No More Disconnect

October 27, 2015 § Leave a comment

You’ve read here in the past about the disconnect between MRCP 32 and MRE 802.

MRCP 32 (a)(3)(B) says that the deposition of a physician may be taken and introduced into evidence, presumably to avoid the necessity of dragging him or her away from patients to testify in court.

A deposition standing alone, however, is hearsay, so we need to look to the MRE to see how we can qualify it as an exception, if we can.

Among the exceptions enumerated in MRE 802 for unavailable witnesses, there is none for physicians.

Since there is a conflict — or disconnect — between the MRCP and the MRE, the MRE prevails, because MRE 1103 provides: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the [MRE] are hereby repealed.”

Last Thursday the MSSC announced that it adopted the Rules Advisory Committee’s recommendation to cure the problem. You can read the rule and comment changes at this link. As I’ve said before, this discrepancy between the new rules has tripped up lawyers in litigation, and could trip you up, too, if you weren’t aware. This fix should eliminate this pitfall.


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