BROWN v. MEDSCOPE AMERICA CORPORATION et al

Filing 124

ORDER reconsidering ruling on 114 MOTION in Limine No. 13 - deposition testimony during opening statements. Deposition excerpts shall not be permitted during opening statements. Ordered by US DISTRICT JUDGE CLAY D LAND on 02/05/2024. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ERIC BROWN, Individually and as *
Administrator of the Estate of
Loretta Lewis,
*
Plaintiff,

*

vs.

*

MEDSCOPE AMERICA CORPORATION
and AVANTGUARD MONITORING
CENTERS, LLC,

*

CASE NO. 4:21-CV-71 (CDL)

*

Defendants.

*
O R D E R

The
playing

Court
of

statements.

reconsiders

excerpts

from

its

previous

video

order

depositions

permitting
during

the

opening

At the final pretrial conference in this action, the

Court ruled from the bench without the benefit of any briefing on
the issue that Plaintiff’s counsel would be permitted to play
during his opening statement excerpts from video depositions which
he had a good faith belief would be admitted during the trial.
The Court reasoned that it could conceive of no reason why an
exhibit certain to be admitted into evidence during the trial could
be displayed during the opening statement but a video deposition
certain to be admitted could not be displayed during the opening
statement.

Having given further consideration to this issue, the

Court now recognizes a distinction.

An exhibit, such as a photograph or a document, will actually
be admitted into evidence, will be published to the jury during
the trial, and will be available to the jury in the jury room
during their final deliberations.

A video deposition, however, is

not typically admitted into evidence as an exhibit.

It may be

played during the trial to simulate live trial testimony, but it
is not generally available to a jury in the jury room during their
deliberations.

Just as witnesses who testify live at trial are

not allowed in the jury room to repeat their testimony to the jury,
video recorded testimony is not generally permitted in the jury
room. 1

Because the Court now finds that it is not likely that the

actual deposition will be admitted during the trial of the case
and because playing testimony during trial is distinctly different
than actually admitting the deposition as an exhibit, Plaintiff’s
counsel shall not be permitted to play excerpts from the video
deposition during his opening statement. 2

Of course, counsel is

The Court understands that a jury could request that it be allowed to
re-hear certain testimony, but such reading back of testimony would be
done in a controlled manner and is distinctly different than having the
video deposition in the jury room for the jury to play at their
discretion.
2 As with many difficult legal issues, the Court acknowledges that
different courts have decided this issue in different ways. See, e.g.,
Kelley v. C.R. Bard, Inc., No. 2:20-CV-00045-SCJ, 2023 WL 2565853, at
*15 (N.D. Ga. Mar. 17, 2023), reconsideration denied, No. 2:20-CV-00045SCJ, 2023 WL 3032063 (N.D. Ga. Apr. 21, 2023) (prohibiting use of
depositions in opening statement absent stipulation of the parties);
United States v. Idaho Cnty. Light & Power Coop. Ass'n, Inc., No. 3:17CV-00391-CWD, 2020 WL 1105091, at *5 (D. Idaho Mar. 6, 2020) (same;
collecting cases on use of depositions during opening statements); MBI
Acquisition Partners, L.P. v. Chron. Pub. Co., No. 01-C-0177-C, 2002 WL
32349903, at *1 (W.D. Wis. Oct. 2, 2002) (permitting excerpts from a
1

2

allowed to describe to the jury what he believes that testimony
will be.

Moreover, this order does not prohibit the playing of

excerpts from video deposition testimony that is actually played
during the trial from being played during closing arguments. 3
IT IS SO ORDERED, this 5th day of February, 2024.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

video deposition during opening statement but requiring counsel to
disclose which excerpts before trial).
3 The Court acknowledges that its rationale for its decision not to
permit video deposition excerpts in opening statements could analogously
apply to closing arguments. But the Court finds that the setting is
entirely different when counsel argues his case after all evidence has
been heard by the jury and the excerpts were actually played to the jury
verbatim than when counsel is describing to the jury at the beginning
of the trial what he believes the evidence will show before the jury has
heard any evidence.

3