Plaintiff attorney did not protect the record; discovery deposition of Defendant's expert can be read into evidence by Defense
Jodi Weiss allegedly suffered injury when she slipped on "coping stone" adjacent to a pool under construction by Champion Pools, LLC. The Defendants listed an expert toxicologist who offered the opinion that alcohol consumption by Weiss contributed to the fall. Weiss took the Defendant's expert's deposition, but did not make a record of his intention to limit the use of the deposition to "discovery only." At trial, when the Defendants offered the deposition testimony into evidence against Weiss, Weiss's attorneys objected, arguing that the deposition represented their opportunity to learn the basis for the toxicologist's opinions and that it should not be admitted into evidence as it deprived Weiss of her opportunity to cross-examine the expert. The trial court admitted the deposition, and ultimately the jury concluded that Champion was not negligent in causing Weiss's fall.
Weiss's attorneys appealed the jury's verdict as against the great weight of the evidence and also objected to the admission of the toxicologist's deposition. The Court of Appeals noted that Michigan law allows for taking depositions that are limited to discovery of expert opinion, and provides a separate, distinct procedure for taking testimony for unlimited use. Weiss's attorneys may have intended a discovery-only deposition, however, they did not properly document their intent and in fact announced on the record that the deposition was being taken for the broader purposes allowed by Court Rule. Furthermore, the Court noted that the toxicologist's testimony was directed solely at Ms. Weiss's comparative fault and [theoretically] would not influence the jury's conclusion that Champion was not negligent.