*1 TIRE & RUBBER COMPANY FIRESTONE THE HANLON v Opinion of the Court Summary —Discretion. Motions —Witnesses—Pretrial 1. motion, prohibit any required to trial hear a judge is not A expert witness because of defend- testimony from defendant’s pretrial summary, comply the terms of the with ant’s failure employed comparable at for to that trial framework within a evidence; making the motion is presentation present it go motion and to the required with the forward adversary party provide judge then must and the court motion; moving party’s opportunity answer the with an thereafter, judge his discretion. exercise Injustice— Summary —Manifest Trial —Court Rules —Pretrial 2. Appeal Error —Discretion. rule, of the a court a modification terms of Pursuant to the if, presid- opinion permitted pretrial summary in the is prevent necessary ing judge, in order modification appellate injustice”; will not reverse the court "manifest appears there has been a clear judge’s it discretion unless 301.3). (GCR 1963, of discretion abuse Summary Witnesses—Expert Witness —Pretrial 3. Trial — —Dis- cretion. allowing by abusing his err discretion Trial did not testify expert at over witness to trial defendant’s comply objection failed to with the terms that defendant summary limited pretrial in the case had been where the issues [6-9] [1-4, [5] Consideration, Power 5 Am Jur 53 Am duced without rately, 2 ALR2d 1061. 29 Am Jur distinguished 8] of court to 53 Am Jur, Trial 137. 2d, Appeal and Error 737. References 2d, Jur, objection, 79 ALR2d 915. determining Evidence § § adopt general from Trial exercising 11.§ for Points facts, § rule its discretion in each of inadmissible in Headnotes requiring pretrial conference evidence case intro- sepa- Firestone Tire pleadings early stages from were not affected expert testify, permitting did defendant’s take the prior expert thereaf- prepare requested ter further time to neither for trial nor *2 alleged any prejudicial resulting on their effect case from the witness, expert delay deposing in the and the technical nature required presentation expert of the case testi- mony adequately its attempt to establish own case and to to plaintiffs’ proofs. rebut Evidence—Interrogatories—Admissibility—Court 4. Trial — Rules. of a introduction into evidence defendant’s answers to the permissible interrogatories is where the answers "relevant”, by introduced the are defendant within the mean- ing rule, portion interrogatories to a court another of the plaintiffs by previously only introduced where that intro- necessary misimpression duction would be to avoid or unfair- (GCR1963, 302.4[4]). ness Evidence—Hearsay—Appeal
5. Trial — and Error —Harmless Er- ror. by permitting hearsay Trial committed harmless error testimony jury light to be read to the in where of the limited improperly hearsay, nature of the admitted its source and the jury exposed testimony fact that the was to identical from an defendant, employee in-court witness who was also of the hearsay prejudicial the admission of the was not in or itself reasonably jury by highlighting could have influenced the testimony expert. court of defendant’s
Separate Opinion Coleman, M. S. Interrogatories—Tire—Evidence—Admissibility. 6. Trial — supplied by Information defendant’s counsel was relevant portion interrogatory previously by another of the introduced plaintiffs properly and was allowed where intro- part questions duced of the and answers of put indicating which were defendant that defendant’s inspection of a tire disclosed no wear use unusual or and that many defendant was also unable to determine how miles the supplied tire had been driven and the information defend- reading remaining gave ant’s of the and answers qualiñcations name and of the his examiner and contained capability conclusion that the tire lost its to retain inñation 391 foreign object through
pressure of a cut tire as a result quite misleading by plaintiffs body; portion was read portion question. reading unfair without Depositions Evidence—Hearsay—Objection. —Court Rules — rule, provisions "[sjubject providing of subrule Court 308.3, hearing trial or objection be at the to receiv- made any deposition part any ing thereof for reason in evidence require the exclusion of evidence if the wit- which would testifying”, interpreted present then should ness were regard depositions eliminating hearsay objections with 302.5). (GCR1963, Depositions—Interrogatories—Evidence—Court Rules. 8. Trial — part rule, Despite language sweeping of a of a court part only provides of a is offered evi- that ”[i]f require party may party, an adverse him to intro- dence introduced, any is relevant to the duce all of it which parts", applicable may introduce made subrule, interrogatories by answers another it seems clear permit "any party” intro- that the rules of evidence do not *3 interrogatory parts” "any it introduced duce an once however, evidence; party may require any that adverse interrogatory part of is relevant intro- "which 309.4). (GCR1963, 302.4[4], be read duced” Interrogatories—Evidence—Admissibility. 9. Trial — Although proceeded assumption on the a trial erroneous interrogatory parts that was used all of it were once an admissible, proper result was achieved where the and answers which defendant had read were limited and rele- exerpts introduced; vant to was defendant entitled demonstrate the context from information which the was derived. Levin, 1, Appeal from Court of Appeals, Division J., JJ., Valkenburg, P. and V. J. Brennan Van affirming Burdick, Wayne, Benjamin D. J. Submit- (No. 1973, ted 1973. December 1 December Term 54,523.) Docket No. May Decided 44 Mich 1App affirmed.
Complaint by Margaret Richard Hanlon Tire Co Hanlon v Firestone op the Court against Firestone Tire & Com- Rubber Corporation, pany, General Motors and Paul Mc- Inc., Chevrolet, for damages Glone for injuries from resulting an automobile accident caused by failure. tire General Motors and Paul McGlone Chevrolet, Inc., dismissed as defendants. Verdict judgment defendant. Plaintiffs appealed for the Court of Appeals. Affirmed. appeal. Plaintiffs Affirmed. Miller,
Lopatin, Bindes & Freedman and Zemke C., Lustig, & P. plaintiffs. for Butzel, Gust, Long, Klein & Van Zile (by James Jr.), D. Kasiborski, Ritchie and Chester E. for defendant.
Swainson, J. Plaintiffs’ appeal from the Court of Appeal’s affirmance of a jury verdict no cause of action in this products case.1 liability
Plaintiffs commenced this action in Wayne County damages Circuit Court to recover for bodily injuries sustained 1965 when their automobile went out of control after blowout in its left front alleged tire. Plaintiffs the blowout resulted from the defective manufacture of the tire. De- fendant argued denied It liability. the tire failure was caused a cut from a foreign object and was the result defect present tire.
I *4 10, On December pretrial 1968 a conference was held this 1963, case under the of direction GCR 301.1. As a result of the conference a pretrial 1 Co, The Hanlon v Firestone Tire & Rubber 1; App 44 Mich (1972). NW2d 722 the Court of according the court
summary was issued 1963, In relevant 301.3. the provisions GCR summary stated:
"EXPERT WITNESSES: Forney Loren J. their plaintiffs have "The will defendant, Tire & Rubber expert witness. expert witness from their com- will have an Company, plaintiffs’ counsel with name will furnish the pany and supplies expert plaintiffs’ counsel defend- of said ant, when with the address Mr. & Rubber Firestone Tire Forney.
"DEPOSITIONS: company and the "The counsel for tire experts agree may be deposition of each others agreed upon place at a time and to be between taken counsel, accomplished but this must be respective the within the next (60) sixty days.” plaintiffs’ counsel days pretrial, Six after Mr. Forney filed with the court address of Defendant, copies sent to defendant’s counsel. how- ever, expert not furnish the name of its wit- did 22, April deposition until 1970 and was ness Thus, arranged to be until June 1970. able plaintiff was not able to take the until two weeks before the start expert defendant’s July of the trial on plaintiffs’
At trial commencement objected allowing any testimony counsel witness, expert citing as the basis from defendant’s comply objection for failure with the The trial pretrial summary. terms of subsequently denied motion and expert offering allowed defendant’s to testify, explanation that: terse deposition, you
"You had chance take his *5 op Opinion the Court I it is late or not. did. don’t care It whether is within my my discretion. I discretion.” exercise now us to find that Plaintiffs ask the summary the of their motion judge treatment trial consti- 1963, under reversible error GCR tuted 301.3.2 They argue rather than placing the burden on defendant Firestone to demonstrate why the pretrial have summary should been modified "to prevent manifest injustice”, judge ignored trial 1963, GCR 301.3 to plain- shifted erroneously tiffs the burden of establishing why defendant’s expert permitted should not have been testify.
Although
expressly
we do not
approve of the
actions,
judge’s
find that plaintiffs’
we
first argu-
misperceives
ment
responsibility
of a trial
judge when
a
considering
motion under GCR
assertions,
301.3. Contrary
judge
a
is
required
to hear
the motion
a
within
frame-
comparable
work
to that employed at trial
for the
presentation
of evidence. The
making
motion,
course,
required
is
go
forward with
the motion and present
it to the court. The judge
provide
must
then
adversary
party with an
opportunity to answer
moving
party’s motion.
Thereafter,
the judge may exercise his discretion.
Pursuant
to the terms
1963, 301.3,
of GCR
a
waiver is
manifest
the furtherance of
party
issues
attorneys
items herein stated. The
course of the action unless
on which
rule
"The
GCR
results of the
amplify
in
shall be
have
support
injustice.
recorded
actions
been
record,
301.3:
deprived
shall
modify
expressly
pretrial
may
The court
justice
at least 10
prepare,
the said
of the
issues
summary
conference
placed
waived at the
but not
pretrial procedure
may provide by
modified
summary
file,
right
days
raised
for
and cause to be served
of results controls the
in advance of
in conflict with
specifically covering
consideration
present competent proof
at
of results.”
pretrial
or before
rule
pleadings
as herein
conference and such
trial,
pretrial
trial
these
unless
summary
provided
each of the
subsequent
rules.
upon
calendar
prevent
also
at the
such
No
in
391 op
the Court
summary
permitted
pretrial
of the
modification
judge,
if,
presiding
a modifica-
in the
opinion
prevent
a "manifest
in order
is necessary
tion
*6
Winshall,
667;
374 Mich
133
v
Bednarsh
injustice”.
(1965).
appellate
court will
An
not
202
NW2d
it appears
unless
decision
judge’s
the
reverse
abuse of discretion. Clark v
a clear
has been
there
180, 183;
Judge,
194 Mich
160
Circuit
NW
Berrien
Cemetery Association
v
(1916); Brookdale
409
14, 18-19;
(1955);
Lewis, 342 Mich
Our review of the
abusing
erred
his
judge
the trial
indicate that
expert
allowing defendant’s
witness
discretion in
to this
factors lead us
testify at
trial. Several
to
First,
issues in the case had been
the
conclusion.
stages
pleadings
and
early
limited from the
expert
permitting
not affected
defendant’s
were
Second,
deposi-
did take the
testify.3
to
3
design
original
underlying
development
purpose
the
The
of
parties
pretrial proceedings
involved in the case and
have
Pre-Trial
the
was to familiarize the
with
issues
to
the number of issues that
narrow
would
Sunderland,
Theory
trial.
and Practice of
be resolved at
Procedure,
(1937);
Miller,
Wright
L
215
6
36 Mich Rev
(1971).
Procedure, p
Today, although nar
566
Federal Practice and
rowing
singular
in a
is not the
function of
the issues involved
case
primary
proceedings.
practice,
goal
pretrial
it remains the
of these
Hawkins,
See,
1963, 301.1;
Michigan
Honigman
Rules
2
&
Court
GCR
(2d ed),
indispensable
pp
Annotated
tool
trial.
6-8. Limitation of issues is an
surprises”
"traps
at
the
of cases and reduces
settlement
(1957);
Wechsler,
636, 650;
Applebaum
v
350 Mich
87 NW2d
Sunderland, supra,
strictly
accordingly
225. Courts
tend to
follow
summary
pretrial
when a
therefrom would
terms of
deviation
at
a modifica
affect the issues
be resolved
trial. In
event that
agreed
pretrial
scope
previously
summary
of
of
tion
affects
issues,
judge’s
subject
upon
to more
the trial
discretion will be
scope
stringent
than in
cases
standard
review
those
where
Cleveland,
Compare,
not been
Scott v
the issues has
Mich
affected.
(1960)
322;
Snyder
NW2d
v New York Central
103
Co,
with
(1966)
38;
Transport
App
v
4 Mich
Pretrial proceedings, pretrial which the sum mary an intregal part, received their first signif *7 icant use in country this the courts of the State of Michigan.5 Today, pretrial proceedings are indispensable for the speedy tool and just resolu tion of civil disputes. They designed are to famili parties arize the and the court with the issues and proofs involved ain lawsuit parties so that can appraise accurately their cases. Their effectiveness is derived not only from the substance of our court rules, but also from discretionary supervision If judge. were not allowed to pretrial deviate from the when summary reason ably necessary prevent a manifest injustice, this tool designed to promote open presen and fair tation of evidence at trial could frustrate easily Cf. Co, Clark objectives. those Pennsylvania R (CA 1964). 2, 1006, 328 F2d 591 Cert den 377 US 1943, 84 S 12 Ct L Ed 2d 1054 (1964). 4 See, Snyder Transport Co, supra; v New York Central Coles v Galloway, supra. 5Sunderland, Theory Procedure, and Practice of Pre-Trial 36 (1937).
Mich L Rev 215 558 the Court
II case, plaintiffs’ plain- During presentation under the author- into evidence read tiffs’ counsel 302.4(4) 1963, plaintiffs’ 309.4 and of GCR ity defendant’s 6, answers 7 and interrogatories dated Decem- from a set of thereto support plaintiffs’ theory 1967 in order ber improper from the man- resulted blowout tire. ufacture of the
on the of the tire? [7] [6] " " A. No. ’A. " " tire? (under 'Q. 'Q. Did Did oath) your your examination No. inspection reflect reflect any unusual wear unusual use approximately how [8] " A. Not determined.’ '"Q. Based upon your many miles did the tire have on ” examination of tire, it? quoted questions the above after Immediately jury, to the defense counsel indi- had been read remaining his desire to have the cated court interrogatories the December portions of jury. objected read to the Plaintiff defendant’s grounds remaining if the on the request de- were introduced portion of fendant, contained therein answers self-serving hearsay inadmissible state- would be objec- ments. The trial court overruled *8 indicating right had the tion that defendant remaining questions insure that read the in con- read were considered previously read the jury. text Defendant’s counsel then by 29, 1967 inter- remaining portion of the December rogatories jury: Firestone Tire Co Opinion of the Court "Mr. question Ritchie: The first counsel] [defendant’s
reads: " subject Q. is the 1. Was the tire which matter of agents?’ by lawsuit this examined 6, on February "And the which was furnished answer 1968, states: " ’A. on represented A tire behalf of to be subject lawsuit was matter this examined Company.’ Tire Rubber & question: "The second " 'Q. inspection 2. What reveal? did " capability A. The tire lost its retain inflation .to pressure foreign object through result a cut body. the tire " 'Q. performed 3. Who on examination the tire? names, special jobs, Please their training. list " A. Engineer. H. Cox. Twenty- John Senior years’ experience engineering, three tire with techni- responsibilities design cal for performance. and evaluation of tires analyses of tire " 'Q. 4. What conclusions were drawn from the in- spection?’
"And the says answer refers back to Answer which that the tire was cut. [plaintiffs’ "Mr. Miller: Just read the answer counsel] comment, if you
without will. "I object comment, your would his Honor. your objection. "The Court: Overrule I see no reason making objection
for at all. "Proceed. 'Q. "Mr. people Ritchie: Which of exam- who your
ined the tire on behalf are able to render opinion as to the reason the tire failed?’ "And we refer back to Answer No. 3 named Cox, Engineer. John H. Senior Tire " 5(a). 'Q. given What reasons were for tire’s people examined failure who the tire?’
"And the question answer for that referred back to Answer 2. No. get then
"And we to No. which Mr. Miller read. signed "The Court: Who the answers? *9 558 Mich the Court signed by Floberg, John F. were “Mr. Ritchie: These General for
Vice-President, Secretary Counsel The Company.” Rubber Firestone Tire & ruling by the adverse this appeal Plaintiffs dispute the fact do not The parties judge. jury read to the defend- material normally when hearsay be inadmissible counsel would ant’s Accordingly, left we are by defendant. offered First, must we decide legal issues. resolve two were properly admitted statements whether these 302.4(4). Second, of GCR authority under admissible, must we were if the statements in admission this case if fact of their decide error. constituted reversible analysis of this first In a correct opinion our Judge in by then Levin his was set forth issue below, in this dissenting filed matter opinion (1972), we take the liberty 4-6 which App quoting part: trial, lawyer into the Hanlons’ read evidence "At interrogatories to certain which the Firestone’s answers lawyer Firestone’s was then Hanlons had submitted. permitted, into his objection, to read evidence over interrogatories. majority client’s to other answers ground ruling on the uphold this trial court interrogatories was portion which Firestone permitted present jury to the the was relevant I portion Hanlons. dissent because introduced portion permitted was my opinion the which Firestone meaning was not 'relevant’ within introduce 1963, 302.4(4), provides: GCR " only part of a offered in evidence 'If is to introduce party, party may require him a all of it which any adverse introduced, and part relevant parts.’ party may introduce any limita- literally impose rule "While this does not Firestone, may itself party, tion what as the adverse on can speaking only of what an adverse introduce — v Firestone Opinion of the Court Hanlons) (the 'require’ offering party to introduce— it is clear that Firestone can introduce as of its only own case those and answers which Hanlons, compelled the offering it could have party, as the *10 question to introduce.1 The then is parts what Firestone, party, properly compel could adverse as the Hanlons, offering party, to the as the introduce. 1 (see 302.4(4) 1963, provides accompanying "GCR text for the sub-rule) complete language 'any party may any this of introduce parts’. (Emphasis supplied.) argued other Firestone has not that the parts sought of the which it answers to introduce were by phrase. only interpretation made admissible this use The this reasonable of phrase right parties of is that it reaffirms the other to make such deposition by the of is of remainder the as countenanced GCR 302.4(1)-(3). 1963, Swanson, 35, 43; v Miller, 248 LaBelle Minn 78 Cf. NW2d 358, (1956); Wright Procedure, 363 8 & Federal Practice & 2148, pp § 464-465. parts interrogatories sought by "The of the to be introduced Fire- were appear They stone interrogatories 309, to do have been otherwise admissible. party 1963, to addressed a were taken under GCR distinguished deposition as from a of a on witness written 1963, interrogatories GCR under report Firestone, interrogatories, "The in its answers of opinion concerning of Cox witness cause of the blowout stands ” merely 3, self-serving hearsay. See fn. infra. 302.4(4) "The repeat words of Rule verbatim the 26(d)(4). language P, of former2 FR Civ Westinghouse In Corp Electric v Wray Equipment Corp, 491, 286 F2d 494 (CA 1, 1961), the Appeals United States Court of for the 26(d)(4): First Circuit declared of Rule " provides 'The rule a averting, method of so far as possible, any misimpressions depo- from selective of use testimony. opposing sition the rule to party is entitled under statement, any have the of any context qualiñcations part deponent’s made as a testi- mony put also into (Emphasis supplied.) evidence.’ P, 26(d)(4) P, replaced 32(a)(4), "FR Civ has been FR Civ which provides: " only part deposition 'If party, a is oifered in evidence a party may require part any adverse him to introduce other which ought party may introduced, part any in fairness to be considered with the any parts.’ supplied.) (Emphasis introduce other regard "I articulating would merely the new formulation as with greater clarity policy Miller, Wright of the old rule.. See 8 & Mich 558 op the Court Procedure, p 464; 4A Practice & Moore’s Federal §
Federal Practice, 32.06.” ¶ Honigman and write: Hawkins "Similarly, Messrs. " only portion a a party a'If introduces 302.4(4) evidence, permits party an adverse sub-rule all it is of which relevant to require him introduce addition, any In is introduced. parts deposition. may later introduce designed is clear. It is the rule The reason for may result if statement prevent unfairness which ’ (Emphasis supplied.) Honigman out of context. taken (2d ed), Hawkins, Rules Michigan Court Annotated & comments, 302.4, p 59.3 authors’ Rule 3,, may "p^us, be used at answers answering party testimony by impeach or as substantive evidence only. against cannot be used on behalf of The answers him and him except answering party, related answers to the extent that taking single put prevent answer the unfairness evidence to Hawkins, Honigman (Emphasis supplied.) 2 & Michi- context.’ out of gan (2d ed), comments, p Rule authors’ Court Rules Annotated *11 160.” allowing the provision the of court rule
"Unless to the of parts deposition of read is limited kind a the 'rele- by these authorities —if word case referred every interpreted loosely in almost is case vant’ —then deposition a would entitle the adverse the use of offering party to introduce the rest of party the it himself. to be relevant other force the deposition, the adverse to introduce or allow any deposition likely Every part almost theory parts to the other on some presumably parts
since all of a are to the issues in case. relevant construction, opinion, my "In a a con- more sensible truly a struction which makes the intended limitation limitation, permit only would introduction of that 'misimpression’ necessary to or 'unfair- which is ness’.” avoid adopt legal analysis on While we Justice Levin’s designated issues, two differ the first of our we with his conclusion that of this case facts Tire Co 571 v Coleman,, M. S. verdict. jury’s The only require reversal the jury by the improp- introduced that was fact that an experi- admitted was erly employed by defendant com- engineer enced tire the tire had been cut by concluded pany hearsay testimony was identi- foreign This object. properly that was delivered in testimony to the cal who the employee-expert jury court general qualifications the same possessed knew engineer those attributed tire and biases as interrogatories. light In speaking through of the improperly the limited nature admitted and the fact that hearsay, jury its source was from an exposed testimony to identical in-court employee witness who was also defend- ant, we do not believe admission of the in itself or hearsay prejudicial reasonably was jury by highlighting could have influenced the See, testimony expert. court of defendant’s GCR Hawkins, 529; Honigman Michigan 3 & (2d ed), Cf. 227-228; p Court Rules Annotated Co, 184 Newton v Consolidated Construction Mich Richards, 63, 72; (1915); Weaver 156 NW (1909). 320, 325; NW opinion, In our the trial committed harm- permitting less error hearsay testimony be read to the jury.
Appellants raise additional claims of error. These, find, adequately we were answered opinion below.
The decision of the Court of is affirmed. Appeals *12 Kavanagh Kavanagh, J., M. T. C. and T. G. Williams, JJ., Swainson, concurred J. with (to affirm). Coleman, opinion
M. S.
J.
This
II
speaks
part
opinion.
of Justice Swainson’s
FACTS plaintiffs injured The when were their car ran guard expressway They into an rail. claim that the accident when a tire occurred manufactured ruptured. defendant
During plaintiffs sought place "to into evi- questions dence and answers of put they defendant, which were granted answered under oath.” The court the re- quest. plaintiffs The then introduced of the indicating interrogatory inspec- that defendant’s tion of the tire disclosed no unusual wear or use and that defendant was also unable to determine many how miles the tire had been driven. immediately sought Defendant "to have the counsel read all the and an- "[everything swers”. The court said in the file is in evidence” and defendant could "read the rest of it because it is out of context”. Plaintiffs’ counsel objected and was overruled. supplied by reading
The information remaining questions gave of the and answers qualifications name of the examiner. It con- capabil- tained his conclusion that the tire "lost its ity pressure to retain inflation as a result of a cut by foreign object through body.” the tire jury returned a verdict of no cause of ac- Appeals saying tion. The Court of affirmed supplied by the information defendant’s counsel portion interroga- "was relevant to another of the tory previously plaintiffs” introduced properly agree was Appeals. allowed. I with the Court of portion fact,
In read quite misleading was and unfair without the read- ing portion question. *13 v Firestone Opinion by M. S. Coleman, J.
RULES Rule 309.4 that answers provides to interrogato- the same "may ries be used to extent provided for the use deposition in subrule 302.4 aof of a reads, 302.4 party”. part: Rule upon hearing "At the trial or of a motion or an proceeding, part interlocutory so far as used any deposition, or all of a evidence, under the of admissible rules against any party present represented who was or taking deposition at the or who had due notice thereof, any in accordance with 1 of following provisions: "(4) only If part of a is offered in evidence party, party may require an adverse him to all it part introduce duced, of which is relevant to the intro- any party may any parts.” introduce
DISCUSSION The trial judge did not make a true determina- tion of the admissibility of the answers to the interrogatory. He believed that once the interroga- tory evidence, was offered as all material con- tained therein was admissible. obviously This does rule, accord with the language of the court but saved the facts. allege
Plaintiffs that responses introduced by defendant are self-serving and hearsay. These alle- gations are worthy consideration.
Rule 302.5 reads: "Subject provisions 308.3, to the objection subrule may be made at hearing the trial or receiving any deposition evidence thereof for reason require which would the exclusion of the evidence if the present witness were then testifying.” I interpret this as eliminating hearsay objections Coleman, Opinion by M. S. The question remains regard depositions. with interrogato- control as to it as to whether should 302.2 only Rule provides 309.4 ries. Rule interrogatories. By use its apply 302.4 implies nonspecified Rule 309.4 specificity applicable. *14 rules are not supported the differences a conclusion is
Such interrogatories. deposi- A depositions and between proceeding with tion is taken an adversarial interroga- An and examination cross-examination. answering party respond to a tory permits careful, possibly evasive manner thoughtful and to examination on the re- being subject without oath, under sponses. Although given answers misleading. unresponsive An simply be may being response deposed when more individual’s testimony responses related trial than closely interrogatories. 309.4 is from former Federal
Rule drawn Kooman, In 3 Civil 33. Federal Rule of Procedure 33.26, these con- Civil Practice the author draws § interrogatories: use clusions about opponent’s "Normally, party’s answers inter- rogatories self-serving are are declarations and party making on behalf of the the answers admissible though they may against party. that be admissible However, original where an answer was introduced it, against party making party is entitled to to tend read into evidence other answers which explain original or correct the answer. And an answer interrogatory on may to an not be in evidence received party making party behalf of the it where the adverse (Emphasis opportunity had no for cross-examination.” added.) and analysis Wright A similar is made in 8 Procedure, Miller, 2180: Federal Practice and § Coleman, Opinion by M. S. using with answers to problem associated major "The comes from the hearsay interrogatories at the answers of an ad- party may introduce One rule. verse opponent. party They of a party an admission as party impeach another by any may also be used gives testimony incon- the stand party who takes interrogatories. party A his answers with sistent his own answers to an ordinarily introduce cannot opponent’s serving not admissible they self- interrogatories, since would be of one defendant are The answers statements. defendant, against another unless exception hearsay some they should fall within properly answers are intro- party’s If rule. some of duced, gave the answers be allowed who explain or correct the answers to introduce other added.) "(Emphasis already introduced. answers Holtzoff, Federal Practice Also see 2A Barron Procedure, § to the Federal rules mod- The 1970 amendments answers to ify permit Rule 33 to permitted by "used to extent the rules of *15 Advisory evidence.” The Committee’s Note Proposed Draft of the Rules said:
"The use of answers to at is subject provisions made governing refers, tories, to the rules of evidence. The depositions, presently use of to which Rule 33 apposite interroga- entirely are not to answers to deposition practice contemplates that all since parties nation.” ordinarily participate through cross-exami- will 302.4(4) it
Despite sweeping language do not seems clear that the rules of evidence parts” permit "any party” "any to introduce other evi- interrogatory of an once it is introduced as However, indicate, quotations dence. as the above of the party may require any part an adverse part "which is intro- interrogatory relevant duced” read. be Mich 558 Coleman, Opinion by M. S. 302.4(4) Rule say Hawkins "is
Honigman which may unfairness result if designed prevent out of context.” In their statement is taken they conclude Rule comments not use the may interrogatory answering that related answers be "except to the extent the unfairness of prevent taking in evidence put context.” single out of answer support these conclusions. Other commentators 302.4(4) former Federal from Rule Rule is drawn 26(d)(4). Kooman, 3In Federal of Civil Procedure Practice, 26.21, following analysis Civil § made: avoiding, requirement provides a method of "This possible, misimpressions from selective use of any
far as deposition testimony. opposing party is entitled statement, the rule to have the context of under part deponent’s of the any qualification made as a spirit testimony, put in evidence. The of the rule dic- opposing party require be able to tates that introduction of such relevant parts of the reading part testimony at the conclusion of the originally introduced.” Holtzoff, 2A Federal Practice Also see Barron Procedure, § in 1970 to permit The Federal rule was amended part ought "any introduction fairness considered with the intro- Wright say duced”. and Miller this avoids danger "that the statement of the witness will be of his misinterpreted portions selective use qualifications out of context or with [interrogatory] the case at germaine of it omitted” —a comment bar.
CONCLUSION Appeals dissent in the Court of Justice Levin’s OpinionbyM.S. Coleman, 302.4(4). However, aim of he proper states which portion "the Firestone was that concluded was not 'relevant’ introduce within permitted rule. the court meaning” adopts analysis but not Justice Swainson He of Justice Levin. does not be- the conclusion hearsay was preju- that "the admission lieve could reasonably have influenced dicial itself the court jury by highlighting testimony This renders the expert”. alleged error harmless, he maintains. conclusions. disagree Although
I with both on the erroneous judge proceeded assumption interrogatory parts was used all of it once the admissible, proper result was achieved. The were questions and answers which defendant had read excerpts relevant were limited and Presenting introduced. the information imparted responses to the first five prohibit unfairness. To introduction prevented given this material would have introduced plaintiffs misleading impact unwarranted was entitled to demon- circumstances. Defendant strate the context from which the information was I no affirm the perceive derived. error would Appeals. Court of JJ., and J. W. did not sit in Fitzgerald,
Levin this case.