31 F.R.D. 268 | E.D. Pa. | 1962
This case raises an interesting question of procedure. It deals with the deposition of an out of State witness who is claimed to be mentally incompetent.
Herbert D. Clark brought a suit for libel in the Common Pleas Court of Philadelphia County against New Amsterdam Casualty Company and its employee, Charles Geiger. The suit was removed to this court. Clark claimed that At-well, Vogel & Sterling, Inc., his prospective employer, had asked Geiger and New Amsterdam, for whom he earlier had worked under the supervision of Geiger, for information about him, and that Geiger, in reply, wrote a letter which was defamatory. Clark claimed damages for injury to his reputation and also sought damages for consequent mental illness which permanently disabled him.
The defendants, as third-party plaintiffs, joined Atwell, Vogel & Sterling, Inc., as third-party defendant, averring that it had negligently and in breach of its contractual obligation disclosed to Clark the contents of Geiger’s letter.
The original and third-party actions were later severed for purposes of trial. The original action was then tried before a judge and jury. Clark presented the testimony of a psychiatrist, Dr. Harold Dillon, that he suffered paranoiac schizophrenia as a result of Geiger’s letter. The jury rendered a verdict in favor of Clark and against Geiger and New Amsterdam Casualty Company in the amount of $21,000.
A year later New Amsterdam filed and served on the third-party defendant notice that it intended to examine Clark upon oral deposition in Tampa, Florida. The purpose of the proposed examination is to have Clark’s deposition available for use at trial, inasmuch as he now resides in Florida. The present motion is by the third-party defendant for a protective order under Rule 30(b) to prohibit or regulate the taking of the deposition. A number of fundamental propositions will light the path to the appropriate conclusion.
A witness ordinarily is presumed to be mentally competent to testify. 2 Wigmore, Evidence (3d ed. 1940), §§ 484, 497. This presumption, however, may not be given full scope in the present case. We cannot close our eyes to the indisputable fact, so linked with the present question, that in the original action Clark obtained a jury verdict which in part at least was based upon his own claim of mental illness.
We have then a witness whose evidence may go to the heart of the factual dispute between the present parties
On the other hand, the existence of a mental illness does not render a wit
Rule 30(d) authorizes a deponent or a party to interrupt a deposition in another district and to seek relief from a district judge at the place where the deposition is being taken if it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or a party. If this rule were applicable to the present case, the District Judge in the Southern District of Florida could hear the objection to the competency of the witness after the deposition there had gone sufficiently far. We might then deem a ruling by the Florida District Judge persuasive, if not binding, on the trial court here on the offer of the deposition in evidence. Or indeed the Florida District Judge might terminate the deposition on the ground of the witness’s incompetency if it clearly appeared. But Rule 30(d) is limited by its terms to a deposition conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress. Such is not the case here. But even if the Rule extended to the present situation, it would be undesirable to apply it here and have the competency of the witness determined by a judge who is not a member of the court in which the case will be tried.
Rule 32(c) (1) preserves to the third-party defendant the right to object to the competency of the witness until the time of trial.
In these circumstances I have considered the desirability of appointing a master—perhaps one who is a psychiatrist-—-to preside at the deposition in Florida and report to the court on the witness’s mental capacity. But I have concluded that competency should be decided by the trial judge rather than a master.
Short of an order that Clark submit to psychiatric examination, which I believe unjustified and perhaps impossible, the third-party defendant is entitled to whatever psychiatric information can be made available to it. As a practical matter its right can be preserved if we permit Clark’s deposition to be taken in Florida but allow, as part of the deposition, preliminary inquiry by its counsel regarding his mental capacity and add to this the requirement that a psychiatrist may be present at the deposition so that he may be in a position to testify at the trial as to Clark’s mental competency if the deposition is offered.
I will, therefore, permit the deposition to go forward in Florida but will require as a condition that a psychiatrist selected by the third-party defendant be permitted to attend the deposition to observe the demeanor of the witness during the giving of his evidence.
In view of the unusual circumstances here involved I will require that the third-party plaintiff pay or agree to pay to the third-party defendant in advance of the deposition the reasonable expenses and fees of the psychiatrist who attends the deposition on behalf of the third-party defendant. I will also require the third-party plaintiff to pay the reasonable expenses incurred by counsel for the third-party defendant in attending the deposition in Florida.
ORDER
AND NOW, November 21, 1962, the motion for protective order, in so far as it seeks a declaration that Herbert D. Clark is incompetent to testify upon oral deposition or at trial, is denied without prejudice to the renewal of the claim of mental incompetency of the witness at the time of trial; and the motion is granted to the extent that the deposition of Herbert D. Clark may not be taken unless a psychiatrist selected by Atwell, Vogel & Sterling, Inc., the third-party defendant, is permitted to attend the deposition in Florida to observe the demeanor of the witness during the giving of his evidence, and New Amsterdam Casualty Company, third-party plaintiff, shall pay or agree to pay to the third-party defendant in advance of the deposition the reasonable expenses and fees of the psychiatrists selected by the third-party defendant, and shall pay or agree to pay the reasonable expenses incurred by counsel for the third-party defendant in attending the deposition in Florida.
. Clark claimed that he learned from an employee of Atwell, Vogel & Sterling, Inc., that Geiger had written the critical letter to Atwell, Vogel & Sterling, Inc.
. Commonwealth v. Kosh, 305 Pa. 146, 156, 157 A. 479 (1932); Commonwealth v. Loomis, 270 Pa. 254, 258, 113 A. 428 (1921) ; Dulnikowski v. Stanziano, 195 Pa.Super. 508, 510, 172 A.2d 182 (1961); 2 Wigmore, Evidence (3d ed. 1940), §§ 492, et seq.
. Rule 32(c) (1) provides: “Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have-been obviated or removed if presented at. that time.”