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Plaintiff Has Right to Show Expert Video Deposition Taken by Defendant
Description High court of Delaware ordered a new trial in a case where the trial judge would not allow the plaintiff to show a videotaped deposition of the medical expert witness hired by the defendant hospital and physician in a malpractice case. While the defendants could drop the witness, once the plaintiff had listed that witness before the trial, they had the right to use that testimony.
Topic Court Procedure
Key Words Evidence; Videotape; Expert Witness
C A S E   S U M M A R Y
Facts Green sued a hospital and physicians for malpractice in the treatment of her hip. Defendants hired Dr. Sponseller as their principal medical expert. He prepared a written report and a deposition was videotaped in case he was not available at trial. Green viewed the videotape and then also listed Dr. Sponseller as a potential expert witness on the plaintiff's list. At trial, the defendants decided not to use Dr. Sponseller and objected to plaintiff's request to show the videotaped deposition. The trial judge ruled that the tape could not be shown if the defendants objected. The jury found for the defendants. Green appealed, contending the judge abused his discretion by not allowing the videotape to be introduced as evidence.
Decision Reversed and remanded for new trial. Before the trial, both parties were on notice that Dr. Sponseller would be used as a witness. If Green had not listed him on her list of witnesses, she could not have asked at trial for his deposition to be used if the plaintiff decided not to use him. Since she had listed him as a witness, and his testimony was critical to the case, she had the right to have his videotaped deposition shown. Green experienced prejudice because for six months before trial, she presumed that the deposition would be used at trial and had her presentation undercut during the trial when defendants were allowed to prevent the use of the testimony.
Citation Green v. duPont Institute, 2000 WL 1195478 (Sup. Ct., Del., 2000)

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