shaffer v. nkhs

Termont ior Court
Filed 05/17
Caledonia

VERMONT SUPERIOR COURT CIVIL DIVISION
Caledonia Unit Case No. 21-CV-01117
1126 Main Street Suite 1
St. Johnsbury VT 05819
802-748-6600
www.vermontjudiciary.org

Daniel Shaffer v. Northeast Kingdom Human Services, Inc.

ENTRY REGARDING MOTION
Title: Motion in Limine; Motion in Limine; Motion; Motion Fourth ; Regarding Lay
Witness Opinion Evidence; to Allow Remote Testimony ofJoseph Pappas; to Use Deposition
Testimony at Trial for Certain Witnesses, V.R.C.P. 32 (Motion: 20; 23; 24; 25)
Filer: Alexander M. Dean; Alexander M. Dean; Richard J. Windish; Alexander M. Dean
Filed Date: May 07, 2024; May 14, 2024; May 15, 2024; May 15, 2024

The motion is GRANTED IN PART and DENIED IN PART.

The parties have filed several motions in limine concerning expert opinions and testimony of
witnesses. While the Court has dealt with the testimony of Dr. Sher in a separate Entry Order and

the disclosure of settlement in another, the Court will address the remaining current motions, which

the Court understands to be the following: Motion #20: Plaintiffs Motion in Limine on Expert

Causation Opinion; Motion #23: Defendant's Motion in Limine on Lay Witness Opinion; Motion
#24: Motion to Allow Remote Testimony ofJoseph Pappas; Motion #25: Motion to use Deposition

Testimony at Trial.

1. Motion in Limine on Expert Causation

Plaintiff Shaffer seek to block any and all opinion evidence on the issue of causation.
Defendant NKHS states that it does not intend to seek causation opinions from their own experts,
but it seeks to preserve the right to cross examine Plaintiffs experts and witness on their causation

opinions and prior opinions on hypotheticals that these experts have previously offered and may
offer in their direct testimony.

Defendant has a right to cross examine on issues raised during a witness' direct testimony.
Defendant also has a right to examine a witness's prior statements either for purposes of evidence or

impeachment. V.R.E. 613, rptr. n. ("[Rule 613] lays down conditions for use of prior statements
either as a basis for cross-examination or as evidence.").
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Plaintiff’s request for a blanket prohibition on expert opinion regarding causation is simply
too broad for purposes of a motion in limine. State v. Dubois, 150 Vt. 600, 602 (1988). The concerns
raised by Plaintiff are better addressed at trial and in the context of specific testimony and proffers.
The motion is Denied.

2. Motion in Limine on Lay Witness Opinion

Defendant NKHS seeks to preclude any and all hypothetical lay witness opinion from
Plaintiff Daniel Shaffer and Michael Montgomery, an employee of NKHS. As the parties note, lay
witness opinion is governed by V.R.E. 701, which requires three foundational elements: (1) the
opinion be based on the rational perception of the witness; (2) the opinion is helpful to understand
the witness’ testimony or the determination of a fact issue; and (3) it is not based on scientific,
technical or other specialized knowledge. V.R.E. 701.

As the Second Circuit has noted when examining this issue, the question of admissibility of
lay witness opinion is both a fact-specific inquiry and a matter of degree. United States v. Cuti, 720
F.3d 453, 458 (2d Cir. 2013). In this case, the scope of opinion as outlined in Defendant’s motion is
limited and appears tied to the witnesses’ personal experiences. Mr. Shaffer provided care to Jared
during his life and as his guardian, it would not be unreasonable or unhelpful to ask him what he
would have done if he had known either of Jared’s condition or his refusal to be tested. Similarly,
Mr. Montgomery’s experience in the position would appear to give him experience in dealing with
clients’ medical issues, and he is familiar with what steps his agency would take in certain cases.

As such, a motion in limine is improper in this instance as the testimony described could be
admissible. This denial has two caveats. First, nothing in this decision establishes the right to such
testimony as a matter or law or alleviates Plaintiff’s obligation to establish the foundational
requirements of V.R.E. 701 before such testimony is sought. Second, the relevancy of this line of
questioning is limited. While the Court can envision such testimony as defining the process that
would have followed if they had the additional evidence, the Court anticipates that the benefit would
not continue beyond a party’s initial hypothetical response.

For these reasons, Defendant NKHS’ motion in limine regarding lay witness opinion is
Denied.

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3. Remote Testimony of Joseph Pappas

Plaintiff seeks to allow Joseph Pappas testify remotely. Mr. Pappas is a non-party witness
who lives several hours from the courthouse and is expected to provide a limited amount of
testimony. The courthouse in St. Johnsbury is adequately equipped with large screens and relatively
fast internet connections. The Court has found the use of web ex for witnesses to be effective to
allow both direct and cross examination of a witness. Under Rule 43.1, the Court finds that factors
(1), (3), (6), (7), (8), (9), (10), and (13) are satisfied under the present facts and circumstances, and the
remaining factors are either inapplicable or do not outweigh the reasonableness of the request. For
these reasons, Plaintiff’s request is Granted.

4. Motion to Use Deposition Testimony

Plaintiff’s final Motion has three parts. Plaintiff seeks to have a determination that Dr. Sher
is unavailable for trial. Plaintiff also seeks a determination that three former Heartbeet employees
are unavailable. If so declared, Plaintiff further seeks permission to use their depositions under
V.R.C.P. 32 at trial. Nichols v. Brattleboro Retreat, 2009 VT 4, ¶ 7 (holding that the trial court must
make a determination that a witness is unavailable before allowing the admission of a deposition in
lieu of live testimony under V.R.C.P. 32(a)(3)(E)). The final request in Plaintiff’s motion is to allow
the deposition transcripts to be shown to the jury through both non-stenographic means as well as
slide projections.

Taking Dr. Sher’s situation first, the Court has already ruled that Dr. Sher is unavailable due
to his current medical situation. V.R.C.P. 32(a)(3)(D). This determination is based on two letters
from Dr. Sher’s medical providers who state in no uncertain terms that Dr. Sher is currently
hospitalized, having acute mental health issues, and is unable to provide live or remote testimony for
the trial and the immediate, foreseeable future. As an unavailable witness, Dr. Sher’s deposition may
be used by the parties in whole or part, subject to specific objections. V.R.C.P. 32(b).

As to the three former Heartbeet employees, the record is less clear. First, none of the three
witnesses are unavailable for death, medical, or health reasons. Second, the three witnesses live
outside the state of Vermont, and they are not subject to the jurisdiction of Vermont or the
subpoena power of V.R.C.P. 45. Third, Plaintiff has represented, and the Defendant does not
dispute, that neither New York, nor Oregon, where the parties live permit or enforce subpoenas
from other jurisdicitons compel a non-party witness to attend a trial.
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21-CV-01117 Daniel Shaffer v. Northeast Kingdom Human Services, Inc.
Under Rule 32(a)(3)(E), the Court must make a finding and determination of unavailability.
Nichols, 2009 VT 4, at ¶ 7. As Nichols notes the strong preference in Vermont and in any state is for
live, in-person testimony. Id. at ¶ 6 (citing V.R.C.P. 43(a)). To be eligible for the exception to this
general rule, a party seeking a ruling of unavailability must demonstrate that the witness is (1) absent
or likely to be absent from the hearing, and that the proponent has (2) been unable to procure the
witness’ attendance by process or other reasonable means. V.R.C.P. 32(a)(3)(E).

The dispute in this case is not along element (1), it lies with whether Plaintiff has employed
process or other reasonable means to secure the witnesses. In this respect, the sole issue is whether
Plaintiff engaged in reasonable diligence, which must be read into the rule as an element compliance
with the second prong. Williams v. Johnson, 278 F.R.D. 1, 5 (D.Ct. D.C. 2011).

In this respect, the Defendants note that despite the fact that this case was originally filed in
federal court nearly seven years ago and then filed in state court three years ago, and despite notice
from the Court that it was setting this matter for trial in the fall of 2023, which became the winter of
2023–24, and despite the knowledge in the early part of 2024 that the trial was moving forward,
Plaintiff did not begin to inquire about the three witnesses until one month before trial and has, to
date, not issued any subpoena or attempted to serve the witnesses with any process to compel.

In response, Plaintiff has pointed to conversations and exchanges with Attorney Pocius who
represented and continues to represent the individual parties. Plaintiff also points to the futility of
any effort to subpoena the witnesses through state or out of state process. In this respect, the facts,
of the present case are distinguishable from Williams. While both cases arguable involve efforts
close to trial to secure the testimony of a non-party witness, the party seeking to have the witness
deemed unavailable in Williams only started the subpoena process 8 days before trial, and there is no
evidence that the witness was beyond the subpoena power of the Court or otherwise unavailable
apart from a desire not to testify. Williams, 278 F.R.D. at 3 (noting the timeline of the subpoena and
the fact that the witness lived within the district court’s jurisdiction). In this case, Plaintiff did begin
the process of obtaining the four witnesses at a late date but still earlier than the week before trial.

Nevertheless, the controlling issue here is not necessarily the time when Plaintiff started to
seek to secure witness attendance, but the availability of process or other means to obtain the
witnesses’ testimony. In this respect, Defendant has not pointed to any process or mechanism
where Plaintiff could have compelled the witnesses, given that neither New York nor Oregon have

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provisions that would allow a Vermont subpoena to compel attendance at a trial to be domesticated
and served on the witnesses that would be legally binding or enforceable.1 Plaintiff has represented,
and the record demonstrates, that he did seek to secure the witnesses’ testimony through their
counsel, who also represented the former Defendant Heartbeet and agreed to have them testify
remotely under V.R.C.P. 43.1. These efforts were unsuccessful, which leaves the question of what
else Plaintiff could have done to secure the appearance of these witnesses for trial, even if Plaintiff
had started 60 days before trial. See Saget v. Trump, 351 F.Supp.3d 251, 256 (E.D.N.Y. 2019)
(allowing use of depositions where witnesses refused to attend and were beyond the subpoena
power of the court).

Defendant notes that notwithstanding any limitations on securing a witness’ appearance
through agreement or subpoena, Plaintiff still had recourse to noticing a trial deposition at some
point prior to present week before trial. Defendant’s argument is that a trial preservation deposition
would have been enforceable and with some effort, could have been secured. This argument, while
practically valid, raises an issue. Can the Court prevent the use of a discovery deposition under
V.R.C.P. 32(a)(3)(E) because the proposing party failed to take and secure a trial preservation
deposition? The answer begs the question of whether one type of deposition is legally superior to
another. In other words, can the Court block the use of one deposition (an earlier discovery
deposition) for failure to seek or obtain another deposition (trial preservation)?

While there is a difference in the quality and nature of such depositions, Rule 32 does not
distinguish between depositions taken for different purposes. Rule 32 does not contemplate the
exclusion of one deposition for lack of another, and in fact, courts have held that the failure to allow
a discovery deposition because it was not a trial preservation deposition is reversable error. Battle ex
rel. Battle v. Memorial Hosp. at Gulfport, 228 F.3d 544, 551–52 (5th Cir. 2000). Thus, the Court must
reject the distinction offered by Defendant as inconsistent with the rules. While there may be
multiple reasons to secure a trial preservation deposition after it becomes apparent that a witness not
available, and while the Court would like favor such a deposition over an earlier discovery

1 While Defendant notes that there was no exploration of a subpoena to compel remote testimony, this is an issue

where the rules and statutes have not caught up to the technology. Defendant does not cite, nor could the Court
find where either New York or Oregon has adopted any power to compel or enforce a motion for a non-party
witness to attend a civil trial through remote means. While such changes are likely to come as remote technology
improves and becomes more widely used, the rules do not recognize this distinction or provide a mechanism to
secure testimony through this method.

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deposition, the absence or failure to secure one does not affect or preclude the use of the other so
long as the issue of availability has been resolved.

For these reasons, the Court concludes that the witnesses are unavailable for the purposes of
Rule 32(a)(3)(E), and Plaintiff may introduce their depositions at trial in lieu of their direct
testimony.

The last issue is Plaintiff’s request to have slides prepared from the deposition transcripts
and projected on a screen for the jury to see either during the introduction of the deposition and/or
during any argument. Defendant objects. The Court will not allow slides or any other
demonstrative exhibit or projection of the depositions. Rule 32 allows depositions to be used for
testimony, but the Rule is only intended to allow this as a substitute when live testimony is
unavailable or impossible. Given that no other testimony in this trial will have projected portions
broadcast for the jury, it would be prejudicial to allow it for the depositions.2

Therefore, the Court will not permit Plaintiff to use slides or other visual depictions, which
will have the effect of emphasizing or improperly elevating deposition testimony over live testimony.
Plaintiff may introduce the depositions in one of the two ways. If any of the depositions were
recorded by non-stenographic means, that video may be played to the jury to present the testimony.
If the depositions were not recorded in such a manner, the depositions will be read into the record.
The attorneys may read the questions consistent with either their roles in the deposition or their
position in the trial. Court staff shall read the witnesses’ responses into the record in response.

ORDER

The Court grants and denies the pending motions as follow: Motion #20: Plaintiff’s Motion
in Limine on Expert Causation Opinion is Denied. Motion #23: Defendant’s Motion in Limine on
Lay Witness Opinion is Denied. Motion #24: Motion to Allow Remote Testimony of Joseph
Pappas is Granted. Motion #25: Motion to use Deposition Testimony at Trial is Granted in part
and Denied in part. The four witnesses for which Plaintiff seeks to introduce their deposition
testimony are hereby deemed unavailable under V.R.C.P. 32(a)(3)(D) and (E). Their depositions
may be used in lieu of their testimony at trial under Rule 32 and subject Rule 32(b) objections.

2 If the parties come to an agreement about demonstrative exhibits to allow snippets of any testimony, the Court

may revisit this decision at trial for the limited purpose of closing arguments and to the extent that the parties
would seek to have the deposition transcripts treated in a similar fashion to live testimony.

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Plaintiff may not use visual slides or other demonstrative exhibits of the deposition transcripts to
visually display the witnesses’ testimony. The depositions may either be played into the record if
recorded in an non-stenographic manner, or if not, then read into the record in a manner consistent
with this decision.

Electronically signed on 5/17/2024 12:26 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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