Duto v. Mitchell

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 91-366

                              MARCH TERM, 1992


 Hannelore Duto and Heidi Duto,    }          APPEALED FROM:
 By Her Next Friend, Hannelore     }
 Duto                              }
                                   }
      v.                           }          Windsor Superior Court
                                   }
                                   }
 Wallace R. Mitchell and           }
 Central Vermont Railway, Inc.     }          DOCKET NO. S411-88WrC


              In the above entitled cause the Clerk will enter:

      Plaintiffs sued Central Vermont Railway, Inc. (CVR) for personal
 injuries arising from a car-train collision, and CVR appeals from a Windsor
 Superior Court judgment in plaintiffs' favor after a jury trial.  We affirm
 in part and reverse in part.

      Plaintiffs were passengers in a car that collided with the train, which
 was backing across a grade crossing in White River Junction in November,
 1986.  Plaintiffs alleged soft tissue injury and mental suffering.  In
 September 1988, Heidi Duto consulted with Dr. Rocco Addante at the
 Dartmouth-Hitchcock Medical Center concerning what was then called her
 temporomandibular joint (TMJ) disfunction.  Plaintiff Hannelore Duto
 testified about the medical and mental effects of the accident on her, but
 presented no expert medical testimony.  The jury awarded Hannelore Duto
 $13,500 and Heidi $5,000.  The present appeal followed.

      The trial court should have excluded the deposition of Dr. Addante.
 V.R.C.P. 32(a)(3) describes five circumstances under which a deposition may
 be used by a party for any purpose.  The only relevant provision, and the
 one relied on by plaintiffs, is Rule 32(a)(3)(E), which states in relevant
 part:

           (3) The deposition of a witness, whether or not a party,
           may be used by any party for any purpose if the court
           finds that the witness . . . (E) is absent from the
           hearing and the proponent of the deposition has been
           unable to procure the witness' attendance by process or
           other reasonable means. . . .

 See Cameron v. Burke, 153 Vt. 565, 574-75, 572 A.2d 1361, ____ (1990),
 citing King v. Int'l Harvester Co., 212 Va. 78, 85, 181 S.E.2d 656, 661
 (1971) (construes voluntary and unexplained absence as "procured" absence).
 To the same effect, see V.R.E. 804(a)(5); State v. Lynds, 2 Vt. L.W. 433
 (1991) (letter and phone calls to witness that failed to secure attendance
 at trial insufficient to establish unavailability).  In the present case
 there was no evidence before the court that Dr. Addante was unavailable.

      Plaintiffs argue that defendant orally agreed to introduction of the
 deposition by the silence ÄÄ and hence acquiescence ÄÄ of its counsel,
 after being advised by plaintiffs' counsel in a telephone conversation
 shortly before trial of their intention to introduce the deposition.  It was
 plaintiffs alone who were in the best position to prevent a debate at trial
 over oral waiver and the integrity of counsel by obtaining written agreement
 of defendant to admission of the deposition.  Their assertion of "negative
 deceit," i.e., silent acquiescence, on the part of defendant's counsel is
 little more than a concession that defendant never agreed affirmatively to
 waive its right to require the in-court appearance of Dr. Addante.  As the
 deposition contained evidence that was integral to Heidi Duto's claim, the
 judgment in her favor must be vacated and the matter remanded for a new
 trial or damages.

      However, there was no error as to the judgment in favor of Hannelore
 Duto.  Defendant concedes that her testimony sufficed as to "the immediate
 onset of headache, backache and general pain and suffering . . . ", but
 argues that the court should not have refused to limit damages to the time
 period directly after the accident.  This argument boils down to a
 contention that the court allowed the jury to give excessive weight to this
 plaintiff's testimony about the effects of the accident.  The court properly
 allowed the jury to determine the weight to be assigned to plaintiff's
 version of the facts.  Jewel v. Dyer, 154 Vt. 486, 489, 578 A.2d 125, ___
 (1990).

      The judgment as to Heidi Duto is reversed and the matter remanded for a
 new trial as to damages.  The judgment in favor of Hannelore Duto is
 affirmed.





                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice


                                    _______________________________________
                                    John A. Dooley, Associate Justice

 [ ] Publish
                                    _______________________________________
 [ ] Do Not Publish                 Denise R. Johnson, Associate Justice