## Facts

- Plaintiffs suffered serious injuries in a head-on collision after Joseph F. Welch’s car crossed the center line and struck their vehicle.
- Welch denied negligence, claiming a sudden, unexpected, and unforeseeable blackout caused him to lose control.
- Welch supported the blackout defense with medical testimony: one physician testified live at trial, and two other physicians’ testimony was presented by deposition (including a videotaped deposition).
- Over plaintiffs’ timely objection, the district court admitted the two physicians’ depositions as substantive evidence without a developed showing that any condition for deposition use at trial was satisfied.
- The jury returned a verdict for Welch.

## Issues

1. Whether the district court erred under Fed. R. Civ. P. 32(a) by admitting two physicians’ depositions as trial evidence without establishing a Rule 32(a)(3) predicate.
2. Whether state deposition practice could govern deposition use in a federal diversity trial instead of Rule 32(a).
3. Whether any Rule 32(a) error required reversal or was harmless.

## Decision

- The First Circuit held the district court erred by admitting the two depositions without compliance with Fed. R. Civ. P. 32(a)(3).
- The court rejected the argument that state deposition practice controlled in federal court when an applicable Federal Rule addressed the subject.
- The court affirmed the judgment for Welch because the error did not affect substantial rights and was harmless in light of the trial record.

## Legal Principles

- In federal court, including diversity cases, an on-point Federal Rule of Civil Procedure governs when valid, even if state practice differs.
- Under Fed. R. Civ. P. 32(a)(3), a deposition may be used at trial for substantive purposes only if the offering party establishes a listed condition such as death, distance, inability to attend due to illness or infirmity, inability to procure attendance by subpoena, or comparable exceptional circumstances.
- Admission of evidence in violation of Rule 32(a) does not require reversal if the appellate court concludes the error was harmless and did not affect substantial rights, including where the deposition testimony is largely cumulative of properly admitted live testimony.

## Conclusion

The First Circuit ruled that Rule 32(a), not state deposition practice, controlled deposition use at a federal diversity trial and that admitting depositions without satisfying Rule 32(a)(3) was error; however, because the depositions were largely cumulative of live medical testimony supporting the blackout defense, the error was harmless and the defense verdict was affirmed.


Frechette v. Welch, 621 F.2d 11 (1st Cir. 1980)