Opinion
Civil Action No. 96-3237.
October 30, 1998
David J. Stutman, Esq., Fox, Rothschild, O'Brien Frankel, Philadlephia, PA., Jeffrey A. Savage, DAG, Dept. of Law and Public Safety Division of Law, Newark, N.J.
LETTER-OPINION AND ORDER ORIGINAL FILED WITH THE CLERK OF THE COURT
Dear Counsel:
INTRODUCTION
I conducted a pretrial conference in this civil action on September 17, 1998. At that time plaintiff purported to reserve "the right to introduce at trial the videotape depositions of Charles Kalko, M.D., Maurice Romy, M.D., [and] Joel Swartz, M.D." Defendant objected to this reservation, and also objected to "the videotaping of the trial testimony of medical or other experts." I directed plaintiff to make an application for leave to videotape the depositions of these experts.
I have considered the written submissions of the parties on this application. There was no oral argument. Rule 78.
DISCUSSION
The dispute between the parties here is a recurring one in FELA actions such as the one sub judice: Whether a plaintiff may present expert medical opinion through videotaped deposition testimony rather than produce a "live" expert witness at trial. Prior to addressing that issue, however, I deem it appropriate to review the applicable civil rules as to the manner and taking of depositions.Rule 30(b)(2) of the Federal Rules of Civil Procedure provides:
The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by non- stenographic means.
Rule 30(b)(3) provides:
With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party's expense unless the court otherwise orders.
These provisions of Rule 30(b) are discussed in the Advisory Committee Notes to the 1993 amendments:
Subdivision (b). The primary change in subdivision (b) is that parties will be authorized to record deposition testimony by nonstenographic means without first having to obtain permission of the court or agreement from other counsel. ***
New paragraph (2) confers on the party taking the deposition the choice of the method of recording, without the need to obtain prior court approval for one taken other than stenographically. *** Objections to the nonstenographic recording of a deposition, when warranted by the circumstances, can be presented to the court under Rule 26(c).
Paragraph (3) provides that other parties may arrange, at their own expense, for the recording of a deposition by a means (stenographic, visual, or sound) in addition to the method designated by the person noticing the deposition. ***.
Either party could have noticed the depositions of plaintiff's expert witnesses. Either party could have stated that the depositions would be conducted by "sound-and-visual" means. Either party could have sought the intervention of the Court with regard to the method by which the deposition testimony would be recorded. Either party could have designated another method to record deposition testimony "in addition to the method specified by the person taking the depositions." None of these events occurred in the action sub judice.
Plaintiff now seeks leave to conduct videotape depositions of his medical experts. Plaintiff's application is presented as one to "present the videotape depositions of Doctors Kalko, Romy and/or Swartz at the time of trial in lieu of live testimony." Plaintiff's basis for this application is as follows:
Both Dr. Romy and Dr. Kalko are neurosurgeons and these doctors have extremely busy schedules. It is my understanding that, based on their schedules, these doctors may not be available to testify live at the time of trial. We will, however, make every effort to secure their attendance as live witnesses at the time of trial. [Plaintiff's September 29 letter-brief].
Similarly, in his October 2nd letter-brief, plaintiff stated that,
[b]ecause the testimony sought to be introduced by plaintiff by way of videotape depositions is that of two neurosurgeons in a neuroradiologist, who have extremely busy medical schedules, we believe that exceptional circumstances exist under Federal Rule 32(a)(3)(E) under which the Court may issue an Order at this time allowing the introduction of videotape depositions.
Defendant, in its October 16th letter-brief in opposition to the application, states:
It is defendant's position that the use of videotaped depositions in place of live testimony is not a mere matter of convenience but is instead an alternative available only when the witness is unavailable. Unavailability is defined in the Rules specifically, Rule 32, and the `possibility' that a witness is not going to be around is insufficient, and certainly not an exceptional circumstance. At this time no firm trial date has been set, and no concrete reasons for the unavailability of the witnesses have been set forth. It was never defendant's position that under no circumstances may videotaped depositions be used at trial, as defendant recognizes that the rules provide for such use when the witness is properly `unavailable' under Rule 32. Defendant therefore objects at this time to any Order allowing the introduction of unspecified videotaped depositions at trial.
Whether a deposition may be used at trial is governed by Rule 32(a). Rule
32(a)(3)(E) is controlling here. It provides:
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
"[T]he Federal Rules have not changed the long-established principle that testimony by deposition is less desirable than oral testimony and should ordinarily be used as a substitute only if the witness is not available to testify in person ***. Although the increasing availability and fidelity of videotaped depositions has provided a better alternative than reading a written transcription, the preference for live testimony is still endorsed by federal courts." C. Wright, A. Miller R. Marcus, 8AFederal Practice and Procedure § 2142 at 158-59 (2d ed. 1994) (footnote omitted); see Griman v. Makousky, 76 F.3d 151, 153 (2d Cir. 1996) (expressing "the strong preference of Anglo-American courts for live testimony").
"The party seeking to admit a deposition at trial must prove that the requirements of 32(a) have been met." Allgeier v. United States, 909 F.2d 869, 876 (6th Cir. 1990). "The showing that one of the conditions set out in Rule 32(a)(3) exists need not be made at the time the deposition
is taken. The existence of the condition is the question to be determined by the trial court at the time the deposition is offered in evidence." See C. Wright, A. Miller R. Marcus, 8A Federal Practice and Procedure, § 2146 at 173 (2d ed. 1994) (footnote omitted). Plaintiff's application for leave to videotape his medical expert witnesses is thus separate from an in limine application to admit the videotaped depositions into evidence. However, given the posture of this civil action, when the videotaped depositions would be taken for the sole purpose of admitting these into evidence, I deem it appropriate to determine whether "exceptional circumstances" could exist under Rule 32(a)(3)(E) to determine whether the videotaped depositions should be taken.
"[T]he decision whether or not to allow the use of a deposition at trial *** is within the discretion of the trial court ***." Allgeier,supra, 909 F.2d at 876. "Rule 32 assumes that under normal circumstances the deposition of a witness will not be used at trial in lieu of that witness's live testimony." Bobrosky v. Vickers, 170 F.R.D. 411, 413 (D.W. Va. 1997) (footnote omitted). To determine whether "exceptional circumstances" within the meaning of Rule 32(a)(3)(E) exist, courts often look to its companion provisions. In Griman, the Seventh Circuit Court of Appeals observed that,
[e]ven `serious prejudice' from the exclusion of a deposition has been held not to be an exceptional circumstance in and of itself. Angelo v. Armstrong World Industries, Inc., 11 F.3d 957, 963-64 (10th Cir. 1993); see also Allgeier v. United States, 909 F.2d 869, 876 (6th Cir. 1990). The other subsections of Rule 32(a)(3) make clear that it is not only a party's need for the evidence in the deposition, but also the nature of the circumstances that have made the deponent unavailable to testify, that determines whether the circumstances can be thought exceptional. Indeed, if harm were all that mattered, there would be no need for any of the other subsections [ 76 F.3d at 151 (footnote omitted)].
In Allgeier, the Sixth Circuit Court of Appeals stated:
How exceptional the circumstances must be under Rule 32(a)(3)(E) is indicated by its companion provisions. These authorize use of a deposition in lieu of live testimony only when the witness is shown to be unavailable or unable to testify because he is dead; at a great distance; aged, ill, inform or imprisoned; or unprocurable through a subpoena. Rule 32(a)(3)(A)-(B). [ 909 F.2d at 876].
"[T]he inquiry [whether there are "exceptional circumstances"] has been whether the situation is appropriately analogous to the unavailability of a witness because of a death; the witness's distance greater than 100 miles from the courthouse; the witness's age, illness, infirmity or imprisonment; or the party's inability to procure the witness through subpoena." Bobrosky, supra, 170 F.R.D. at 414.
Plaintiff argues that "exceptional circumstances" exist here because his medical expert witnesses are neurosurgeons and a neurologist who have "busy medical schedules." Federal courts have addressed analogous arguments with mixed results:
Courts have split on whether a doctor's extremely busy schedule or other extenuating circumstances may rise to the level to be considered `exceptional circumstances' for the purpose of Rule 32(a)(3)(E). Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 963-64 (10th Cir. 1993) (Doctor's `extremely busy' schedule was not `exceptional circumstance' under Rule 32(a)(3)(E).); Melore v. Great Lakes Dredge Dock Co., No. CIV. A.95-7644, 1996 WL 548142, at *3-4 (E.D.Pa. Sept. 20, 1996) (Subpoenaed doctor who wrote letter advising court of her `absolute unavailab[ility]' constituted `exceptional circumstances.'); Rubel v. Eli Lilly and Co., 160 F.R.D. 28, 29 (S.D.N.Y. 1995) (Doctor in practice group of four physicians who because of the uncontrollable absence of the other three doctors had to temporarily handle entire practice alone presented `exceptional circumstances,' although deposition was still not allowed and doctor's testimony was instead rescheduled.); Borchardt v. United States, 133 F.R.D. 547 (E.D.Wis. 1991) (Cost differential of $375 for deposition testimony and between $1,000 and 1,250 for live testimony was `exceptional circumstance' where plaintiff's total claim was only $12, 402.); Reber v. General Motors Corp., 669 F. Supp. 717, 720 (E.D.Pa. 1987) (Rule 32(a)(3)(E) satisfied where doctor who was not expected to be within 100 miles of courthouse returned but indicated he could not testify because of a heavy surgical schedule and both parties admittedly expected that doctor's deposition would be used at trial.). [Bobrosky, supra, 170 F.R.D. at 415].
In Bobrosky, defendant sought leave to use the depositions of the doctors at trial in lieu of live testimony. Defendant argued that "exceptional circumstances" existed "because of the great expense with which the depositions were taken; because she took the depositions with the expectation that they would be used at trial; and that the witnesses, both of whom are doctors, have busy practices and might get angry or hostile if subpoenaed for trial after giving such lengthy depositions." 170 F.R.D. at 414. The Bobrosky court denied defendant's motion:
Defendant has not, however, presented any evidence or even asserted that the doctors' schedules or personal circumstances would preclude them from being able to appear in court. Instead, defendant suggests that the depositions themselves and the hostility of the doctors are sufficient. However, the court finds that these justifications do not rise to the level of `exceptional circumstances.' [ 179 F.R.D. at 415].
The Bobrosky court did allow one deposition to be used at trial, having found that the parties stipulated to that use under Rule 29. 170 F.R.D. at 415-16.
Has plaintiff proved that "exceptional circumstances" exist? I accept that plaintiff's medical experts are specialists in their fields and have busy schedules. However, to accept that such facts constitute "exceptional circumstances" would eviscerate the presumption in our juris- prudence favoring live testimony. "[D] ue regard [must be given] to the importance of presenting the testimony of witnesses orally in open court ***." Rule 32(a)(3)(E). I appreciate the importance of medical specialists and their schedules. However, similar arguments could be routinely employed on behalf of others in occupations and professions. Moreover, no trial date has been set. In my experience, the trial court would be amenable to setting a "date certain" for the commencement of trial so as to cause the least inconvenience to the parties, their attorneys, and all witnesses.
CONCLUSION
Plaintiff chose medical specialists as his experts. Those medical experts presumably agreed to serve as expert witnesses. With that agreement those expert witnesses knew (or should have known) that they might be required to testify at deposition and at trial. Their testimony is essential to plaintiff's proof of damages. These damages are contested. Plaintiff has not borne his burden of proof.
For the reasons set forth above, plaintiff's application is DENIED.
Plaintiff had available two alternatives to this application. First, plaintiff might have noticed the videotape depositions of his own experts during the course of discovery. See Rule 30(b)(2). (Of course, the videotaped deposition would not be admissible at trial unless plaintiff met one of the provisions of Rule 32(a)). Second, to avoid the "hurdle" of Rule 32(a), plaintiff could have sought to enter into a stipulation with defendant for the use of a videotaped deposition at trial pursuant to Rule 29(2). See Bobrosky , supra , 170 F.R.D. at 415-16 .
SO ORDERED.
_____________________ RONALD J. HEDGES UNITED STATES MAGISTRATE JUDGE
Orig.: Clerk
cc: U.S.D.J.
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