Hall v. Jung

Dist. Ct. did not err in denying plaintiff’s request to admit deposition testimonies of his wife and his physician in section 1983 action alleging that defendant-police officer used excessive force when arresting plaintiff on charge of resisting arrest. Rule 32(a)(4) allows parties to use deposition testimony in lieu of live testimony, where said witness is “unavailable.” However, plaintiff failed to establish that his wife, who claimed she had difficulties with her feet and legs, was unavailable for trial, given wife’s lack of truthfulness in instant proceedings, which indicated she gave false address for purposes of being served with subpoena, and given critical nature of her testimony that would have unfairly prejudiced defendant due to his inability to rebut her deposition testimony. Also, plaintiff failed to show that physician was unavailable, where plaintiff merely failed to secure physician’s work schedule to determine whether physician could appear at trial. Ct. further noted plaintiff had failed to preserve three other evidentiary issues by neglecting to submit relevant portions of trial transcript that addressed said issues.