United States Court of Appeals for the First Circuit
621 F.2d 11 (1980)
Roger Frechette and others (plaintiffs) filed a diversity tort suit against Joseph Welch (defendant) in a federal district court in New Hampshire for injuries received in an automobile accident. Welch denied responsibility, claiming that he lost control of his vehicle upon suffering an unforeseeable and sudden blackout. In support of his defense, Welch relied upon the testimony of three physicians: Turner, Zuckerman, and Blacklow. Turner, who was the earliest of the three to treat Welch after the accident, testified live at trial; Zuckerman and Blacklow did not. In lieu of in-person testimony, Welch offered the depositions of Zuckerman and Blacklow. Plaintiffs objected to the admission of the Zuckerman and Blacklow depositions at trial unless Welch demonstrated compliance with Fed. R. Civ. P. 32(a), particularly the criteria for establishing that a witness is unavailable. Despite Welch’s failure to meet the requirements of the rule, the trial court admitted the depositions. Under New Hampshire state law, depositions could be used in lieu of live testimony unless the objecting party was able to obtain the deponent’s attendance at trial. A jury decided in favor of Welch. Plaintiffs appealed, citing the admission of the Zuckerman and Blacklow depositions as bases for reversible error.
Rule of Law
Holding and Reasoning (Campbell, J.)
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