ORDERS:
ORDER
This matter is before me pursuant to the motion of the Respondent, QHG of South Carolina,
("QHG") to admit into evidence the deposition testimony of Mr. Robert L. Colones, Mr. H. E.
McCutcheon, and Ms. Catherine Lee, pursuant to Rule 32(a) of the South Carolina Rules of Civil
Procedure. The Petitioner, McLeod Regional Medical Center ("McLeod"), objects to the
admission of any of these depositions, but has submitted no memorandum in opposition to the
motion. For the following reasons, I find that the deposition testimony in question should be
admitted into evidence under the guidelines set forth below.
Rule 32(a) of the South Carolina Rules of Civil Procedure is applicable in proceedings before the
ALJD. See ALJD Rule 52. SCRCP 32(a) provides, in pertinent part:
(a) Use of Depositions. At the trial . . . any part or all of a deposition, so far as admissible
under the rules of evidence applied as though the witness were then present and testifying,
may be used against any party who was present or represented at the taking of the
deposition or who had reasonable notice thereof, in accordance with any of the following
provisions:
. . . .
(2) The deposition of a party or of anyone who at the time of taking the deposition was an
officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to
testify on behalf of a public or private corporation, partnership or association or
governmental agency which is a party may be used by an adverse party for any purpose.
QHG asserts that Mr. Colones, as McLeod's Executive Vice President, and Mr. McCutcheon,
McLeod's Chief Financial Officer, are "officers" of McLeod, and that Ms. Lee, McLeod's Director
of Marketing, is a "managing agent" of McLeod, and therefore QHG is entitled to introduce their
depositions as evidence at the hearing in this matter.
In interpreting a provision of the Federal Rules of Civil Procedure which is nearly identical to
SCRCP 32(a), courts and commentators have noted that a "managing agent" of a corporation is
one who is invested by the corporation with general powers to exercise judgment and discretion in
dealing with corporate matters; who can be depended upon to carry out the employer's direction
to give testimony at the demand of a party engaged in litigation with the employer; and who can
be expected to identify with the interests of the corporation rather than with those of the other
parties. See Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d §2145 (1994);
35A C.J.S. Federal Civil Procedure §562 (1960); Kolb v. A.H. Bull Steamship Co., 31 F.R.D.
252 (E.D.N.Y. 1962).
With regard to Mr. Colones, his title is Executive Vice President of McLeod Regional Hospital.
He described his duties at his deposition as being the chief operating officer of the hospital, with
responsibilities for day-to-day operations. At least four vice-presidents of McLeod report to Mr.
Colones, and he reports only to the President of McLeod. See Colones deposition transcript at
8-9. As part of his responsibilities, Mr. Colones is involved in decisions such as whether to apply
for linear accelerators. (Transcript at 9). I find that Mr. Colones is either an "officer" or a
"managing agent" of McLeod within the meaning of SCRCP 32(a), and therefore his deposition
testimony should be admitted.
Mr. McCutcheon is the Chief Financial Officer of McLeod. He is responsible for McLeod's
corporate finances and most of the hospital's directors report to him. See McCutcheon deposition
transcript at 6-7. I find that Mr. McCutcheon is either an "officer" or a "managing agent" of
McLeod within the meaning of SCRCP 32(a), and therefore his deposition testimony should be
admitted.
Ms. Lee is the Director of Marketing for McLeod. Her responsibilities include advertising and
marketing for the entire hospital. See Lee deposition transcript at 5-7. Although Ms. Lee does
not meet the qualifications of an "officer," I find that she does meet the test of a "managing
agent" as set forth above. She has been given the power to exercise her discretion and judgment
in matters under her control; she can be depended upon to carry out McLeod's direction to give
testimony, and she can be expected to identify with McLeod's interests, rather than those of any
other party. Accordingly, her deposition testimony should be admitted pursuant to SCRCP 32(a).
For the foregoing reasons, it is hereby ORDERED that:
1. QHG's motion to admit into evidence the deposition testimony of Mr. Colones, Mr.
McCutcheon, and Ms. Lee is granted.
2. QHG is hereby ordered to designate those portions of the depositions which it wishes to
introduce into evidence on or before Monday, November 13, 1995.
3. McLeod is ordered to designate any additional portions of the depositions which it wishes to
introduce into evidence on or before Tuesday, November 14, 1995. McLeod may make any
objections to specific portions of the testimony prior to the commencement of the hearing in this
matter on Wednesday, November 15, 1995.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
Columbia, South Carolina
November 9, 1995 |
