may not submit his deposition testimony in lieu of live testimony.


[8] “The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion.” State in the Interest of Bordelon v. Guichard, 94-1795, p. 10 (La.App. 1 Cir. 5/5/95); 655 So.2d 1371, 1378, writ denied, 95-1405 (La.9/15/95); 660 So.2d 454. Our review of the record clearly shows that Ms. Dickens was absent because she chose to attend a conference in Florida rather than attend the trial of her claim. She was legally available and her absence was self-procured. Accordingly, she was not entitled to introduce her deposition testimony under Article 1450. The trial court *1198 abused its discretion in permitting the introduction of her deposition testimony.


[9] Our conclusion that the introduction of Ms. Dickens' deposition testimony was improper necessitates a review of the trial court's assessment of her damages. She is entitled to recover for only those damages which are evidenced elsewhere in the record, exclusive of those presented solely in her deposition. Hoy, 98-1565, 754 So.2d 207; Harvey v. Travelers Ins. Cos., 487 So.2d 106 (La.App. 4 Cir.1986).


[10] The trial judge awarded Ms. Dickens $22,131 in damages: $7,131 for medical expenses and $15,000 for past, present and future pain and suffering. Our review of the record supports the award for medical expenses; however, we find only minimal support for an award for pain and suffering. The record shows that Ms. Dickens had a pre-existing back injury and that she suffered only soft tissue injuries which slightly and temporarily intensified her pain. Accordingly, we reduce damages for pain and suffering to $3,000, making her total damages award $10,131.


**7 Allocation of Fault
[11] In its next assignment of error, American Central urges this Court to reverse the trial court's allocation of one hundred percent of the fault to Ordia Byrd Johnson. They focus our attention on contradictory testimony given by the drivers and passengers of the various vehicles involved in the accident.


[12] [13] [14] The trier of fact apportions fault after considering both the nature of each party's conduct and the correlation between that conduct and the damages claimed. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985); Gibson v. State, Through Dep't of Transp. and Dev., 95-1418 (La.App. 1 Cir. 4/4/96); 674 So.2d 996, writs denied, 96-1862 (La.10/25/96); 681 So.2d 373, 96-1895 (La.10/25/96); 681 So.2d 373 and 96-1902 (La.10/25/96); 681 So.2d 374. “The allocation of a particular percentage of fault to a party is a finding of fact.” Babin v. Burnside Terminal, Greater Baton Rouge Port Comm'n, 577 So.2d 90, 99 (La.App. 1 Cir.1990). On review, an appellate court will not reverse a trial court's finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).


[15] [16] Both drivers had a duty to exercise care upon approaching the intersection. “A left turn is one of the most dangerous maneuvers a motorist may execute and requires the exercise of great caution. Before attempting a left turn, a motorist should ascertain whether it can be completed safely.” Pesson v. Reynolds, 97-150, p. 9 (La.App. 1 Cir. 11/13/98); 727 So.2d 507, 512, writ denied, 99-875 (La.5/7/99); 741 So.2d 657 (citations omitted). All motorists have a duty to maintain a careful lookout, observe obstructions, and exercise care to avoid them. Id.


The drivers, passengers and witnesses gave contradictory testimony as to who had the green light at the intersection. The trial judge weighed the evidence **8 and determined that Mr. Collins had the green light at the intersection, that Ms. Johnson was distracted when approaching the intersection and that Ms. Johnson had negligently proceeded through the intersection thereby causing the accident. Pursuant to this finding, he allocated one hundred percent of the fault to Ms. Johnson.


[17] As the reviewing court, our charge is not to determine whether the factfinder was right or wrong, but whether his conclusion was a reasonable one. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Id.


The trial judge, after listening to the testimony, reviewing the evidence and observing the witnesses' demeanor, made credibility determinations as to which facts were most accurate. He found that the cause of the accident was “the inattentiveness*1199 of Ms. Johnson in proceeding through the intersection on a red light.” Upon careful review of the record, we cannot say that the trial judge was manifestly erroneous in finding that Ms. Johnson was one hundred percent at fault in causing the accident. We will not disturb this conclusion.


Damages
American Central argues that Ms. Dickens, Mrs. Warren and Rev. Warren sustained only soft tissue injuries and that their damage awards are excessive. It is unclear whether American Central is arguing that the monetary awards are excessive for their injuries or that the alleged injuries were unsubstantiated by the evidence or unrelated to the accident. Having already reviewed Ms. Dickens' award, we now consider the Warrens' awards.


[18] **9 Regarding causation, the plaintiffs must prove through medical testimony, by a preponderance of the evidence, that it is more probable than not that their subsequent injuries were caused by the accident. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95); 650 So.2d 757. The record shows that the plaintiffs met this burden and the defendants have not rebutted it.


The trial judge has much discretion in the assessment of damages. La.Civ.Code art. 2324.1. The record reveals no abuse of that discretion. Thus, we decline to disturb the damage awards of $102,048 to Mrs. Warren and $11,875 to Rev. Warren.


Subrogation
[19] Lastly, American Central contends that the trial court erroneously denied its claim for a credit against its liability coverage for the $30,000 it paid Ms. Dickens and the Warrens under its uninsured motorist coverage. Without articulating the basis for this claim, American Central contends that it is entitled to and did not waive its rights to an offset, credit, subrogation and/or reimbursement.


It is clear from the amalgamation of legal arguments that American Central has an imprecise understanding of the rights to which they may be entitled. In order for us to evaluate their rights, we must first distinguish among the various claims in order to ascertain what right, if any, applies here.


[20] [21] Subrogation is the legal or conventional substitution of one person to the rights of another. La.Civ.Code art. 1825. Subrogation occurs by operation of law in favor of an obligor who pays a debt he owes with others or for others and who has recourse against those others as a result of the payment. La.Civ.Code art. 1829(3). When subrogation takes place by operation of law, the new obligee may recover from **10 the obligor only to the extent of the performance rendered to the original obligee and may not increase his recovery by invoking conventional subrogation. La.Civ.Code art. 1830. An insurer's right to recover from a negligent third party for the debt it paid to its insured arises under Article 1829(3), even where there is no contractual subrogation clause in the insurance contract. State Farm Mut. Auto. Ins. Co. v. Berthelot, 98-1011 (La.4/13/99); 732 So.2d 1230. “Consequently, an insurer bound to repair the damage caused by a tortfeasor is solidarily liable with the tortfeasor because both are obligated to the same thing, repair of the tort damage.” A. Copeland Enters., Inc. v. Slidell Memorial Hosp., 94-2011, p. 7 (La.6/30/95); 657 So.2d 1292, 1297.


[22] [23] Subrogation is distinct from reimbursement. “With subrogation, the insurer stands in the shoes of the insured, whereas with reimbursement, the insurer has a direct right of repayment against the insured.” A. Copeland Enters., 94-2011 at p. 10, 657 So.2d at 1298-1299. A true reimbursement does not permit the insurer to proceed against the tortfeasor. Barreca v. Cobb, 95-1651 (La.2/28/96); 668 So.2d 1129.


[24] [25] An uninsured motorist carrier may recover payments it made to its insured*1200 pursuant to La.R.S. 22:1406(D)(4) which provides:


In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.


**11 Emphasis added.) Under this section, upon tendering payment under its uninsured motorist policy, an insurer acquires the rights its insureds had against the tortfeasor. The insurer is not entitled to subrogation when its insured had no rights to transfer. Cf. Bosch v. Cummings, 520 So.2d 721 (La.1988); State Farm Mut. Auto. Ins. Co. v. Nathan, 95-2001 (La.App. 1 Cir. 5/10/96); 673 So.2d 710. “An accepted, unconditional tender of funds an insurer reasonably believes it owes is not refundable, absent some fraud or ill practices.” State Farm Mut. Auto. Ins. Co. v. Azhar, 620 So.2d 1158, 1160 (La.1993); Kimble v. Reason, 626 So.2d 6, 11 (La.App. 1 Cir.1993).


The record reflects that American Central made a payment to Ms. Dickens and the Warrens under its uninsured motorist provisions and then filed a cross-claim against Mr. Collins to recover that amount. This is a claim for subrogation based on the assumption that Mr. Collins was at least partially at fault in causing the accident. However, since the trial court found that Mr. Collins was not at fault in causing the accident, he is not solidarily liable with American Central for the damages. Whereas subrogation permits an insurer to recover from the party who caused damage, American Central is not permitted recovery from Mr. Collins because no fault was apportioned to him. We must deny American Central's claim for subrogation or reimbursement.


III.
CONCLUSION
For the foregoing reasons, we affirm those portions of the trial court judgment addressing the denial of the defendant's motion to dismiss for Ms. Dickens' failure to appear at trial, the allocation of fault and the assessment of damages. We **12 also affirm the denial of American Central's claim for subrogation. We reverse the trial court's use of Ms. Dickens' deposition testimony in lieu of her live testimony and adjust her award of general damages to $3,000 to reflect the damages supported by the appropriate evidence. American Central is cast with costs of this appeal.


AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

La.App. 1 Cir.,2000.
Dickens v. Commercial Union Ins. Co.
762 So.2d 1193, 1999-0698 (La.App. 1 Cir. 6/23/00)

=============


In the instant case, the WCJ obviously determined that the testimony of certain witnesses was more credible than others. Therefore, we must give his decision great deference because when a judge's finding is based on his decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Rosell, 549 So.2d at 845. However, an appellate court may find manifest error when documents or objective evidence so contradict a witness' story, or the story itself is so inconsistent or implausible, that a reasonable person would not credit the story. Rosell, 549 So.2d at 844-845. In the instant case, the objective medical evidence does not contradict Dunning's story, but it in fact supports it because the EMG and MRI tests show a cervical disc herniation and a rotator cuff tear in the shoulder. Furthermore, although Dunning may not **9 have always been forthcoming with certain information, his story is not so inconsistent or implausible that a reasonable factfinder would not credit it. Additionally, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Rosell, 549 So.2d at 844. Accordingly, we conclude that the WCJ was reasonable in finding that Dunning was involved in a work related accident, that his neck and shoulder injuries were caused by the accident, that he was temporarily totally disabled as a result of the accident, and that he did not forfeit his right to workers' compensation benefits by making misrepresentations.


[7] Dapco has argued that the WCJ erred in allowing the deposition testimony of Tony Abbey, Dunning's employee and friend, to be introduced into the record as evidence. Abbey was working with Dunning at the time of his accident, and he testified in his deposition that he witnessed Dunning fall from the scaffold and land on the floor. Dunning's trial counsel has stated that he attempted to have Abbey subpoenaed to testify at the trial, although there is nothing in the record to prove it, and Abbey claims never to have received a subpoena. Nevertheless, the WCJ held the record open after trial so that Abbey's deposition could be taken. Dapco argues that the deposition should not have been admitted because Abbey was not unavailable as a witness to testify at trial. Louisiana Code of Civil Procedure art. 1450(A) provides, in pertinent part:


(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:



*455 (a) That the witness is unavailable;



(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or



**10 (c) 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.



[8] [9] [10] [11] [12] Under this article, the trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed on review in the absence of an abuse of that discretion. Dickens v. Commercial Union Ins. Co., 99-0698, 99-0699 (La.App. 1st Cir.6/23/00), 762 So.2d 1193, 1197. Under La. C. Civ. Proc. art. 1631, the court has the power to require that the proceedings shall be conducted so that justice is done. The objective of our judicial system is to render justice between litigants based on the merits of the controversy. Bankston v. Bankston, 97-2509 (La.App. 1st Cir.11/6/98), 722 So.2d 46, 47. Litigants should be permitted all reasonable opportunity to place before the trial court all facts bearing on the issues involved. Bankston, 722 So.2d at 47. Accordingly, the trial court has much discretion in deciding whether to reopen a case to allow additional evidence, and its decision should be reversed only if it is a clear abuse of that discretion. Bankston, 722 So.2d at 47. Therefore, we conclude that the WCJ did not abuse his discretion in allowing the deposition testimony of Tony Abbey to be introduced into the record as evidence.

Dunning v. Dapco Ventures, L.L.C.
834 So.2d 448
La.App. 1 Cir.,2002.
November 08, 2002

==========================

The Plaintiffs assign as errors of the trial court three evidentiary rulings. First, Plaintiffs state that the trial court erred in denying to admit into evidence the deposition of named plaintiff, Bourgeois, who did not attend the class certification hearing. Plaintiffs stated to the court that Bourgeois is blind and could not get transportation to the hearing because he now lives in Ocean Springs, Mississippi. Plaintiffs did not provide an affidavit presenting these facts; Plaintiffs simply told **20 the trial court that, according to the internet, Bourgeois' residence is 103 miles from the courthouse.


La. C.C.P. art. 1450 addresses the use of depositions and provides:


(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:



(a) That the witness is unavailable;



(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition



[26] [27] [28] [29] Therefore, the deposition of a party may be used if that party can show that he or she meets the criteria set forth in La. C.C.P. art. 1450. However, hearsay evidence may not be considered in the judicial inquiry of a witness' unavailability. Reine v. Grillot, 505 So.2d 1179 (La.App. 5 Cir.1987); Wheeler v. New Orleans Public Service, Inc., 573 So.2d 1237 (La.App. 4 Cir.1991); Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4 Cir.1975). A party is not legally “unavailable” as a witness simply because he eschews the trial. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207; Dickens v. Commercial Union Ins. Co., 1999-0698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. Additionally, a party whose absence from trial is attributable to his choice to be out of state on the date of trial is considered to have procured his own absence. Wehbe v. Waguespack, 98-475 (La.App. 5 Cir. 10/28/98), 720 So.2d 1267, writs denied, 98-2907 (La.1/15/99), 736 So.2d 211 and 98-2970 (La.1/15/99), 736 So.2d 213; Bruins v. United States Fleet Leasing, Inc., 430 So.2d 386 (La.App. 3 Cir.1983).


[30] [31] The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion. State in the Interest of Bordelon v. Guichard, 94-1795 (La.App. 1 Cir. 5/5/95), 655 So.2d 1371, 1378, writ denied, *494 95-1405 (La.9/15/95); 660 So.2d 454. The trial court further has wide discretion in **21 determining a witness' unavailability. Flannery v. Tastee Donuts, Inc., 529 So.2d 1360 (La.App. 5 Cir.1988).

Bourgeois v. A.P. Green Industries, Inc.
939 So.2d 478
La.App. 5 Cir.,2006.
July 28, 2006


=========

CACH, LLC NUMBER: 504,418-B

VERSUS FIRST JUDICIAL DISTRICT COURT

ARLENE FARLEY CADDO PARISH, LOUISIANA
NO TRIAL DATE SET AT THIS TIME

DEFENDANT’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION IN LIMINE

MAY IT PLEASE THE COURT:
Defendant, ARLENE FARLEY, respectfully opposes the Motion in Limine filed by plaintiff, as follows:
I. BACKGROUND
Defendant is an local lady who found herself named as a defendant in the above entitled and captioned lawsuit. She was served with a lawsuit filed by the plaintiff-purported debt collector back in July, 2006. She sought information about the alleged debt from plaintiff. She was told by plaintiff’s representative that the alleged debt pertained to a car loan. She filed a responsive pleading and Answer to the lawsuit on July 24, 2007. Since that time, she retained counsel to assist in understanding these proceedings and investigating the basis of this lawsuit.
Defendant has been sued by plaintiff based on an alleged Bank of America account number 6501-0003-3889-3, which plaintiff claims she opened in April, 2005. In fact, she does not have such an account with Bank of America. Some time ago, she borrowed monies from Bank of America to buy a used car and Bank of America assigned account number 4427-1030-2384-9820 to that loan/line of credit. That loan has nothing to do with the alleged account sued upon herein. Bank of America also allowed cash advances to that secured loan/line of credit. The credit line was $7,500.00 and not ever near $24,870.69. Defendant has continued to make payments on the Bank of America account number 4427-1030-2384-9820 of roughly $400.00 per month. As of February 2007, the alleged balance [on the only Bank of America debt she has had] is $8,811.40 Defendant does not owe CACH, LLC or Bank of America on any account numbered 6501-0003-3889-3 and does not owe CACH, LLC or Bank of America $24,870.69. Interestingly, Bank of America made efforts to provide her a credit card tied to the account number 4427-1030-2384-9820 but she denied that overture.
On June 3, 2009, a Scheduling Order was entered requiring plaintiff to file witness and exhibit lists. Those were due within 30 days of the order. Plaintiff failed to file any such lists. Plaintiff filed a pre-trial brief suggesting that witnesses and evidence will be offered which had not been disclosed, in discovery, or listed in any witness of exhibit list. Exclusion of offerings in violation of the scheduling order is a proper and enforceable result. Horton v. Williams, Not Reported in So.3d, 2009 WL 839049 [La. App. 1 Cir. 2009]; In re Succession of Gates, 746 So.2d 193 [La. App. 2 Cir. 1999]. Your Honor contacted both counsel about defendant’s motion to strike, et al, as the previously scheduled trial date was approaching. The trial date was continued without new date.
Since that time, plaintiff filed the present motion in limine seeking to have certain proposed evidence to be admitted.
II. PLAINTIFF CANNOT USE AN AFFIDAVIT AT TRIAL
Recently plaintiff filed a Motion in Limine seeking a court order to permit an out-of-state witness to present either an affidavit or deposition in lieu of being required to testify live at trial. This is a most awkward motion and defendant objects to the proposed motion and request. Given the facts in this case, it is crucial that any representative of plaintiff [and any other alleged assignee or creditor] be subject to scrutiny and that proper authority, foundation, and knowledge be tested and examined by defendant. Undersigned counsel knows of no rule of law permitting a corporate representative to submit an affidavit into evidence over foundation, hearsay and similar objections [as this defendant asserts] for trial purposes.
An affidavit containing proposed trial testimony is not a “business record” under the exception to the hearsay rule.
III. PLAINTIFF IS NOT “UNAVAILABLE”
Plaintiff has chosen to file its suit here. CACH will undoubtedly have to present some representative to testify at trial. That witness will further be unable to introduce records of Bank of America, any car dealer, etc. CACH is an end-of-the-line debt collector and lacks any foundation to testify about the alleged dent or facts leading up to it. CACH is not unavailable for trial.
This Honorable Court has great discretion in the control of the presentation of evidence. Defendant submits that if plaintiff were permitted to conduct the trial on out-of-state deposition transcripts and efforts to shuffle papers into evidence, defendant’s rights will be prejudiced.
Plaintiff apparently acknowledges that it is not an “absent” or “unavailable” witness at trial. [[FN 1- “Testimony at trial as to the unavailability of the two men consisted of Reine's counsel's statements that his secretary called Mr. Rodrigue and that his secretary spoke to Mrs. Rodrigue who informed her that the men were out of town. Grillot's counsel objected at trial to the use of hearsay evidence to establish the unavailability of the witnesses. We agree with the Louisiana jurisprudence which holds that “[i]t is clear ... that hearsay evidence may not be considered in the judicial inquiry as to unavailability. Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La. App. 4th Cir. 1975) [footnote omitted].” McKinley v. Dalton, 355 So.2d 1033, 1035 (La. App. 4th Cir. 1978).” Reine v. Grillot, 505 So.2d 1179 [La. App. 5 Cir. 1987], w.d., 512 So.2d 457 [La. 1987].]] The Dickens decision, 762 So.2d 1193, cited by plaintiff supports defendant’s position. Plaintiff cannot procure its own absence. Since trial is not presently rescheduled, plaintiff’s motion highlights the need to coordinate our trial date with the availability of plaintiff’s representative. Hence, plaintiff needs to identify that person at this time. From motion practice, we are aware of the identity of an affiant who provided questionable testimony for plaintiff in the affidavit that was filed.
It is unclear how plaintiff can determine, at this time, that its witness/representative “will be unavailable” with certainty as claimed. Page 2, plaintiff’s memo. This Honorable Court, to the contrary, should deny the motion by plaintiff and require plaintiff to bring its witness[es] to trial. The volume of proposed documents and the importance of the issues to be addressed cannot be adequately conducted by telephonic or video deposition. Silva Run Worldwide, Ltd. v. Gaming Lottery Corp., No. 96 Civ. 3231, 2003 WL 23009989, at *2 (S.D. N.Y. 2003) (rejecting telephonic or video deposition because of importance of testimony and volume of documents). The travel and deposition expenses far outweigh the cost of bringing that witness to trial.
No proposed deposition of plaintiff has been noticed or taken. If this Honorable Court permits plaintiff to try its case by deposition, then defendant respectfully seeks adequate notice and opportunity to object and opportunity for defendant to travel to the site of the deposition, if ever noticed. Further, plaintiff should be cast with the costs of travel and participation by defense counsel. Commodity Futures Trading Commission v. Commodity Investment Group, Inc., No. 05 Civ. 5741, 2005 WL 3030816, at *2 (S.D. N.Y. 2005) (requiring plaintiff to pay expenses of defendant's counsel in connection with distant depositions); Mengele v. Patriot II Shipping Corp., No. 99 Civ. 8745, 2001 WL 1160661, at *1-2 (S.D. N.Y. 2001) (upholding order for defendant to pay costs of plaintiff's counsel for out-of-state deposition); R.S. ex rel. S. v. Ridgefield Board of Education, No. 3:06CV01783, 2008 WL 1989774, at *2 (D. Conn. 2008) (denying request for telephone or video deposition on ground that it could “hamper the Plaintiffs' attorney's ability to fully conduct the deposition”); Willis v. Mullins, No. CV F 04 6542, 2006 WL 894922, at *3 (E.D. Cal. 2006).

IV. PLAINTIFF CANNOT SUBMIT BANK OF AMERICA’S PAPERS
Further, plaintiff cannot submit the “business record” of its alleged predecessor Bank of America, NA, absent a comparable evidence deposition to lay foundation and acquire first hand testimony about interpretation of any business record. Defendant would similarly object on the bases of lack of foundation, hearsay and object to any effort of CACH to testify about interpretation of a Bank of America document.
The Second Circuit has recently and directly addressed the issue. In State v. Nelson, --- So.3d ----, 2009 WL 3448831 [La. App. 2 Cir. 2009], the court stated: “In State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), the Supreme Court explained the “business records” exception to our hearsay rule. The Court stated: The witness laying the foundation for the admissibility of business records need not have been the preparer of the records; however, the witness must be familiar with and able to testify from personal knowledge about the bookkeeping and accounting procedures of the entity whose business records are sought to be introduced. Under Art[icle] 803(6), it is essential that a custodian or other qualified witness testimonially explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded. Id. at 327, citing Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La. App. 2 Cir. 1990)...Even if LeadsOnline.com could be considered an acceptable source for the information, there was no testimony from a qualified representative of the company to show that the records introduced in this case were those transmitted to the web site by the dealers in question. The records were not those of a scrap dealer or related business; rather, they were reports by a third party of what purported to be submitted business records. Accordingly, we find that the records from LeadsOnline.com, and the police officer's testimony with regard to those records, were hearsay evidence, and, therefore, inadmissible pursuant to LSA-C.E. art. 803, in the absence of testimony from the custodian of the records or other qualified witness. Thus, the trial court erred in admitting the evidence obtained from LeadsOnline.com. [emphasis added.].” Nelson is on point.
Even prior, the Second Circuit addressed the same issue. In Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122 [La. App. 2 Cir. 1990], the court held: “On this record we must conclude that the trial court was clearly wrong in admitting P-1. Boss Oil's invoices, Cole's testimony regarding them, and portions of the Cole Oil statement clearly were hearsay or were founded on hearsay. Cole simply was not the qualified witness that is necessary to establish the C.E. 803(6) business records exclusion in these respects:
Boss Oil invoices.
The 14 Boss Oil invoices were obviously prepared by one or more third parties in connection with and for use by Boss Oil. Third party invoices, prepared by an out-of-court declarant, constitute hearsay. Cole's testimony, which was based entirely on third party oral and written statements, is “double hearsay.” “Double hearsay” does not preclude admissibility if the statutory requirements are met. See, e.g., C.E. Arts. 801, 803(6) and 805 and related Comments. The statutory requirements are not met in this record.
Cole had no firsthand or personal knowledge about Boss Oil, its business records and accounting procedures or the “facts” contained in its invoices. He was never employed by or otherwise affiliated with Boss Oil when the invoices were prepared. He played no role in their creation or compilation. He knew nothing about the source or content, the method or circumstances of preparation or accuracy, trustworthiness or authenticity of the invoices.” Cole is directly on point. Also: Riddle v. Unifund CCR Partners, --- S.W.3d ----, 2009 WL 3208112 [Tex. App. - El Paso 2009] [Credit cardholder agreement, telemarketing application, and account statements of original creditor were inadmissible under business records exception to hearsay rule in subsequent creditor's action against debtor to recover payment; witness for subsequent creditor stated that the information was inputted by someone at original creditor, although he had no personal information about how the information was inputted or how the information was obtained, and nothing indicated how subsequent creditor knew of the events recorded on the third-party documents.].
Finally, another case should be considered as it addressed the business records exception. In Williams v. Augustus, 506 So.2d 630 [La. App. 4 Cir. 1987], the court stated: “Hearsay evidence is generally inadmissable as being unreliable because it is based on statements by persons not before the court or unavailable for cross examination. The business records exception to the hearsay rule is predicated upon considerations of reliability and necessity. Herlitz Construction Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La. App. 1st Cir. 1979). Business records are admissable as proof of their assertions if: 1) Persons concerned with recording the information are unavailable for testimony; 2) The first collected record available to or usable by the court is introduced; 3) The records are identified at the trial by one familiar with the record keeping procedure; and 4) The evidence seems reliable after considering such factors as contemporaneousness of the entry with the occurrence of fact recorded; first-hand knowledge of the entrant; existence of a business or professional duty to record or report the facts in the regular course of business; completeness and honest appearance of the books; absence of fraud in making the entries or in destroying the supporting memoranda and perhaps, whether the books belonged to a third party. Comment, 21 La.L.Rev. 449 (1961) and cases cited therein.”
V. ADDITIONAL CONCERNS ABOUT PLAINTIFF’S PROPOSAL
Defendant notes that the proposed evidentiary deposition process in this case will present a particular problem for plaintiff. Evidentiary objections will be made and must be ruled upon or plaintiff runs an enormous risk of failing to properly introduce evidence and testimony through its witness. Defendant will make those objections. Plaintiff’s witness will be interrogated as to why the witness cannot travel to Louisiana to appear live at a trial yet to be rescheduled. The deposition would have to be videotaped so that Your Honor can scrutinize the veracity of the witness. That is an expense that should be borne by plaintiff, as well as otherwise unnecessary and duplicative travel and deposition expenses.
The purported Bank of America affidavit is hearsay and not capable of being introduced at trial and cannot be introduced as a purported business record, which it is not.
A number of these documents listed on page 3 of plaintiff’s motion have not been produced to defendant and the documents are not attached to the motion copy served on defendant. By descriptions listed alone, defendant will not consent to any of them being introduced and would assert foundation, hearsay and other objections to each. Even CACH’s alleged balance ledger is hearsay as to the content since CACH merely wrote down what it was allegedly told by Bank of America. On the whole, the documents listed are not records of CACH.
The motion in limine is itself an evidentiary hearing and plaintiff cannot meet its burden on the issue raised. [[FN 2- “A motion in limine presents an evidentiary matter that is subject to the great discretion of the trial court. Heller v. Nobel Insurance Group, 2000-0261 (La. 2/2/2000), 753 So.2d 841; Randall v. Concordia Nursing Home, 2007-101 (La. App. 3d Cir. 8/22/07), 965 So.2d 559, writ denied, 2007-2153 (La.1/7/08), 973 So.2d 726. This great discretion extends to the trial court's assessment of the probative value of evidence. Green v. Claiborne Elec. Co-op., Inc., 28,408 (La. App. 2d Cir. 6/26/96), 677 So.2d 635.” Taylor v. Dowling Gosslee & Associates, Inc., --- So.3d ----, 2009 WL 3190474 [La. App. 2 Cir. 2009].]]


Respectfully submitted,

Bodenheimer, Jones & Szwak, LLC



By:
David A. Szwak, LBR# 21157, TA
416 Travis Street, Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400[318] 424-1400
FAX 221-6555
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel, by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid, on this the ____ day of __________________, 2009.



___________________________________
OF COUNSEL
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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