Daigle v. Maine Medical Center, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1470

DAWN DAIGLE,

Plaintiff, Appellant,

v.

MAINE MEDICAL CENTER, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Christine M. Rockefeller, with whom Paul R. Cox and Burns,

Bryant, Hinchey, Cox & Schulte, P.A. were on brief, for

plaintiff.
Gerald F. Petruccelli, with whom Mary Mitchell Friedman and

Petruccelli & Martin were on brief, for defendant.

January 31, 1994

SELYA, Circuit Judge. This appeal seeks to test the
SELYA, Circuit Judge.

constitutionality of Maine's Health Security Act, Me. Rev. Stat.

Ann. tit. 24, 2851-2859 (West 1990) (the Health Act), the

mechanics of its application in diversity suits, and the

appropriateness of sundry evidentiary rulings made during the

course of trial in the district court. After assembling the test

results, we affirm.

I.

Background

On or about April 9, 1987, while in her thirty-first

week of pregnancy, plaintiff-appellant Dawn Daigle, a New

Hampshire resident, developed symptoms associated with pregnancy-

induced hypertension. She sought treatment at Frisbie Memorial

Hospital, Rochester, New Hampshire. There, Daigle's treating

obstetrician advised her that she required an immediate cesarean

section. Because Frisbie Memorial Hospital maintained only

rudimentary neonatal facilities, the obstetrician suggested that

the surgery be performed at a tertiary-care hospital.

Following her doctor's suggestion, Daigle presented

herself at Maine Medical Center (MMC) in the early morning hours

of April 10, 1987. Examination confirmed her obstetrician's

diagnosis and hospital personnel prepared her for immediate

surgery. The preparations did not go smoothly: while a catheter

was being inserted into the jugular vein to monitor blood

pressure and provide access to medications, Daigle's carotid

artery was punctured. A hematoma then formed in Daigle's neck,

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deviating her trachea. Consequently, although the delivery was

otherwise successful, the attending physicians were forced to

intubate Daigle while she was fully awake. Daigle was discharged

from the hospital on April 17, 1987.

II.

The Health Act

Because many of the arguments on appeal relate to the

Health Act, we offer an overview of the statutory scheme.

The Maine legislature passed the Health Act in response

to an emergent crisis that threatened the availability of medical

malpractice insurance. The legislature designed the Health Act

in an effort to stem the proliferation of medical malpractice

litigation, weed out nonmeritorious claims, and promote early

settlement of meritorious claims. See Me. Rev. Stat. Ann. tit.

24, 2851(1)(A) & (B); see also Sullivan v. Johnson, 628 A.2d

653, 655-56 (Me. 1993). By its terms, the Act requires parties

to submit medical malpractice claims to a prelitigation screening

panel as a condition precedent to court access, unless both sides

agree to bypass the panel hearing. See Me. Rev. Stat. Ann. tit.

24, 2853. Each screening panel is composed of a person with

judicial experience (such as a retired jurist), an attorney, and

either one or two health care professionals, depending on the

circumstances of the particular case. See id. 2852(2).

A screening panel is authorized to conduct evidentiary

hearings and render a decision. See id. 2854-2855. A party

who submits to the screening process is entitled to proceed with

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her court case regardless of the outcome of the panel

deliberations. See id. 2858. Withal, the panel's findings

(the Findings) are admissible as evidence in subsequent

litigation if they are unanimous. See id. When admissible, the

Findings are to be introduced "without explanation." Id.

2857(1)(B).

III.

Proceedings Below

On June 28, 1988 Daigle sued MMC in the United States

District Court for the District of New Hampshire. Invoking

diversity jurisdiction, see 28 U.S.C. 1332 (1988), she alleged

negligence relating to treatment rendered during her hospital

stay. MMC challenged the court's in personam jurisdiction, and,

failing in its jurisdictional objection, defended on the

merits.1

In due season, the district court determined that Maine

law applied to Daigle's suit and that, therefore, the Health Act

pertained. Under the compulsion of that ruling, Daigle first

presented her case to a prelitigation screening panel which

consisted of a retired jurist, two physicians, and an attorney.

After an evidentiary hearing, the panel found no acts of

negligence attributable either to MMC or to Daigle's attending

1MMC has cross-appealed from the denial of its motion to
dismiss. Given our disposition of Daigle's appeal, see infra,

nothing turns on the cross-appeal. Hence, we dismiss it by
separate order. Cf. Feinstein v. Resolution Trust Corp., 942

F.2d 34, 40-41 (1st Cir. 1991).

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physicians at MMC,viz., Dr. Constance Taylor andDr. David Bryce.2

Notwithstanding the panel's adverse decision, Daigle

decided to go forward. At trial, the district court, noting the

panel's unanimity, allowed the Findings to be introduced into

evidence. Thereafter, Daigle attempted to impeach the panel

proceedings, but to no avail; the court sustained MMC's

objections. The jury returned a verdict in MMC's favor on March

10, 1993. Daigle moved unsuccessfully for a new trial and then

appealed. We have jurisdiction under 28 U.S.C. 1291 (1988).

IV.

Discussion

A.

The Constitutional Challenges

Appellant's main offensive comprises a host of

challenges to the constitutionality of the Health Act. She

asserts, inter alia, that the statute violates principles of

equal protection and due process, and also impermissibly abridges

her right to trial by jury. Despite this asseverational array,

the constitutional sortie need not occupy us for long.

The short of the matter is that appellant failed to

raise these claims or otherwise to challenge the

constitutionality of the Health Act in the district court. Our

law is clear that a party ordinarily may not raise on appeal

issues that were not seasonably advanced (and, hence, preserved)

2Although Daigle did not sue either Dr. Taylor or Dr. Bryce
in the federal court, she later sued them in a Maine state court.
That suit is still pending.

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below. See, e.g., United States v. Slade, 980 F.2d 27, 30 (1st

Cir. 1993); Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987)

(collecting cases). The raise-or-waive rule applies with full

force to constitutional challenges. See Cohen v. President &

Fellows of Harvard Coll., 729 F.2d 59, 60-61 (1st Cir.), cert.

denied, 469 U.S. 874 (1984).

To be sure, the raise-or-waive rule is not totally

inelastic; there are exceptions to it, but, for the most part,

the exceptions are narrowly configured and sparingly dispensed.

We will, for example, relax the rule upon a showing of plain

error, see United States v. Griffin, 818 F.2d 97, 99-100 (1st

Cir.), cert. denied, 484 U.S. 844 (1987), but appellant's

constitutional claims do not qualify for such treatment. "Plain

error" requires the proponent to show that softening the rule is

necessary to prevent a clear miscarriage of justice, see id. at

100, and the "errors" assigned here are, in all events, likely to

prove a losing proposition.3 We can also relax the rule in an

"exceptional case," United States v. La Guardia, 902 F.2d 1010,

1013 (1st Cir. 1990), but we invoke that exception only when, at

a bare minimum, the omitted ground is so compelling as virtually

3At initial blush, none of appellant's constitutional
contentions are convincing. With respect to her claim that the
Health Act violates equal protection in requiring only medical
malpractice claimants to submit to screening before proceeding to
trial, we believe that the statute is rationally related to the
legitimate legislative goal of containing the sudden
proliferation of medical malpractice litigation. See Houk v.

Furman, 613 F. Supp. 1022, 1030-33 (D. Me. 1985). Appellant's

due process and Seventh Amendment claims appear to be even more
severely flawed.

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to ensure an appellant's success. See Slade, 980 F.2d at 31.

Obviously, Daigle cannot clear this hurdle. See supra note 3.

We hold, therefore, that appellant's constitutional

claims are procedurally defaulted.4

B.

The Section 2857 Challenge

Next, appellant launches a barrage of interrelated

reasons aimed at showing why the district court erred, on

evidentiary grounds, in admitting the Findings into evidence.

These theories do not withstand scrutiny.

1. The Meaning of "Without Explanation". First,
1. The Meaning of "Without Explanation".

appellant claims that the district court erred in giving literal

effect to the Health Act, which provides that unanimous panel

decisions, i.e., Findings, may be admitted into evidence at an

ensuing trial "without explanation." Me. Rev. Stat. Ann. tit.

24, 2857. The district court interpreted "without explanation"

as preventing either side from eliciting testimony concerning the

circumstances of, and deliberative process at, the panel hearing,

but as permitting counsel for the parties to comment upon the

4In connection with these claims, appellant also presses an
argument that the panel as constituted was biased, resulting in a
fundamentally unfair hearing and, hence, in a violation of her
due process rights. Unlike her other constitutional claims,
appellant successfully preserved this issue for review. But the
bottom line remains unchanged. Assuming, for argument's sake,
that the district court possessed the power to entertain
appellant's objection to the panel's supposed bias a matter on
which we do not opine our perscrutation of the record persuades
us, beyond serious question, that the district court did not
abuse its discretion in denying appellant's motion to set aside
the Findings and order a fresh start.

7

Findings in opening statements and closing arguments (a

prerogative which MMC desired and which appellant would sooner

have seen by the wayside).

In arguing that this protocol constitutes error,

appellant is whistling past the graveyard. Her position is

entirely undone by the recent opinion in Sullivan v. Johnson, 628

A.2d 653 (Me. 1993), a case in which Maine's Supreme Judicial

Court interpreted "without explanation" in precisely the manner

that the district judge anticipated. The Sullivan court elected

to read the statute "as a whole with a view toward effectuating

the Legislature's purpose of encouraging pre-trial resolution of

these claims." Id. at 655-56. Proceeding in this fashion, the

court found that because the "Legislature's intent [was] to force

final disposition of . . . claims [that the panel unanimously

determines to be without merit] short of trial," the statutory

language only barred "explanation of the panel deliberations or

proceedings." Id. at 656. In that vein, the court specifically

held that "it is permissible for the [parties] to utilize [in

opening statements and-or closing arguments] the admissible panel

findings as they would any other piece of admissible evidence."

Id.

A federal court sitting in diversity jurisdiction and

called upon in that role to apply state law is absolutely bound

by a current interpretation of that law formulated by the state's

highest tribunal. See Commissioner v. Estate of Bosch, 387 U.S.

456, 464-65 (1967). So it is here. Sullivan categorically

8

disposes of appellant's plaint.

2. The Erie Initiative. Appellant also contends that
2. The Erie Initiative.

the lower court erred, as a matter of federal evidentiary law,

both in admitting the Findings into evidence and in foreclosing

an opportunity for impeachment. Though recondite, appellant's

theory appears to be that section 2857 is a state evidentiary

rule and, as such, must give way to the Federal Rules of Evidence

in a diversity suit. See Fed. R. Evid. 101 (explaining that the

federal Evidence Rules "govern proceedings" in federal courts);

see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

Since the panel's determination is hearsay, this thesis goes, the

district court bumbled in not requiring MMC first to demonstrate

an applicable exclusion or exception to the hearsay rule in order

to justify admission of the evidence. And, moreover, appellant

remonstrates, even if the Findings were appropriately admitted

into evidence, she had a right, under Fed. R. Evid. 806, to

impeach the panelists' credibility.5

The fatal weakness in appellant's construct lies with

her premise that the Health Act's evidentiary strictures are mere

procedural rules. Authoritative case law makes clear that

federal courts sitting in diversity jurisdiction are obligated to

5Fed. R. Evid. 806 provides in pertinent part:

When a hearsay statement . . . has been
admitted in evidence, the credibility of the
declarant may be attacked, and if attacked
may be supported, by any evidence which would
be admissible for those purposes if declarant
had testified as a witness.

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apply state law unless applicable federal procedural rules are

sufficiently broad to control a particular issue before the

court. See Walker v. Armco Steel Corp., 446 U.S. 740, 749

(1980); Hanna v. Plumer, 380 U.S. 460, 470-71 (1965). In Armco

Steel, for example, the Supreme Court upheld the application of

Oklahoma's tolling statute, which required actual service of

process, in lieu of Fed. R. Civ. P. 3, which provided that a

civil action could be commenced by filing a complaint with the

court. See Armco Steel, 446 U.S. at 742-44. The Court noted the

state's policy interest in enforcing its statute of limitations

and in deferring tolling until a defendant had actual notice of a

suit. See id. at 751. On this basis, the Court reasoned that

the Oklahoma statute was a "statement of a substantive decision

by that state," forming an "'integral' part of the several

policies served by the statute of limitations." Id. at 751-52.

The Court concluded that "[federal] Rule 3 does not replace such

policy determinations," but, rather, exists "side by side" with

the state statute, "each controlling its own intended sphere of

coverage without conflict." Id. at 752.

The evidentiary provisions of Maine's Health Act are

similarly bound up with the state's substantive decision making -

in this instance, the state's choice to encourage early,

inexpensive resolution of medical malpractice claims. As

observed by Maine's highest court in Sullivan, directing that

unanimous Findings be admitted "without explanation," thereby

circumventing a replay of the screening proceeding, is a rational

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means of ensuring that panel proceedings will not become merely a

dress rehearsal, but will serve to encourage final dispositions

without the need for jury trials. See Sullivan, 628 A.2d at 656.

Since the federal Evidence Rules governing hearsay and

impeachment do not seek to displace the Health Act's policy of

limiting frivolous malpractice suits, the federal rules and the

state statute can peacefully coexist, each operating within its

own sphere of influence.

In short, we see no conflict. Indeed, a refusal to

give effect to the Health Act's evidentiary provisions would

disserve Erie principles by undercutting Erie's twin goals of

discouraging forum shopping and eliminating inequitable

administration of the law as between federal and state courts.6

See Hanna, 380 U.S. at 468; see also Armco Steel, 446 U.S. at 751

(explaining that a federal court sitting in diversity

jurisdiction ordinarily should give effect to the state's

"substantive decision[s]").

3. Form of Presentation. Appellant's last objection
3. Form of Presentation.

to the Findings centers on the form of the proffer. She avers

that the district court committed reversible error in allowing

6We note in passing that, Erie principles to one side,

admitting the Findings into evidence does not seem inconsistent
with the Evidence Rules. Since, by statute, screening panels are
administered through the superior court, admitting the Findings
is analogous to allowing into evidence the report of a master,
Fed. R. Civ. P. 53, or the reports of public offices or agencies
setting forth factual findings resulting from investigations made
pursuant to law, Fed. R. Evid. 803(8)(c), or giving effect to a
presumption respecting a fact integral to a claim or defense as
to which state law supplies the rule of decision, Fed. R. Evid.
302.

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the Findings, in written form, to be introduced as full

exhibits.7 Although appellant never articulates the theoretical

basis for the objection, her central point is apparently that

admitting the writings themselves, rather than merely eliciting

testimony recounting the Findings, violated Fed. R. Evid. 403.8

This argument is unavailing.

District courts possess wide latitude in striking a

balance under Rule 403 between the probative force and

prejudicial impact of relevant evidence. See Onujiogu v. United

States, 817 F.2d 3, 6 (1st Cir. 1987) (collecting cases). "Only

rarely and in extraordinarily compelling circumstances will

we, from the vista of a cold appellate record, reverse a district

court's on-the-spot judgment concerning the relative weighing of

probative value and unfair effect." Freeman v. Package Mach.

Co., 865 F.2d 1331, 1340 (1st Cir. 1988). The test is abuse of

discretion, see, e.g., Doty v. Sewall, 908 F.2d 1053, 1058 (1st

Cir. 1990), and we find no hint of abuse in this situation.

Given the issues in the case, the Findings were highly

relevant. The district court, recognizing the evidence's

7The panel made separate written Findings as to MMC, Dr.
Taylor, and Dr. Bryce. MMC proffered all three documents.

8Fed. R. Evid. 403 provides in pertinent part:

Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.

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capacity for prejudice, handled it gingerly, redacting the

proffered exhibits by removing the official seal of the state

superior court and the court caption. Moreover, the court gave

an appropriate cautionary instruction to the jury an

instruction to which appellant did not contemporaneously object

and to which she does not now assign error. And, because a

screening panel's findings do not have independent legal effect

outside the paper on which they are recorded, admitting a duly

authenticated writing pays appropriate tribute to the best

evidence rule. See Fed. R. Evid. 1002; see also R & R Assocs.,

Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984).

On a related topic, appellant also protests that the

court transgressed Rule 403 when it allowed MMC to introduce into

evidence the Findings that concerned Dr. Bryce and Dr. Taylor

(neither of whom was a defendant in the federal suit). We do not

think that this ruling constituted an abuse of the court's

discretion. Inasmuch as appellant's case against MMC included

theories of vicarious liability, the acts and omissions of the

two physicians MMC's agents were called into direct question,

making the disputed evidence squarely relevant to the federal

proceedings.

We will not paint the lily. All evidence is meant to

be prejudicial; elsewise, the proponent would be unlikely to

offer it. It is a necessary corollary of this conventional

wisdom that evidence cannot be kept from the jury merely because

it hurts a party's chances. See Freeman, 865 F.2d at 1339;

13

Onujiogu, 817 F.2d at 6. The element that triggers a need to

exclude evidence under Rule 403 is not prejudice, but unfair

prejudice. See United States v. Rodriguez-Estrada, 877 F.2d 153,

156 (1st Cir. 1989). No such unfairness lurks in this record.

C.

The Deposition

Appellant's final foray is a two-pronged assault

directed against the district court's ruling permitting Dr.

Bryce's deposition testimony to be placed before the jury.

First, appellant argues that MMC failed to establish the doctor's

unavailability. Second, she maintains that the testimony should

have been excluded because the deposition was incomplete. These

incursions lack force.

1. Unavailability. The Civil Rules provide in
1. Unavailability.

relevant part that "[t]he deposition of a witness . . . may be

used by any party for any purpose if the court finds . . . the

witness is at a greater distance than one hundred miles from the

place of trial or hearing." Fed. R. Civ. P. 32(a)(3)(B). In

general, the district court has discretion in matters of case

management, see, e.g., Thibeault v. Square D Corp., 960 F.2d 239,

242 (1st Cir. 1992); In re San Juan Dupont Plaza Hotel Fire

Litig., 859 F.2d 1007, 1019 (1st Cir. 1988), and we think the

same deference attaches to the court's rulings under Rule 32.

See Oostendorp v. Khanna, 937 F.2d 1177, 1179 (7th Cir. 1991)

14

(holding that "the decision to admit deposition testimony is

within the sound discretion of the district court"), cert.

denied, 112 S. Ct. 951 (1992); Reeg v. Shaughnessy, 570 F.2d 309,

317 (10th Cir. 1978) (similar). Hence, we will not disturb the

district court's finding that a witness is more than one hundred

miles away, or otherwise unavailable for trial, absent a clear

showing of discretion misused.

Appellant has not made such a showing. Before

authorizing resort to the deposition, the district court

considered Dr. Bryce's statement, made during his deposition,

that he was soon to move to Wisconsin. The court also considered

a letter sent by the doctor to his attorney shortly before trial

in which he indicated he would be unable to leave Wisconsin in

order to testify. Appellant did not then, nor does she now,

dispute that Dr. Bryce had relocated, and she concedes that

Wisconsin is more than one hundred miles from the New Hampshire

border. This one-sided record is ample to sustain the district

court's finding that Rule 32(a)(3)(B) had been satisfied.

Appellant's rejoinder is twofold. Initially, she

suggests that Rule 32(a)(3)(B) requires an evidentiary showing of

unavailability. But the rule itself imposes no such condition

and we see no reason to read such a condition into it. Under

ordinary circumstances, a district court possesses the power to

accept, and act upon, a reliable explanation of a deponent's

15

whereabouts without convening an evidentiary hearing.9 See

Hartman v. United States, 538 F.2d 1336, 1345-46 (8th Cir. 1976)

(upholding district court's admission of deposition solely upon

deponent's uncontradicted statement, seven months before trial,

that he lived more than one hundred miles form the courthouse;

noting, inter alia, that deponent had no apparent reason to

return for trial).

Next, appellant intimates that a witness, though at the

stated distance from the place of trial, is not unavailable if,

with reasonable efforts, he might be persuaded to attend. But

the language of the rule does not permit a court to read this

sort of qualification into it. Distance is the decisive

criterion: so long as a witness is shown to be more than one

hundred miles from the place of trial, the admissibility of

deposition testimony under the aegis of Rule 32(a)(3)(B) is not

contingent upon a showing that the witness is otherwise

unavailable.10 See Carey v. Bahama Cruise Lines, Inc., 864

F.2d 201, 204 n.2 (1st Cir. 1988).

9Appellant relies heavily on Moore v. Mississippi Valley

State Univ., 871 F.2d 545 (5th Cir. 1989), a case in which the

Fifth Circuit upheld a district court's exclusion of deposition
testimony under Rule 32(a)(3) because the proffering party
"offered nothing except the plain assertion that [the deponent]
was unavailable." Id. at 552. As recounted above, however, the

facts in the case at hand are crucially different. Whereas the
attorney in Moore "made no effort to explain the unavailability

or offer some explanation to the trial court," id., MMC offered

an uncontroverted, entirely plausible explanation.

10There is, of course, an exception for cases in which "it
appears that the absence of the witness was procured by the party
offering the deposition." Fed. R. Civ. P. 32(a)(3)(B). This
case falls outside the boundaries of that exception.

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2. Completeness. Appellant's last line of fire is
2. Completeness.

trained on the putative incompleteness of Dr. Bryce's deposition.

Before advancing to the merits of this assertion, we note that

the broad discretionary powers to manage cases, which are

necessarily enjoyed by district courts, apply to the regulation

of discovery disputes. See Thibeault, 960 F.2d at 242; San Juan

Dupont Plaza, 859 F.2d at 1019. We believe that this discretion

extends to determining whether a deposition is reasonably

complete. Moreover, even if it is determined that a deposition

is not complete, a court has the power to allow all or part of

the testimony into evidence if customary standards of

admissibility have been met and if no unfairness inheres. See

Lentomyynti Oy v. Medivac, Inc., 997 F.2d 364, 371 (7th Cir.

1993); see also Fed. R. Evid. 611 (recognizing the district

court's control over "the manner in which deposition testimony is

presented"); Fed. R. Civ. P. 32(a) (providing for use of "any

part or all of a deposition, so far as admissible under the rules

of evidence" and directing the district court to consider

"fairness" if less than all of the deposition testimony is to be

admitted).

In the instant case, the court made an implicit finding

that the deposition had been completed. We think such a finding

is supportable. Dr. Bryce was examined on November 29, 1989.

The examination was suspended after a dispute arose anent access

to two memoranda. Appellant thereafter filed a motion to compel

production of the memoranda, which the court granted on July 26,

17

1990. MMC promptly complied with the turnover order. A fair

reading of the memoranda in light of appellant's line of inquiry

at the deposition suggests that her attorneys declined to resume

the deposition because they did not perceive that fruitful

queries remained to be posed.

Even if the deposition properly could be classified as

unfinished business, we would reject the assignment of error. In

the first place, the district court carefully redacted the

deposition to prevent any cognizable unfairness. In the second

place, if appellant, after receiving the memoranda, thought that

they bore on Dr. Bryce's testimony, it was incumbent upon her to

renotice and resume the deposition at some point during the

nearly three years that intervened between production of the

memoranda and the start of trial. We have held in various

contexts that a party who does not actively pursue perceptible

rights in the district court is at grave risk of waiver, and may

well be barred from asserting those rights on appeal. See, e.g.,

Dow v. United Bhd. of Carpenters & Joiners, 1 F.3d 56, 61 (1st

Cir. 1993) (holding that plaintiffs waived any right to complain

of refused discovery because, after district court declined their

initial discovery request with leave to renew, plaintiffs failed

to make a second request); Reilly v. United States, 863 F.2d 149,

168 (1st Cir. 1988) (finding waiver of right to challenge judge's

appointment of technical advisor). We see no reason to deviate

here from our usual practice of denying relief to parties who

18

have slept too long upon their rights.11

Affirmed. Costs to appellee.

11This practice seems fully compatible with Civil Rule 32.
The rule's "general principle is to require defects in the taking
of depositions to be pointed out promptly on pain of waiver" so
as to "give the erring party an opportunity to correct the
mistake, and to prevent waste of time and money by a subsequent
claim that a deposition must be suppressed because of some
technical error long ago." 8 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure 2153, at 475 (1970); cf.

Fed. R. Civ. P. 32(d)(3) (ordaining that "errors of any kind
which might be obviated, removed, or cured if promptly presented,
are waived unless seasonable objection thereto is made at the
taking of the deposition").

19