discussing Carter-Wallace and stating that by selecting an expert from out of state, a party "'procured' the absence of his expert from the Commonwealth in the sense that he voluntarily created a situation in which his expert would be out of the Commonwealth unless he should make arrangements for the expert's appearance at trial"
How later courts described this case
- discussing Carter-Wallace and stating that by selecting an expert from out of state, a party "'procured' the absence of his expert from the Commonwealth in the sense that he voluntarily created a situation in which his expert would be out of the Commonwealth unless he should make arrangements for the expert's appearance at trial"
- in crashworthiness case, plaintiff must establish that “because of the [allegedly defective] design he was injured more seriously than he would have been had the car been reasonably designed”
- noting the federal courts’ interpretations of analogous federal rules
- under Mass.R.Civ.P. 32 [a][3][B], as amended, 392 Mass. 1105 [1984], deposition testimony may be used when witness is outside Commonwealth and cannot be secured for trial
Written by the judges who cited it.
The opinion
*755 Brown, J.
(concurring). I fully concur in the careful analysis and sound reasoning set forth in the court’s comprehensive treatment of the issues raised in this case. I write separately only to suggest that the judge could and should, have pulled the plug on this case before it came to trial and to make a few observations regarding the discovery process.
Manifestly, the trial judge did not err in directing verdicts for the defendants. No rational trier of fact could have found that the duty to design a passenger automobile for ordinary use encompasses a duty to protect from injury an intoxicated operator who drives the vehicle off the road at a speed of fifty miles per hour and travels another 175 feet, rolling over and striking several objects before coming to rest against a tree. This conclusion should have been apparent before trial.
As the majority points out in footnote 5, supra, “[t]he requests for admissions in this case were facially excessive, burdensome, and oppressive.” This is discovery run amok. In his recent book, The Betrayed Profession (1994), Sol Linowitz (at 178) makes special reference to this precise abuse and the resultant greatly increased expense to the parties and society if it is left unchecked:
“If a judge thinks it highly unlikely that a plaintiff can prevail, he has an obligation to the defendants, to the schedule of his court, and to other applicants for justice — and, indeed, to the plaintiff — not to permit the waste of their time and money. A courtroom should not be a casino where lawyers throw the dice in hopes that a jury will read them wrong.”
At the end of these comments, Mr. Linowitz remarks, quite appropriately, that “[as] always, there must be worries about what happens when judges are given discretion.” One of the functions of an appellate court, of course, is to correct abuses of judicial discretion.
In today’s litigation arena, depositions and other forms of discovery have become the main sources of abuse by advocates. I agree with the remarks of former Chief Justice Warren Burger, who observes that discovery “has become trial by *756 annihilation before the litigants ever reach the courthouse.” The Betrayed Profession, supra at 169, quoting from W. Burger, Delivery of Justice 143 (1990).
This case is a shining example of wasting considerable amounts of energy and money on a factually frivolous lawsuit. It is no wonder that the public’s chief perceptions of the legal profession are ones of distrust and cynicism, frustration and even anger.
This may be anathema to those who love litigation, whether it be complex or routine, and the attendant billable hours, but it must be said: Discovery needs an overhaul. However, when deliverance comes, and it surely must, the utmost care must be taken not to achieve gridlock in its stead. That will be a challenge, but we must undertake it. Responsibility for curtailing this abuse falls upon the bench as well as the bar.
I close with this prophecy: If we fail to put our collective judicial fingers in the dike immediately, we shall need to summon Noah because we shall certainly need his ark.