On Wednesday, I found myself in Orlando participating in an examination under oath (“EUO”). During discussions with the insurer’s legal counsel, the issue came up as to whether an EUO has any evidentiary value in a trial. It has always been my understanding that EUO testimony may be admissible at trial, but carrier’s counsel was of the opinion that an EUO was of no evidentiary value. I researched the question and thought it worthwhile to share my findings.
I found one published decision on the subject coming out of the United States District Court for the Southern District of Florida.1 The Southern District of Florida court denied the policyholder’s motion in limine to preclude the EUO testimony of its corporate representative from trial, classifying the EUO testimony as a party admission under Federal Rules of Evidence 801(d)(2). The court gave a preliminary ruling that the examination under oath could be used as evidence and for impeachment purposes at trial.
There were some unique facts in the Royal Bahamian case that, in my opinion, partially or wholly shaped the court’s ruling. Meaning, in my opinion, the EUO testimony admissibility question remains case-by-case. Policyholder and policyholder representatives, however, need to understand that EUO testimony may be admissible at trial.