Admission of deposition testimony; Unavailable witness under MRE 804(b)(5)(A); Opportunity & similar motive to develop testimony; Waived issue as to jury instructions

The court concluded that the “trial court did not abuse its discretion by determining that” plaintiff-Brunner’s supervisor (nonparty-S) “was an unavailable witness under MRE 804(b)(5)(A).” It also did not abuse its discretion by finding that defendant-Concentrix “had an opportunity and similar motive to develop [S’s] testimony at her deposition.” Thus, the court affirmed the trial court’s judgment entered after a jury trial, awarding Brunner $1,090,391.96 plus costs and attorney’s fees. Concentrix argued “that Brunner failed to demonstrate that [S] was an unavailable witness.” The court noted that the “trial court found that [S] lived more than 100 miles from the place of trial. Concentrix has not challenged that finding and does not argue that [S’s] absence was procured by Brunner.” Concentrix also argued “that it ‘did not have the same motive to examine [S] at her discovery deposition as at trial.’” It contended it would have used an e-mail S had sent “on cross-examination to impeach [her] credibility if she had testified at trial; because it was unable to do so, it was deprived of the opportunity to cross-examine [S] about her unfounded allegations.” But the court noted that Concentrix introduced the “email at trial during its examination of another witness, and was not prohibited from arguing that the email impeached [S’s] credibility because it did not contain any comments about Brunner’s termination or any concerns about age discrimination.” The court further noted that “two witnesses testified that [S] never raised concerns with them regarding Brunner’s termination.” The court found that “Concentrix had the same motive to cross-examine [S] at her deposition as it did at trial: to show that” her supervisor’s (JS) “decision to terminate Brunner was not based on his age, or even that [JS] was not aware of Brunner’s age. The deposition was conducted by Concentrix, lasted for several hours, and occurred a full year after the e-mail was sent. Moreover, Concentrix admitted [S’s] e-mail into evidence at trial, and had the opportunity to argue that she never raised any complaints to management regarding Brunner’s termination.”