USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1470
DAWN DAIGLE,
Plaintiff, Appellant,
v.
MAINE MEDICAL CENTER, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Christine M. Rockefeller, with whom Paul R. Cox and Burns,
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Bryant, Hinchey, Cox & Schulte, P.A. were on brief, for
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plaintiff.
Gerald F. Petruccelli, with whom Mary Mitchell Friedman and
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Petruccelli & Martin were on brief, for defendant.
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January 31, 1994
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SELYA, Circuit Judge. This appeal seeks to test the
SELYA, Circuit Judge.
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constitutionality of Maine's Health Security Act, Me. Rev. Stat.
Ann. tit. 24, 2851-2859 (West 1990) (the Health Act), the
mechanics of its application in diversity suits, and the
appropriateness of sundry evidentiary rulings made during the
course of trial in the district court. After assembling the test
results, we affirm.
I.
I.
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Background
Background
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On or about April 9, 1987, while in her thirty-first
week of pregnancy, plaintiff-appellant Dawn Daigle, a New
Hampshire resident, developed symptoms associated with pregnancy-
induced hypertension. She sought treatment at Frisbie Memorial
Hospital, Rochester, New Hampshire. There, Daigle's treating
obstetrician advised her that she required an immediate cesarean
section. Because Frisbie Memorial Hospital maintained only
rudimentary neonatal facilities, the obstetrician suggested that
the surgery be performed at a tertiary-care hospital.
Following her doctor's suggestion, Daigle presented
herself at Maine Medical Center (MMC) in the early morning hours
of April 10, 1987. Examination confirmed her obstetrician's
diagnosis and hospital personnel prepared her for immediate
surgery. The preparations did not go smoothly: while a catheter
was being inserted into the jugular vein to monitor blood
pressure and provide access to medications, Daigle's carotid
artery was punctured. A hematoma then formed in Daigle's neck,
2
deviating her trachea. Consequently, although the delivery was
otherwise successful, the attending physicians were forced to
intubate Daigle while she was fully awake. Daigle was discharged
from the hospital on April 17, 1987.
II.
II.
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The Health Act
The Health Act
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Because many of the arguments on appeal relate to the
Health Act, we offer an overview of the statutory scheme.
The Maine legislature passed the Health Act in response
to an emergent crisis that threatened the availability of medical
malpractice insurance. The legislature designed the Health Act
in an effort to stem the proliferation of medical malpractice
litigation, weed out nonmeritorious claims, and promote early
settlement of meritorious claims. See Me. Rev. Stat. Ann. tit.
___
24, 2851(1)(A) & (B); see also Sullivan v. Johnson, 628 A.2d
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653, 655-56 (Me. 1993). By its terms, the Act requires parties
to submit medical malpractice claims to a prelitigation screening
panel as a condition precedent to court access, unless both sides
agree to bypass the panel hearing. See Me. Rev. Stat. Ann. tit.
___
24, 2853. Each screening panel is composed of a person with
judicial experience (such as a retired jurist), an attorney, and
either one or two health care professionals, depending on the
circumstances of the particular case. See id. 2852(2).
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A screening panel is authorized to conduct evidentiary
hearings and render a decision. See id. 2854-2855. A party
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who submits to the screening process is entitled to proceed with
3
her court case regardless of the outcome of the panel
deliberations. See id. 2858. Withal, the panel's findings
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(the Findings) are admissible as evidence in subsequent
litigation if they are unanimous. See id. When admissible, the
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Findings are to be introduced "without explanation." Id.
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2857(1)(B).
III.
III.
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Proceedings Below
Proceedings Below
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On June 28, 1988 Daigle sued MMC in the United States
District Court for the District of New Hampshire. Invoking
diversity jurisdiction, see 28 U.S.C. 1332 (1988), she alleged
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negligence relating to treatment rendered during her hospital
stay. MMC challenged the court's in personam jurisdiction, and,
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failing in its jurisdictional objection, defended on the
merits.1
In due season, the district court determined that Maine
law applied to Daigle's suit and that, therefore, the Health Act
pertained. Under the compulsion of that ruling, Daigle first
presented her case to a prelitigation screening panel which
consisted of a retired jurist, two physicians, and an attorney.
After an evidentiary hearing, the panel found no acts of
negligence attributable either to MMC or to Daigle's attending
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1MMC has cross-appealed from the denial of its motion to
dismiss. Given our disposition of Daigle's appeal, see infra,
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nothing turns on the cross-appeal. Hence, we dismiss it by
separate order. Cf. Feinstein v. Resolution Trust Corp., 942
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F.2d 34, 40-41 (1st Cir. 1991).
4
physicians at MMC,viz., Dr. Constance Taylor andDr. David Bryce.2
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Notwithstanding the panel's adverse decision, Daigle
decided to go forward. At trial, the district court, noting the
panel's unanimity, allowed the Findings to be introduced into
evidence. Thereafter, Daigle attempted to impeach the panel
proceedings, but to no avail; the court sustained MMC's
objections. The jury returned a verdict in MMC's favor on March
10, 1993. Daigle moved unsuccessfully for a new trial and then
appealed. We have jurisdiction under 28 U.S.C. 1291 (1988).
IV.
IV.
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Discussion
Discussion
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A.
A.
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The Constitutional Challenges
The Constitutional Challenges
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Appellant's main offensive comprises a host of
challenges to the constitutionality of the Health Act. She
asserts, inter alia, that the statute violates principles of
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equal protection and due process, and also impermissibly abridges
her right to trial by jury. Despite this asseverational array,
the constitutional sortie need not occupy us for long.
The short of the matter is that appellant failed to
raise these claims or otherwise to challenge the
constitutionality of the Health Act in the district court. Our
law is clear that a party ordinarily may not raise on appeal
issues that were not seasonably advanced (and, hence, preserved)
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2Although Daigle did not sue either Dr. Taylor or Dr. Bryce
in the federal court, she later sued them in a Maine state court.
That suit is still pending.
5
below. See, e.g., United States v. Slade, 980 F.2d 27, 30 (1st
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Cir. 1993); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987)
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(collecting cases). The raise-or-waive rule applies with full
force to constitutional challenges. See Cohen v. President &
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Fellows of Harvard Coll., 729 F.2d 59, 60-61 (1st Cir.), cert.
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denied, 469 U.S. 874 (1984).
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To be sure, the raise-or-waive rule is not totally
inelastic; there are exceptions to it, but, for the most part,
the exceptions are narrowly configured and sparingly dispensed.
We will, for example, relax the rule upon a showing of plain
error, see United States v. Griffin, 818 F.2d 97, 99-100 (1st
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Cir.), cert. denied, 484 U.S. 844 (1987), but appellant's
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constitutional claims do not qualify for such treatment. "Plain
error" requires the proponent to show that softening the rule is
necessary to prevent a clear miscarriage of justice, see id. at
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100, and the "errors" assigned here are, in all events, likely to
prove a losing proposition.3 We can also relax the rule in an
"exceptional case," United States v. La Guardia, 902 F.2d 1010,
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1013 (1st Cir. 1990), but we invoke that exception only when, at
a bare minimum, the omitted ground is so compelling as virtually
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3At initial blush, none of appellant's constitutional
contentions are convincing. With respect to her claim that the
Health Act violates equal protection in requiring only medical
malpractice claimants to submit to screening before proceeding to
trial, we believe that the statute is rationally related to the
legitimate legislative goal of containing the sudden
proliferation of medical malpractice litigation. See Houk v.
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Furman, 613 F. Supp. 1022, 1030-33 (D. Me. 1985). Appellant's
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due process and Seventh Amendment claims appear to be even more
severely flawed.
6
to ensure an appellant's success. See Slade, 980 F.2d at 31.
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Obviously, Daigle cannot clear this hurdle. See supra note 3.
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We hold, therefore, that appellant's constitutional
claims are procedurally defaulted.4
B.
B.
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The Section 2857 Challenge
The Section 2857 Challenge
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Next, appellant launches a barrage of interrelated
reasons aimed at showing why the district court erred, on
evidentiary grounds, in admitting the Findings into evidence.
These theories do not withstand scrutiny.
1. The Meaning of "Without Explanation". First,
1. The Meaning of "Without Explanation".
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appellant claims that the district court erred in giving literal
effect to the Health Act, which provides that unanimous panel
decisions, i.e., Findings, may be admitted into evidence at an
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ensuing trial "without explanation." Me. Rev. Stat. Ann. tit.
24, 2857. The district court interpreted "without explanation"
as preventing either side from eliciting testimony concerning the
circumstances of, and deliberative process at, the panel hearing,
but as permitting counsel for the parties to comment upon the
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4In connection with these claims, appellant also presses an
argument that the panel as constituted was biased, resulting in a
fundamentally unfair hearing and, hence, in a violation of her
due process rights. Unlike her other constitutional claims,
appellant successfully preserved this issue for review. But the
bottom line remains unchanged. Assuming, for argument's sake,
that the district court possessed the power to entertain
appellant's objection to the panel's supposed bias a matter on
which we do not opine our perscrutation of the record persuades
us, beyond serious question, that the district court did not
abuse its discretion in denying appellant's motion to set aside
the Findings and order a fresh start.
7
Findings in opening statements and closing arguments (a
prerogative which MMC desired and which appellant would sooner
have seen by the wayside).
In arguing that this protocol constitutes error,
appellant is whistling past the graveyard. Her position is
entirely undone by the recent opinion in Sullivan v. Johnson, 628
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A.2d 653 (Me. 1993), a case in which Maine's Supreme Judicial
Court interpreted "without explanation" in precisely the manner
that the district judge anticipated. The Sullivan court elected
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to read the statute "as a whole with a view toward effectuating
the Legislature's purpose of encouraging pre-trial resolution of
these claims." Id. at 655-56. Proceeding in this fashion, the
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court found that because the "Legislature's intent [was] to force
final disposition of . . . claims [that the panel unanimously
determines to be without merit] short of trial," the statutory
language only barred "explanation of the panel deliberations or
proceedings." Id. at 656. In that vein, the court specifically
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held that "it is permissible for the [parties] to utilize [in
opening statements and-or closing arguments] the admissible panel
findings as they would any other piece of admissible evidence."
Id.
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A federal court sitting in diversity jurisdiction and
called upon in that role to apply state law is absolutely bound
by a current interpretation of that law formulated by the state's
highest tribunal. See Commissioner v. Estate of Bosch, 387 U.S.
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456, 464-65 (1967). So it is here. Sullivan categorically
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8
disposes of appellant's plaint.
2. The Erie Initiative. Appellant also contends that
2. The Erie Initiative.
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the lower court erred, as a matter of federal evidentiary law,
both in admitting the Findings into evidence and in foreclosing
an opportunity for impeachment. Though recondite, appellant's
theory appears to be that section 2857 is a state evidentiary
rule and, as such, must give way to the Federal Rules of Evidence
in a diversity suit. See Fed. R. Evid. 101 (explaining that the
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federal Evidence Rules "govern proceedings" in federal courts);
see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
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Since the panel's determination is hearsay, this thesis goes, the
district court bumbled in not requiring MMC first to demonstrate
an applicable exclusion or exception to the hearsay rule in order
to justify admission of the evidence. And, moreover, appellant
remonstrates, even if the Findings were appropriately admitted
into evidence, she had a right, under Fed. R. Evid. 806, to
impeach the panelists' credibility.5
The fatal weakness in appellant's construct lies with
her premise that the Health Act's evidentiary strictures are mere
procedural rules. Authoritative case law makes clear that
federal courts sitting in diversity jurisdiction are obligated to
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5Fed. R. Evid. 806 provides in pertinent part:
When a hearsay statement . . . has been
admitted in evidence, the credibility of the
declarant may be attacked, and if attacked
may be supported, by any evidence which would
be admissible for those purposes if declarant
had testified as a witness.
9
apply state law unless applicable federal procedural rules are
sufficiently broad to control a particular issue before the
court. See Walker v. Armco Steel Corp., 446 U.S. 740, 749
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(1980); Hanna v. Plumer, 380 U.S. 460, 470-71 (1965). In Armco
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Steel, for example, the Supreme Court upheld the application of
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Oklahoma's tolling statute, which required actual service of
process, in lieu of Fed. R. Civ. P. 3, which provided that a
civil action could be commenced by filing a complaint with the
court. See Armco Steel, 446 U.S. at 742-44. The Court noted the
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state's policy interest in enforcing its statute of limitations
and in deferring tolling until a defendant had actual notice of a
suit. See id. at 751. On this basis, the Court reasoned that
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the Oklahoma statute was a "statement of a substantive decision
by that state," forming an "'integral' part of the several
policies served by the statute of limitations." Id. at 751-52.
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The Court concluded that "[federal] Rule 3 does not replace such
policy determinations," but, rather, exists "side by side" with
the state statute, "each controlling its own intended sphere of
coverage without conflict." Id. at 752.
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The evidentiary provisions of Maine's Health Act are
similarly bound up with the state's substantive decision making -
in this instance, the state's choice to encourage early,
inexpensive resolution of medical malpractice claims. As
observed by Maine's highest court in Sullivan, directing that
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unanimous Findings be admitted "without explanation," thereby
circumventing a replay of the screening proceeding, is a rational
10
means of ensuring that panel proceedings will not become merely a
dress rehearsal, but will serve to encourage final dispositions
without the need for jury trials. See Sullivan, 628 A.2d at 656.
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Since the federal Evidence Rules governing hearsay and
impeachment do not seek to displace the Health Act's policy of
limiting frivolous malpractice suits, the federal rules and the
state statute can peacefully coexist, each operating within its
own sphere of influence.
In short, we see no conflict. Indeed, a refusal to
give effect to the Health Act's evidentiary provisions would
disserve Erie principles by undercutting Erie's twin goals of
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discouraging forum shopping and eliminating inequitable
administration of the law as between federal and state courts.6
See Hanna, 380 U.S. at 468; see also Armco Steel, 446 U.S. at 751
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(explaining that a federal court sitting in diversity
jurisdiction ordinarily should give effect to the state's
"substantive decision[s]").
3. Form of Presentation. Appellant's last objection
3. Form of Presentation.
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to the Findings centers on the form of the proffer. She avers
that the district court committed reversible error in allowing
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6We note in passing that, Erie principles to one side,
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admitting the Findings into evidence does not seem inconsistent
with the Evidence Rules. Since, by statute, screening panels are
administered through the superior court, admitting the Findings
is analogous to allowing into evidence the report of a master,
Fed. R. Civ. P. 53, or the reports of public offices or agencies
setting forth factual findings resulting from investigations made
pursuant to law, Fed. R. Evid. 803(8)(c), or giving effect to a
presumption respecting a fact integral to a claim or defense as
to which state law supplies the rule of decision, Fed. R. Evid.
302.
11
the Findings, in written form, to be introduced as full
exhibits.7 Although appellant never articulates the theoretical
basis for the objection, her central point is apparently that
admitting the writings themselves, rather than merely eliciting
testimony recounting the Findings, violated Fed. R. Evid. 403.8
This argument is unavailing.
District courts possess wide latitude in striking a
balance under Rule 403 between the probative force and
prejudicial impact of relevant evidence. See Onujiogu v. United
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States, 817 F.2d 3, 6 (1st Cir. 1987) (collecting cases). "Only
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rarely and in extraordinarily compelling circumstances will
we, from the vista of a cold appellate record, reverse a district
court's on-the-spot judgment concerning the relative weighing of
probative value and unfair effect." Freeman v. Package Mach.
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Co., 865 F.2d 1331, 1340 (1st Cir. 1988). The test is abuse of
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discretion, see, e.g., Doty v. Sewall, 908 F.2d 1053, 1058 (1st
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Cir. 1990), and we find no hint of abuse in this situation.
Given the issues in the case, the Findings were highly
relevant. The district court, recognizing the evidence's
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7The panel made separate written Findings as to MMC, Dr.
Taylor, and Dr. Bryce. MMC proffered all three documents.
8Fed. R. Evid. 403 provides in pertinent part:
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
12
capacity for prejudice, handled it gingerly, redacting the
proffered exhibits by removing the official seal of the state
superior court and the court caption. Moreover, the court gave
an appropriate cautionary instruction to the jury an
instruction to which appellant did not contemporaneously object
and to which she does not now assign error. And, because a
screening panel's findings do not have independent legal effect
outside the paper on which they are recorded, admitting a duly
authenticated writing pays appropriate tribute to the best
evidence rule. See Fed. R. Evid. 1002; see also R & R Assocs.,
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Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984).
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On a related topic, appellant also protests that the
court transgressed Rule 403 when it allowed MMC to introduce into
evidence the Findings that concerned Dr. Bryce and Dr. Taylor
(neither of whom was a defendant in the federal suit). We do not
think that this ruling constituted an abuse of the court's
discretion. Inasmuch as appellant's case against MMC included
theories of vicarious liability, the acts and omissions of the
two physicians MMC's agents were called into direct question,
making the disputed evidence squarely relevant to the federal
proceedings.
We will not paint the lily. All evidence is meant to
be prejudicial; elsewise, the proponent would be unlikely to
offer it. It is a necessary corollary of this conventional
wisdom that evidence cannot be kept from the jury merely because
it hurts a party's chances. See Freeman, 865 F.2d at 1339;
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13
Onujiogu, 817 F.2d at 6. The element that triggers a need to
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exclude evidence under Rule 403 is not prejudice, but unfair
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prejudice. See United States v. Rodriguez-Estrada, 877 F.2d 153,
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156 (1st Cir. 1989). No such unfairness lurks in this record.
C.
C.
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The Deposition
The Deposition
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Appellant's final foray is a two-pronged assault
directed against the district court's ruling permitting Dr.
Bryce's deposition testimony to be placed before the jury.
First, appellant argues that MMC failed to establish the doctor's
unavailability. Second, she maintains that the testimony should
have been excluded because the deposition was incomplete. These
incursions lack force.
1. Unavailability. The Civil Rules provide in
1. Unavailability.
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relevant part that "[t]he deposition of a witness . . . may be
used by any party for any purpose if the court finds . . . the
witness is at a greater distance than one hundred miles from the
place of trial or hearing." Fed. R. Civ. P. 32(a)(3)(B). In
general, the district court has discretion in matters of case
management, see, e.g., Thibeault v. Square D Corp., 960 F.2d 239,
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242 (1st Cir. 1992); In re San Juan Dupont Plaza Hotel Fire
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Litig., 859 F.2d 1007, 1019 (1st Cir. 1988), and we think the
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same deference attaches to the court's rulings under Rule 32.
See Oostendorp v. Khanna, 937 F.2d 1177, 1179 (7th Cir. 1991)
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14
(holding that "the decision to admit deposition testimony is
within the sound discretion of the district court"), cert.
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denied, 112 S. Ct. 951 (1992); Reeg v. Shaughnessy, 570 F.2d 309,
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317 (10th Cir. 1978) (similar). Hence, we will not disturb the
district court's finding that a witness is more than one hundred
miles away, or otherwise unavailable for trial, absent a clear
showing of discretion misused.
Appellant has not made such a showing. Before
authorizing resort to the deposition, the district court
considered Dr. Bryce's statement, made during his deposition,
that he was soon to move to Wisconsin. The court also considered
a letter sent by the doctor to his attorney shortly before trial
in which he indicated he would be unable to leave Wisconsin in
order to testify. Appellant did not then, nor does she now,
dispute that Dr. Bryce had relocated, and she concedes that
Wisconsin is more than one hundred miles from the New Hampshire
border. This one-sided record is ample to sustain the district
court's finding that Rule 32(a)(3)(B) had been satisfied.
Appellant's rejoinder is twofold. Initially, she
suggests that Rule 32(a)(3)(B) requires an evidentiary showing of
unavailability. But the rule itself imposes no such condition
and we see no reason to read such a condition into it. Under
ordinary circumstances, a district court possesses the power to
accept, and act upon, a reliable explanation of a deponent's
15
whereabouts without convening an evidentiary hearing.9 See
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Hartman v. United States, 538 F.2d 1336, 1345-46 (8th Cir. 1976)
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(upholding district court's admission of deposition solely upon
deponent's uncontradicted statement, seven months before trial,
that he lived more than one hundred miles form the courthouse;
noting, inter alia, that deponent had no apparent reason to
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return for trial).
Next, appellant intimates that a witness, though at the
stated distance from the place of trial, is not unavailable if,
with reasonable efforts, he might be persuaded to attend. But
the language of the rule does not permit a court to read this
sort of qualification into it. Distance is the decisive
criterion: so long as a witness is shown to be more than one
hundred miles from the place of trial, the admissibility of
deposition testimony under the aegis of Rule 32(a)(3)(B) is not
contingent upon a showing that the witness is otherwise
unavailable.10 See Carey v. Bahama Cruise Lines, Inc., 864
___ _____ ___________________________
F.2d 201, 204 n.2 (1st Cir. 1988).
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9Appellant relies heavily on Moore v. Mississippi Valley
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State Univ., 871 F.2d 545 (5th Cir. 1989), a case in which the
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Fifth Circuit upheld a district court's exclusion of deposition
testimony under Rule 32(a)(3) because the proffering party
"offered nothing except the plain assertion that [the deponent]
was unavailable." Id. at 552. As recounted above, however, the
___
facts in the case at hand are crucially different. Whereas the
attorney in Moore "made no effort to explain the unavailability
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or offer some explanation to the trial court," id., MMC offered
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an uncontroverted, entirely plausible explanation.
10There is, of course, an exception for cases in which "it
appears that the absence of the witness was procured by the party
offering the deposition." Fed. R. Civ. P. 32(a)(3)(B). This
case falls outside the boundaries of that exception.
16
2. Completeness. Appellant's last line of fire is
2. Completeness.
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trained on the putative incompleteness of Dr. Bryce's deposition.
Before advancing to the merits of this assertion, we note that
the broad discretionary powers to manage cases, which are
necessarily enjoyed by district courts, apply to the regulation
of discovery disputes. See Thibeault, 960 F.2d at 242; San Juan
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Dupont Plaza, 859 F.2d at 1019. We believe that this discretion
____________
extends to determining whether a deposition is reasonably
complete. Moreover, even if it is determined that a deposition
is not complete, a court has the power to allow all or part of
the testimony into evidence if customary standards of
admissibility have been met and if no unfairness inheres. See
___
Lentomyynti Oy v. Medivac, Inc., 997 F.2d 364, 371 (7th Cir.
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1993); see also Fed. R. Evid. 611 (recognizing the district
___ ____
court's control over "the manner in which deposition testimony is
presented"); Fed. R. Civ. P. 32(a) (providing for use of "any
part or all of a deposition, so far as admissible under the rules
of evidence" and directing the district court to consider
"fairness" if less than all of the deposition testimony is to be
admitted).
In the instant case, the court made an implicit finding
that the deposition had been completed. We think such a finding
is supportable. Dr. Bryce was examined on November 29, 1989.
The examination was suspended after a dispute arose anent access
to two memoranda. Appellant thereafter filed a motion to compel
production of the memoranda, which the court granted on July 26,
17
1990. MMC promptly complied with the turnover order. A fair
reading of the memoranda in light of appellant's line of inquiry
at the deposition suggests that her attorneys declined to resume
the deposition because they did not perceive that fruitful
queries remained to be posed.
Even if the deposition properly could be classified as
unfinished business, we would reject the assignment of error. In
the first place, the district court carefully redacted the
deposition to prevent any cognizable unfairness. In the second
place, if appellant, after receiving the memoranda, thought that
they bore on Dr. Bryce's testimony, it was incumbent upon her to
renotice and resume the deposition at some point during the
nearly three years that intervened between production of the
memoranda and the start of trial. We have held in various
contexts that a party who does not actively pursue perceptible
rights in the district court is at grave risk of waiver, and may
well be barred from asserting those rights on appeal. See, e.g.,
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Dow v. United Bhd. of Carpenters & Joiners, 1 F.3d 56, 61 (1st
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Cir. 1993) (holding that plaintiffs waived any right to complain
of refused discovery because, after district court declined their
initial discovery request with leave to renew, plaintiffs failed
to make a second request); Reilly v. United States, 863 F.2d 149,
______ _____________
168 (1st Cir. 1988) (finding waiver of right to challenge judge's
appointment of technical advisor). We see no reason to deviate
here from our usual practice of denying relief to parties who
18
have slept too long upon their rights.11
Affirmed. Costs to appellee.
Affirmed. Costs to appellee.
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11This practice seems fully compatible with Civil Rule 32.
The rule's "general principle is to require defects in the taking
of depositions to be pointed out promptly on pain of waiver" so
as to "give the erring party an opportunity to correct the
mistake, and to prevent waste of time and money by a subsequent
claim that a deposition must be suppressed because of some
technical error long ago." 8 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure 2153, at 475 (1970); cf.
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Fed. R. Civ. P. 32(d)(3) (ordaining that "errors of any kind
which might be obviated, removed, or cured if promptly presented,
are waived unless seasonable objection thereto is made at the
taking of the deposition").
19
