By: David M.Garten, Esq.
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
(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
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
grantor-father.
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.
No comments:
Post a Comment