The Massachusetts Appeals Court held for the first time that a witness’ deposition testimony can be used at a civil trial under the prior recorded testimony exception to the hearsay rule where the witness is unavailable due to a valid invocation of the privilege against self-incrimination.  Courts had reached similar results in civil contexts where the witness’ trial testimony was unavailable due to other reasons, such as insanity or physical unavailability.  In the underlying medical malpractice trial, our client, the defendant physician, attempted to call a former physician colleague as a witness at trial.  The witness had been deposed by the plaintiff’s attorney earlier in the case.  After the deposition and before the trial, however, he was indicted for alleged Medicare fraud and had his medical licenses suspended in three states.  The witness personally appeared at a pre-trial hearing, and announced his intent to refuse to testify, claiming privilege against self-incrimination, if called as a witness in the trial.  The trial judge deferred ruling on whether he had a right to assert that privilege.  When the witness later failed to appear at trial in response to defense counsel’s validly-served trial subpoena, the trial judge–over plaintiff’s counsel’s objection—permitted defense counsel to read portions of the deposition transcript into evidence, after first informing the jury that the doctor’s medical licenses had been suspended since the time of his deposition. 

Despite the witness’ failure to appear at trial to formally assert the privilege, the Appeals Court held that the trial judge had properly determined that the witness had sufficiently expressed—by his statements at the pre-trial hearing and through his criminal counsel’s representations to trial counsel during the trial–his intent to invoke the privilege.  But, citing case law rejecting “blanket assertions” of privilege, the Appeals Court held that the trial judge had not made the “requisite particularized inquiry” into whether the witness had a right to assert that privilege in the context of the case on trial. The record did not establish, the Appeals Court observed, that the trial judge had considered whether any particular questions or areas of cross-examination in the medical malpractice trial would have tended to incriminate the witness by “furnish[ing] a link in the chain of evidence” needed to prosecute him in his pending criminal indictment for Medicare fraud.

Nonetheless, the Appeals Court dismissed the plaintiff’s appeal, reasoning that the deposition testimony was independently admissible under Mass. R. Civ. P. 32(a)(3)(D), because, despite defense counsel’s diligent efforts to procure his attendance, the witness had failed to appear in response to the subpoena.  Because the plaintiff’s attorney had had the opportunity to cross-examine the witness at his deposition, and all other requirements of Mass. R. Civ. P. 32(a)(3)(D) were satisfied, the Appeals Court held, the admission of the prior testimony was not an abuse of discretion. The Appeals Court further rejected the plaintiff’s argument that the trial judge was required to issue a bench warrant to procure the reluctant witness’ appearance, before admitting the prior testimony into evidence.

Finally, the Appeals Court rejected the plaintiff’s contention that the admission of portions of the absent witness’ prior testimony concerning his contact with the patient, his custom and practice, and his interpretation of the medical record, was an improper admission of expert witness testimony.  Citing a trial judge’s “extensive discretion” concerning the admission of evidence, the Appeals Court held that the trial judge had properly exercised his discretion under Rule 32, and that by informing the jury of the suspension of the witness’ medical licenses, the judge had mitigated any risk that the jury would place undue weight on that testimony as expert testimony.

Michael Racette briefed and argued the appeal, after prevailing at trial.

Click here to view the full Law360 article.