Friday, January 20, 2012

ARTICLE: Deposing An Incapacitated Person

As a prerequisite to deposing an incapacitated person (or an alleged incapacitated
person), it may be necessary to: (a) have a hearing to determine whether the witness is
disqualified from testifying, and/or (b) submit written deposition questions to the witness.

A witness is presumed competent to testify until the contrary is established. See §90.601,
Fla. Stat. (every person is competent to be a witness, except as otherwise provided by
statute);Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Hawk v. State, 718 So. 2d 159
(Fla. 1998).  Even a person who has been declared insane can be found competent to
testify. SeeBelcher v. Johnson, 834 So. 2d 422 (2nd DCA 2003),  citing Fla. Power &
Light Co. v.Robinson, 68 So. 2d 406 (Fla. 1953).  The witness’s unreliability goes to his

credibility, which is for the trier-of-fact to consider.  See Terry v. State, 668 So. 2d 954,
footnote 9 (Fla. 1996), citing Weygant v. Fort Meyers Lincoln Mercury, Inc., 640 So. 2d
1092 (Fla. 1994).  

A witness is incompetent to testify if the Court determines the witness is (1) unable to
communicate to the Court; (2) unable to understand the duty to tell the truth; or (3)
unable to perceive and remember the events. See Rutherford, Supra;  citing §§ 90.603,
.604, Fla. Stat. Competency to testify is established when a witness has sufficient
understanding to comprehend the obligations of the oath and is capable of giving a
correct account of the matters which the witness has seen or heard relative to the question
at issue. See Kaelin v. State, 410 So. 2d 1355 (Fla. 4th DCA 1982).

In  Belcher v. Johnson , 834 So. 2d 422 (Fla. 2nd DCA 2003), the Belchers sought to take
the deposition of Ms. Roberts, who is an elderly woman suffering from dementia. Her
guardian filed a motion for protective order seeking to prevent the deposition because
Ms. Roberts was, to some degree, legally incapacitated. The trial court granted the
protective order without an evidentiary hearing and without making a factual
determination that Ms. Roberts should be disqualified to testify as a witness under
§90.603,  F.S. Apparently, the trial court assumed that Ms. Roberts' incapacity for
purposes of a guardianship proceeding rendered her disqualified to testify as a matter of
law. The court quashed the protective order and remanded to the trial court to conduct a
hearing to determine whether Ms. Roberts should be disqualified from testifying pursuant
to section 90.603. The court reasoned that even a person who has been declared insane
can be found competent to testify.

In Urbanekv. Hopkins, 993 So. 2d 1110 (Fla. 4th DCA 2008), a beneficiary of certain
irrevocable living trusts sued the trustee for breach of fiduciary duty for failing to make
distributions. In turn, the trustee counter-sued asserting that the beneficiary had induced
the grantor to exert undue influence on the trustee to make improper distributions. The
grantor was the father of the beneficiary and was not a party to the case. No claims were
made by or against the grantor.  The trustee sought to take the grantor's oral deposition.
The grantor’s attorney objected to the deposition because the grantor was 88 years old
and suffering from Parkinson's disease. The attorney furnished the trial court with a
detailed affidavit from a physician who had specific knowledge about the grantor's
condition and filed a motion to limit the deposition to written questions.  In response, the
trial court ordered the grantor and his physician to appear in court for a hearing on the
grantor's medical condition. In spite of the affidavit establishing danger to the grantor's
health from being forced to appear for a deposition, the judge nevertheless insisted that
he come to court to testify and rejected the alternative of first permitting only a written
deposition. The grantor did not personally come to court and appeared at the hearing
through counsel. The trial judge ordered the grantor to submit to a compulsory medical
examination (CME) by a physician chosen by the trustee within the next 30 days.

The appellate court quashed the order requiring a CME.  The court found that the trustee
failed to establish good cause for a CME and that  initially, any deposition had to be
limited to written deposition questions. The court reasoned:

As to the compulsory medical examination (CME) of the grantor-father,
the trial judge overlooked the burden placed by Florida Rule of Civil
Procedure 1.360 on the proponent of a CME. Under the rule, the party
seeking a CME must show that the person to be examined is a party in the
litigation who has himself placed his physical condition at issue. The party
seeking the CME must establish good cause for such an exam. Here the
trial judge should have first required written deposition questions of the
grantor-father. Before the trustee could thereafter show good cause for a
CME, he would thereupon have to show why the results of the written
deposition failed to furnish the relevant information sought from the

In Gordon v.Davis, 267 So. 2d 874 (Fla. 3rd DCA 1972), plaintiff filed a slander action
against defendant, which alleged that defendant called plaintiff psychotic. Defendant
alleged the truth of the statement and want of malice as an affirmative defense. The trial
court entered an order that plaintiff submit to a mental examination. Plaintiff contended
entry of the order for examination was error because Fla. R. Civ. P. 1.360 was limited in
scope to negligence cases, that the mental condition of plaintiff was not a matter in
controversy in this case, and that good cause for the order was not shown. On appeal, the
court found that Fla. R. Civ. P. 1.360 was not limited to personal injury actions. Plaintiff's
mental condition was placed in controversy because the alleged slander was based on
statements regarding plaintiff's mental condition. The court reasoned in part:

Under Rule 1.360 FRCP, in an action in which the mental or physical
condition of a party is in controversy, examination of the party with
respect thereto may be ordered, when good cause is shown therefor,
without regard to the form or type of the civil action in which it is
involved.  In permitting such compulsory examination the rule does 
not affect "substantive rights" of the litigants, since it relates exclusively 
to the obtaining of evidence, and is therefore procedural.

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