Nichols v. Retreat

Burgess, J.,

¶ 15. dissenting. The trial court did err in failing to find Dr. Rabinowitz unavailable for trial, and thus the introduction of his deposition into evidence failed to satisfy part of the procedural rule governing admission of prior testimony. See V.R.E. 804(b)(1) (allowing admission of a deposition “if the declarant is unavailable as a witness” provided that the adverse party had an opportunity and motive to develop that testimony by cross-examination). I disagree, however, with the majority’s reasoning that this amounted to more than harmless error. In practical terms, the error…