United States District Court, M.D. Tennessee, Nashville Division
ORDER AND MEMORANDUM
A. TRAUGER UNITED STATES DISTRICT JUDGE
before the court, among other things, is Plaintiff's
Motion to Allow Use of Deposition Taken in Another Proceeding
(Docket No. 62). For the reasons stated herein,
Plaintiff's Motion is DENIED.
purported class action alleges that Community Health Systems,
Inc. (“CHS”) breaches its provider contracts with
health insurers, causing monetary damages to third-party
beneficiaries of those contracts, including Plaintiff and
others similarly situated.
asserts that he received emergency medical care at South
Baldwin Regional Medical Center (“South
Baldwin”), an Alabama hospital allegedly owned and
operated by CHS, after a motor vehicle accident in May of
2015. Plaintiff contends that his health insurer, Blue Cross
Blue Shield of Alabama (“BCBS”), paid the
hospital for services rendered to him, at the discounted rate
mandated by the provider contract between CHS and Blue Cross
Blue Shield. He avers that, upon realizing that
Plaintiff's injuries were the result of a motor vehicle
accident, the hospital (per CHS's policy) refunded the
insurer's discounted payment and billed Plaintiff for the
full, undiscounted amount.
claims that Plaintiff has sued the wrong Defendant. CHS
asserts that the provider contract at issue is between BCBS
and Foley Hospital Corporation d/b/a South Baldwin Regional
Medical Center. Plaintiff did not file a copy of the subject
contract with his Complaint. (Docket No. 1.) CHS has filed a
copy of a contract that it contends is the contract at issue
in this case, and that contract is in fact between BCBS and
South Baldwin Hospital. (Docket No. 24-1.)
has filed a Motion to Dismiss, for Summary Judgment or to
Compel Arbitration (Docket No. 23), and Plaintiff now seeks
to use a deposition taken in another proceeding in opposition
to Defendant's motion.
burden of proving that deposition testimony is admissible
falls on the proponent of the testimony - here, Plaintiff.
Hughes v. City of Chicago, 673 F.Supp.2d 641, 652
(N.D. Ill. 2009). The deposition that Plaintiff seeks to use
was taken in a state court action in Alabama involving a
different plaintiff and a different defendant. The defendant
in the state court action is Foley Hospital Corporation d/b/a
South Baldwin Regional Medical Center, and the plaintiff is
Samantha Elliott. CHS is not a party to the state court
lawsuit and was given no notice of the deposition. The
deposition Plaintiff seeks to use is that of Brad Hardcastle,
the Chief Financial Officer of South Baldwin,  taken by
Plaintiff's Alabama counsel for use in the state court
argues that the deposition was taken in a completely separate
lawsuit, with different parties and no representative of CHS
present to cross-examine or participate in any way. The
witness at the state court deposition was a party adverse to
Plaintiff, and the questions were for use in a case against
South Baldwin, not against CHS. Plaintiff contends that use
of Mr. Hardcastle's testimony is no different from an
affidavit or declaration used in opposition to summary
judgment under Federal Rule of Civil Procedure 56.
Federal Rules of Civil Procedure provide that, generally, a
deposition may be used against a party at trial if the party
was present or represented at the taking of the deposition or
had reasonable notice of it. Fed.R.Civ.P. 32(a)(1)(A). A
deposition taken in an earlier action may be used in a later
action involving the same subject matter between the same
parties, to the same extent as if taken in the later action.
Fed.R.Civ.P. 32(a)(8). The decision whether to admit a
deposition from a prior lawsuit is vested in the district
court's sound discretion. Oracle America, Inc. v.
Hewlett Packard Enterprise Co., 2017 WL 1436080 at * 1
(N.D. Cal. Apr. 24, 2017).
a deposition from an earlier action is not admissible in a
later action if one of the parties was not represented at the
time of the deposition; but the presence of an adversary with
the same motive to cross-examine the deponent is a
well-recognized exception to the rule. Id. (citing
Ikerd v. Lapworth, 435 F.3d 197, 205 (7th
Cir. 1970)); see also Northern States Power Co. v. City
of Ashland, Wis., 93 F.Supp.2d 958, 976 (W.D. Wis.
2015). The inquiry focuses on whether the prior
cross-examination would satisfy a reasonable party who
opposes admission in the present lawsuit. Fed. Housing
Fin. Agency v. Merrill Lynch & Co., Inc., 2014 WL
798385 at * 1 (S.D. N.Y. Feb. 28, 2014). In this case,
neither CHS nor its counsel was present at the prior
deposition, so CHS had no opportunity to object to questions,
to ask for clarification from the witness, or to develop the
witness' testimony through cross-examination.
has not shown that counsel who were present at the Hardcastle
deposition had the same motive to cross-examine the witness
as counsel for CHS would have had. Although the witness was
not an employee of CHS, he was an employee of the hospital
where Plaintiff received his treatment in this case and the
hospital that committed the actions complained of herein, so
his testimony is likely to be relevant to this case, and CHS
was not allowed to participate in the taking of that
deposition previously taken may also be used as allowed by
the Federal Rules of Evidence. Arrowood Indemnity Co. v.
Hartford Fire Ins. Co., 774 F.Supp.2d 636, 645 (D. Del.
2011). The Federal Rules of Evidence provide that prior
deposition testimony of a witness is not hearsay if the
declarant is unavailable and if the party against whom the
testimony is now offered had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect
examination. Fed.R.Evid. 804(b)(1). Here, as in
Arrowood, Plaintiff has made no showing that Mr.
Hardcastle is unavailable to give a ...