In the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, plaintiffs introduced as evidence at trail on sovereign immunity the de bene esse deposition of a key witness taken in the initial proceeding that was non-suited. Defendant Burns objected, referring generally to Va. Sup. Ct. Rule 7.
But Rule 4:7(a)(7) provides “when an action in any court of the United States or of this or any other state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the one action may be used in the other as if originally taken therefore”. Moreover, the Virginia Supreme Court has ruled on point in favor of Plaintiffs.
“[P]rior testimony is admissible if the court is satisfied: (1) that the party against whom the evidence is offered, or his privy, was a part to the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.” Gray v. Graham, 231 Va. 1, 5 (1986). The salutary rule of Gray is followed by its progeny. E.g., Morgan v. Commonwealth, 50 Va. App. 369, 376 (2007); Jones v. Commonwealth, 22 Va. App. 46, 51 (1996); and Commonwealth Transp. Comm’r v. Wee Folks Nursery, Inc., 371 Va. Cir. 463, 464 (1996).”