After a public Damage Assessment expert witness analyzing damagesbid process, a Contractor and the City entered into an agreement for a road improvement project. The City was to have the right of way cleared and started securing the removal or relocation of utility lines that might interfere with the project. The lines were to be removed or relocated prior to the start of the work by Contractor.

Soon after Contractor started work on the project, it encountered utility lines that remained in the right of way. Although the parties agreed that the removal or relocation of the utilities caused delays in the construction, the date and duration of those delays were the primary points of contention in this litigation. The project was finally completed two years later. The City paid the Contractor the principal contract price but refused its request for reimbursement of equipment “idle time” for the days when equipment for the project could not be used because of the delays from the utilities. A trial court awarded the Contractor about $950,000 in damages—$889,000 in idle equipment costs and $62,000 in overhead.

The City appealed the judgment and asserted that the trial court erred in denying its motion to continue the trial and by sustaining Contractor’s objection to the use of a deposition at trial.

After two prior continuances at the joint request of the parties and a third continuance at the request of Contractor, the claims were scheduled for trial. One week before trial, the City filed a motion to continue asserting that its expert on the calculation of damages was unavailable due to health reasons and that it needed more time to hire another expert. The trial court denied the motion.

At trial, the City renewed its motion to continue, stating that the damages expert told the City’s counsel three weeks before trial that he was no longer testifying or handling any litigation on the advice of his cardiologist. The City did not have any documentation from the physician confirming this information, and the trial court again denied the motion. The judge found that there was no reason to grant a continuance based on the damages expert’s word that his cardiologist suggested that he should not be in this line of work.

The City argued that the trial court was obligated to grant a continuance. Judge William J. Crain wrote in his opinion for the Louisiana Court of Appeals that in order to be entitled to a continuance, the moving party has the burden of showing that he met the requirements of Article 1602. The party must establish either that: (1) he exercised due diligence but was unsuccessful in obtaining material evidence; or (2) a material witness absented himself contrary to the arrangement made by the party for the witness to appear. Although entitled to a reasonable delay and opportunity to procure his witnesses, the party applying for a continuance is required to show due diligence.

When the conditions of Article 1602 are met, the granting of a continuance is mandatory, the judge wrote. However, he said that the record reflected that the City’s damages expert told counsel three weeks before trial that he was not going to appear as a witness on advice of his physician. The City did not request a subpoena at any point and presented no medical documentation or other evidence substantiating the claim that the expert was physically unable to attend trial. Based on this, the trial judge held that the City’s failure to take reasonable measures to compel—or at least attempt to compel—the expert’s appearance at the trial, in addition to its failure to present any proof that his health issues rendered any such measures futile or unnecessary. As a a result, this did not demonstrate sufficient due diligence to invoke the provisions of Article 1602.

The City also asserted that the trial court erred in refusing to permit the introduction of its damages expert’s discovery deposition, offered during its case-in-chief, because the expert was unavailable due to his health. The City produced an email exchange showing an attempt by its counsel to get an affidavit from the expert confirming his health condition. The expert said that he was out of state and would not be back until after the trial. When questioned by the trial court, counsel did not know why the expert was out of state and “didn’t ask.” Contractor’s counsel objected to the introduction of the deposition, citing a lack of proof of the City’s damages expert’s unavailability, the City’s failure to subpoena City’s damages expert, and the fact that the deposition was taken for discovery purposes. The trial court sustained the objection.

On appeal the City argued that City’s damages expert’s health condition rendered him unavailable for the trial or, in the alternative, that exceptional circumstances warranted the admission of the deposition. Louisiana Code of Civil Procedure article 1450 provides that the deposition of a witness may be used by any party for any purpose if the court finds that “the witness is unavailable … or [u]pon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” However, the trial court has “much discretion,” Crain wrote, under Article 1450 in determining whether to allow the use of deposition testimony at trial.

Although Article 1450 does not specify when a witness is “unavailable,” Evidence Article 804 provides that a declarant is “unavailable as a witness” when he “cannot or will not appear in court and testify,” including when he’s “unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause.” The party asserting the admissibility of a deposition under Article 1450 A(3)(a) must show that the witness is unavailable for trial.

Judge Crain wrote that the determination of whether a witness is unavailable is a preliminary question for the trial court, which may consider otherwise inadmissible evidence in making that determination. Review is for manifest error and will not be overturned absent an abuse of the trial court’s discretion.

The City’s assertion that its damages expert was unavailable for trial rested entirely on the expert’s statement in an email that he was no longer “available for trial testimony on the advice of [his] cardiologist.” Without more—even though an attorney’s representations of his efforts to locate a witness have been held sufficient to establish a witness’s unavailability—here counsel’s representations conveyed only the witness’s claim that his physician advised him not to attend the trial. Judge Crain explained that great weight is attached to the exercise of a trial court’s discretion. Based upon the showing made by the City, the trial court was not sufficiently persuaded that the expert was unavailable for trial. As a result, the Court of Appeals found no manifest error or abuse of discretion in that determination.

Judge Crain noted that there was not any suggestion that the Contractor’s counsel thought the discovery deposition of the expert witness was a perpetuation deposition for use at trial. No precedent supported the City’s contention that the parties stipulated to the use of City’s damages expert’s deposition at trial in lieu of his live testimony.

The Court of Appeals amended and affirmed the decision.