BY JOSH SILK“This will be the deposition of Dr. Doe, taken pursuant to notice and agreement of counsel, for all permissible uses under the Georgia Civil Practice Act, and all objections will be reserved except to the form of the question and responsiveness of the answer.” How often have we heard, or said ourselves, a version of this stipulation to start a deposition? Such stipulations are binding, and what can be waived if there are merely the “usual stipulations,” or “objections pursuant to the Georgia Civil Practice Act” may surprise you.1
Of course, objections to the form of the question, such as “asked and answered” or “leading,” are waived if not made during the deposition.2 But a lesser known rule provides that objections to an expert’s qualifications or the foundation for their testimony may also be waived if not raised during the deposition. Under Georgia law, O.C.G.A. § 9-11-32(d)(3)(A):
Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.3
Georgia courts have consistently held that objections to the competency of an expert witness are waived if not made during a deposition.4 The Georgia Supreme Court noted in Andean Motor Co. v. Mulkey,5 that an attorney’s pre-deposition stipulation that “the necessity for objections shall be governed by the rules,” referred to O.C.G.A. § 9-11-32(d)(3)(A). Considering that statute, the Court held:
“Extended discussion or citation of authorities is not required to demonstrate that if Mulkey had objected during the deposition to the absence of proof of the witness’ competence to testify as an expert, defense counsel might have been able to cure this ground of objection by proof of the witness’ qualifications. Mulkey thus waived his right to raise this objection.”6
This rule was illustrated in Jones v. Scarborough7, where the trial court allowed into evidence the deposition testimony of an expert who opined that the plaintiff’s injuries might have been mitigated if she had worn a seatbelt. No foundation was laid at the deposition as to the witness’ expertise, and no objection was made at the deposition as to the expert’s qualifications. At trial, the plaintiff raised both foundation and qualification objections. The trial court overruled the objections, allowing the deposition testimony into evidence. The Court of Appeals of Georgia, quoting Mulkey, affirmed, holding that the objections had been waived, and the deposition was properly admitted.
Whether these were so-called “evidentiary” or “discovery” depositions, and which party was asking the questions is not made clear in the cases. The most likely scenario for this issue to arise is in the context of a party deposing its own expert in an evidentiary deposition for trial. In that scenario, the opposing party must raise objections to the expert’s qualifications. This is not made clear in the statute, however. The exception to this rule is Daubert motions made pursuant to O.C.G.A. § 24-7-702(d), which can be raised by motion prior to the final pretrial conference.
Even if the qualification objection is waived, a trial court still has authority to sua sponte exclude an expert’s testimony on foundation or competency grounds. In Fairburn v. Cook,8 the trial court refused to admit the deposition testimony of the plaintiff’s treating physician, also regarding whether a plaintiff could have mitigated her injury by wearing a seatbelt. The plaintiff did not object to the expert’s qualifications during the deposition, but nevertheless, the trial court excluded the testimony. The defendant argued that it could have cured the ground for the objection if it had been raised during the deposition. The Court of Appeals rejected this argument because the witness’ credentials had been explored in detail in the deposition, and there was no indication that the witness had any relevant expertise. As such, the Court held that because the deposition testimony made clear that the expert was not qualified, the case was distinguishable from Mulkey and Jones, where the experts’ qualifications had not been explored in detail.
This rule is not limited to expert qualification objections. Then-Circuit Judge Scalia described the analogous federal rule, stating “what the exception obviously envisions is a situation in which a timely objection (e.g., on the ground of failure to lay an adequate foundation) could have enabled the problem to be remedied so that the same testimony could be received in accordance with law.”9 The Seventh Circuit has similarly explained: “[T]he rule makes sense—if a party could strategically withhold an objection during a deposition and later exclude testimony that could have been elicited if the objection were raised promptly, depositions as trial evidence would quickly lose their value.”10 Indeed, numerous foundational objections could be cured if raised during a deposition, all of which would likely be considered waived if not raised during the deposition.
The simple solution, of course, is to raise all qualification and foundation objections when defending your client’s expert depo-sitions. Consider agreeing only that objections must comply with the Georgia Civil Practice Act when your witness is being de-posed, so that if an objection is not raised by opposing counsel, it will be waived. Also, make sure to conduct a thorough examination of the opposing party’s expert’s credentials during the deposition so that a trial court, if so inclined, could exclude the expert’s testimony sua sponte or find that the ground for the objection could not have been cured. Finally, if opposing counsel agrees that “all objections except to the form of the question” will be reserved, then you may not have to object, so consider up-dating those “usual stipulations” before your next deposition. ●
Josh Silk is an Associate at Shamp Jordan Woodward in Atlanta. His practice focuses on medical negligence and catastrophic personal injury. Josh currently serves on the Verdict Editorial Board and can be reached at firstname.lastname@example.org.
1 See Rigby v. Powell, 236 Ga. 687, 688 (1976).
2 See, e.g., Hamilton v. Pulaski Cnty., 86 Ga. App. 705 (1952) (objections to leading questions waived if not raised in deposition), see also State Farm Mut. Auto. Ins. Co. v. Dowdy, 445 F. Supp. 2d 1289, 1293 (N.D. Ok. 2006) (listing typical objections to the form of a question).
3 O.C.G.A. § 9-11-32(d)(3)(A) (emphasis added).
4 See, e.g., Andean Motor Co. v. Mulkey, 251 Ga. 32 (1983); Jones v. Scarborough, 194 Ga. App. 468 (1990); Stinson v. Pratt, 182 Ga. App. 552, 553 (1987); Atlanta Car for Hire Assoc. v. Whited, 179 Ga. App. 893, 896 (1986).
5 251 Ga. 32 (1983).
6 Id. at 32.
7 194 Ga. App. 468 (1990).
8 188 Ga. App. 58, 68 (1988).
9 Jordan v. Medley, 711 F.2d 211, 218 (D.C. Cir. 1983) (internal citations omitted).
10 Roy v. Austin Co., 194 F.3d 840, 844 (7th Cir. 1999) (discussing the analogous Fed. R. Civ. P. 32(d)(3)(A)).
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