mayer v. mt mansfield

Veunont Superior Court
Filed 24
Lamo'Ola/16
e nit

VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Lamoille Unit Case N0. 22-CV-03852
154 Main Street
Hyde Park VT 05655
802-888—3887 fifi
wwwvermontjudjciaryorg

Aaron Mayer v. Mt Mansfield Company, Inc , et a1
ENTRY REGARDING MOTION
Title: Motion to Compel (Motion: 5)
Filer: Nicholas]. Seldon
Filed Date: March 19, 2024

The motion is GRANTED.

The present motion to compel concerns Plaintiff Mayer’s efforts to depose Gary
Gendimenico, an employee for Defendant VR US Holdings II, LL, the owner and operator of the
Stowe Mountain Resort. The issue between the parties is whether Mayer may ask for
Gendimenico’s opinion about a walking path under V.R.E. 701. For the reasons laid out below, the
Court grants Plaintiff s Motion.

Background
This matter concerns an alleged slip and fall that occurred on Defendant’s property in
December 2019. Plaintiff alleges that he was walking from a gondola lift station back to his car
when he slipped and fell on a patch of ice and injured his knee and back. Defendant has asserted,

among other defenses, that Plaintiff was not walking on an established or maintained pathway.
On March l9, 2024, Plaintiff started the deposition of Gary Gendimenico, a 24-year

employee of Stowe Mountain Resort, who, as Senior Lift Operations Manager, was in charge of the
lift operators and lift terminals at the Resort at the time of Plaintiffs fall. After establishing
Gendimenico’s background and experience and familiarity with the property, Plaintiff also
established that Gendimenico had reviewed the map that Mayer had created purporting to Show his

route of travel from the gondola to his fall. Plaintist counsel then asked Gendimenico, “\What

opinions did [he] make about the walking route that Mr. Mayer and his family took to the gondola?”
(Pltf. EX. 1, at 15:8—10.)
Following this question, counsel for the Defendant objected and instructed the witness not
to answer the question or any other questions about his opinion. Plaintiff’s counsel asserted the

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right to ask such questions under V.R.E. 701. Defendant’s counsel then made an objection under
V.R.C.P. 26(b)(2)(B).1 Defendant’s counsel offered to continue the deposition but stated that he
would continue to instruct Gendimenico not to answer any questions about any opinions he might
or might not have concerning the incident and walkway. Plaintiff, stating that Defendant had no
right to instruct the deponent not to answer ended the deposition and has filed the immediate
motion to compel.
Legal Analysis
While both parties have framed the present issue as a question of admissibility under V.R.E.
701, the Court must begin its analysis with the rules governing discovery and depositions. This is
because the issue of admissibility is not properly before the Court and is generally not an issue
during the process of taking a deposition, except when the Rules require the assertion of an
objection to preserve or to give the opposing party an opportunity to course correct. See Nichols v.
Brattleboro Retreat, 2009 VT 4, ¶ 8 (noting that parties, unless they stipulate to the contrary do not
have an affirmative obligation to raise an objection during a deposition because it remains the
proponent’s burden to establish the foundation for the admission of the deposition).
The relevant rules governing depositions may be found at V.R.C.P. 26, 30, and 32. Rule 26,
particularly subsection (b), sets out the general scope of discovery and available limitations to
enforce this scope. Rule 30 governs the process of depositions, and Rule 32 governs the use and
purpose of depositions. Defendant defines the scope of its objection under V.R.C.P. 26(b)(2)(B).
This section, however, is a more general limitation to the scope of discovery, and it must be read in
conjunction with the more specific objection provisions that are found in Rule 30(d), which covers
what kind of objections may be lodged during a deposition, and Rule 32(d), which addresses the
effect of objections or other errors and irregularities in depositions.
Under V.R.C.P. 30, an examiner has discretion to ask a broad range of questions so long as
they are relevant to the subject matter of the action. WRIGHT & MILLER, 8A FED. PRAC. & PROC.
(CIVIL) § 2113 (3d ed.) (2022 update). Unlike at trial, where an adverse party is limited to the scope

1 Rule 26(b)(2)(B) has three subparts. Discovery may be limited under this section if (i) the discovery sought is

unreasonably cumulative or duplicative; (ii) party has already had ample opportunity to obtain the information; or
(iii) the proposed discovery is outside the scope permitted under Rule 26(b)(1) (relevant, nonprivileged,
proportional to the needs of the case, and the benefit outweighs the burden). Of these three categories,
Defendant only seems to be contending, and the record appears to only support an objection premised on
26(b)(2)(B)(iii).

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of the direct examination, an “examiner may ask about anything relevant to the subject matter of the
action, regardless of whether it was raised on direct examination.” Id.
Under the Rules, a party seeking to object during a deposition must state the objection in a
concise and non-argumentative and non-suggestive manner. V.R.C.P. 30(d)(1). The objecting party
may instruct a party not to answer in only three circumstances: (1) as necessary to preserve a
privilege; (2) to enforce a court-ordered limitation on evidence; or (3) to make a motion that the
deposition is being done in bad faith. V.R.C.P. 30(d)(1), (3). In the present matter, Defendant’s
instructions not to answer do not appear to fall into any one of these three reasons. The question of
Gendimenico’s opinion is not a matter of privilege. It is not subject to a court ordered limitation.
There is no allegation or evidence of bad faith in Plaintiff’s questions. Instead, Defendant’s
objection appears to be one of relevance and admissibility.
To the issue of relevance, the Court cannot, at this time, make any determination of whether
Gendimenico’s opinion is relevant because it has not been stated, and there has not been a proffer
to the substance. Given his experience and familiarity with the site, it is not unreasonable to
understand that Gendimenico could have a relevant opinion about the condition, care, or suitability
of the area for walking, but until an opinion is rendered, the Court cannot rule on the relevance.
As the parties’ briefs indicates, the bulk of their dispute centers on whether Gendimenico’s
opinion, as a fact witness, is admissible under the limitations and elements of V.R.E. 701. This
issue, however, is also premature. The 1996 Reporter’s Notes to Rule 32 states that “Objections
during a deposition should ordinarily be limited to those that would be waived under Rule 32(d)(3) if
not timely made.” V.R.C.P. 32, rptr. n. 1996.
In this case, the parties had agreed at the outset to stay any objections except to form and
privilege. (Pltf. Ex. 1, at 3:14–16.) This practice is generally consistent with the Rules of Civil
Procedure and its specific discovery provisions under Rule 32. As Wright & Miller notes:
Rule 32(b) must be read in connection with Rule 32(d)(3), dealing with objections as
to the taking of a deposition. Taken together these provisions make it clear that if
the matter offered is within the scope of discovery, objection to its admissibility as
evidence should be made at the trial or hearing when the deposition is offered in
evidence and not at the taking of the deposition, unless the ground of the objection
is one that might have been obviated or removed if made when the deposition was
being taken.

WRIGHT & MILLER, 8A FED. PRAC. & PROC. (CIVIL) § 2151 (3d ed.) (2022 update).

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Defendant’s objection regarding Gendimenico’s opinion testimony falls under Rule
32(d)(3)(A) in that it goes to the question of competency, relevancy, or materiality of Gendimenico’s
statements.2 This objections under relevancy and V.R.E. 701 admissibility may in fact prove valid,
but it has been made at the wrong time.
Notwithstanding a stipulation between parties or the general rule that most objections may
be raised after the deposition, the section quoted above also highlights that a certain category of
objections must be addressed at the time, or they are waived. V.R.C.P. 32(d)(3)(B). Under this
provision, errors and irregularities occurring at the deposition must receive a seasonable objection or
be considered waived. This includes “errors of any kind which might be obviated, removed, or cured
if promptly presented . . . .” Id.
The Vermont Supreme Court has accepted that Rule 32(d)(3)(B) extends to answers that a
party may later seek to limit as speculative or conclusory. State v. Koveos, 169 Vt. 62, 68 (1999). As
the Court noted in Koveos, “we believe defendant had an obligation to make an objection, or motion
to strike, at the time of the deposition to give the witness an opportunity to reframe the answer.” Id.
(citing to both federal and state cases in support). While the Court also suggests that these
objections may be renewed in either a motion in limine and at trial, the plain language of Rule 32(d)
indicates that if they are not raised at the deposition, then they may be waived.
In looking at both this category of waivable objections alongside the general rule, there are
several points that inform this distinction. Parties take depositions for a variety of purposes, some of
which do not involve admission of the deposition at trial. The question of admissibility is dependent,
in large part, on the purpose for which the deposition is offered. For these reasons, issues of
admissibility or conformance with the rules of evidence are best saved for the pre-trial or trial
process when a protective order, motion in limine, or objection to admission can focus on the
specific offer, issue, and rule of evidence.
At the same time, there are other issues that involve the foundation of statements within a
particular deposition that the examiner may have inadvertently omitted or is assuming for the
purposes of the question. If an objection to such speculative or conclusory issues is made in a
timely manner, the parties can make a correction in real time and avoid either a discovery dispute or
additional depositions. Id. It also marks the point in the deposition where the objection is found so

2 Hence Defendant’s framing of the objection under Rule 26(b)(2)(B)’s limitation to discovery based on the general

relevance criteria.

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that if the deposition is later sought to be admitted, the party asserting the objection can pinpoint
the question and re-raise the objection.
In neither case, however, is the result an instruction not to answer. Instead, it is an
objection, made in a manner consistent with Rule 30(d)(1), which is put on the record. The
objection is then renewed either in a follow-up protective order or at the time the deposition is
sought to be admitted.
For these reasons, the Court finds that Defendant’s instructions not to answer were
improper and inconsistent with Rule 30 and 32. The Court does not reach the issue of admissibility
under V.R.E. 701 because the issue is premature given that the deposition has not been offered for
admission, and there is no testimony or proffer to evaluate for admissibility purposes.
ORDER
Based on the foregoing, Plaintiff’s motion to compel is Granted. Defendant shall make
Gendimenico available for a deposition, and Plaintiff may ask him opinion questions consistent with
his understanding and experience in regard to the area where Plaintiff was walking when he fell.
The Court further awards sanctions as allowed under V.R.C.P. 30(d)(2) for Defendant’s
improper instruction to the witness. Since Defendant lacked any basis to instruct the witness not to
testify, the Court finds that Plaintiff’s decision to stop the deposition and resolve the issue was a
reasonable decision as Defendant’s improper objection came early in the deposition and imposed an
improper limitation on the deponent’s ability to testify. Based on this finding and conclusion that
this improper instruction constituted a violation of Rule 30(d)(2), the Court directs Defendant to pay
the costs of associated with any re-deposition of Gendimenico. Plaintiff is also granted his
attorney’s fees for the costs of the present motion. Plaintiff shall submit a motion and affidavit in
support of this cost, which the Court shall review.
Electronically signed on 4/16/2024 10:51 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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