O'Bryant v. Gray Insurance Company, et al
ORDER AND REASONS: The Court will not allow any of these witnesses to testify via contemporaneous video transmission. If previously and timely identified witnesses cannot appear live, but have been deposed, the undersigned instructs all counsel to re view such recorded testimony, as per the Court's pretrial instructions, so that such testimony can be presented to the jury at trial in the form of prerecorded video presentation. Otherwise, these witnesses will not be allowed to testify unless they appear in person when called.Signed by Chief Judge Kurt D. Engelhardt on 10/19/2017.(my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TIMOTHY G. O’BRYANT
GRAY INSURANCE COMPANY, ET AL
SECTION “N” (1)
ORDER AND REASONS
At the pretrial conference in this matter held on Thursday, October 5, 2017, Plaintiff’s
counsel disclosed his intention to subpoena and call a variety of witnesses 1 via contemporaneous
video transmission pursuant to Rule 43 of the Federal Rules of Civil Procedure. At that time, since
opposing counsel had been unaware of such plan, the undersigned encouraged the parties to discuss
an agreed-upon procedure to elicit such testimony, or to advise the Court of any such objections.
Earlier this week, the Court was advised that there had been no stipulation and that Defendants
objected to proceeding with any witness testimony via contemporaneous video transmission. The
Court instructed all parties to file memoranda on the issue, which they did. (See Rec. Doc. 135,
136 and 139.)
Corporate Representative of Greenwood Leflore Hospital
Darrell Keith Chamblee
Dr. Joseph S. Bennett
Dr. Craig Clark
Dr. Bruce Newell
Dr. Ravi Pande
Rule 43(a) of the Federal Rules of Civil Procedure states:
At trial, the witnesses’ testimony must be taken in open court unless a federal
statute, the Federal Rules of Evidence, these rules, or other rules adopted by the
Supreme Court provide otherwise. For good cause in compelling circumstances
and with appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.
Thus, it is incumbent upon Plaintiff, as the party desiring to elicit such testimony via
contemporaneous video transmission, to demonstrate “good cause in compelling circumstances
and with appropriate safeguards”, in order to proceed in this fashion.
Plaintiff offers no good cause or compelling circumstances, but rather cites cases in which
other courts approved of contemporaneous video transmissions.
In two of the four cases cited, Judge Eldon Fallon of this Court allowed contemporaneous
video transmission of testimony in expansive, nationwide, multidistrict cases. In In re Vioxx
Products Liability Litigation, he cited the five factors a party must demonstrate in order to use
video conferenced testimony:
In Washington Public, although analyzing the case under the then-current Rule
45(e), the court fashioned a five-prong test for determining whether the use of
videoconferencing was permitted at trial. 1988 WL 525314, at *2-3. The five
factors were: (1) the control exerted over the witness by the defendant; (2) the
complex, multi-party, multi-state nature of the litigation; (3) the apparent tactical
advantage, as opposed to any real inconvenience to the witness, that the defendant
is seeking by not producing the witness voluntarily; (4) the lack of any true
prejudice to the defendant; and (5) the flexibility needed to manage a complex
multi-district litigation. Id. This same five-prong text was adopted and used by the
court in San Juan Dupont, 129 F.R.D. at 426. For the present case, the Court finds
that this five-prong test may also be employed to determine the existence of “good
cause” and “compelling circumstances” under Rule 43.
439 F. Supp. 2d 640, 643 (E.D. La. 2006).
This case is not the type of complex, multi-party, multi-state litigation for which flexibility
is needed to manage a complex multi-district case. In addition, the Court finds no apparent tactical
advantage in favor of Defendants, as several of these witnesses have already personally appeared
to provide deposition testimony. On the other hand, there is also no true prejudice to Defendants.
Finally, Plaintiff does not assert that any Defendant controls any of these potential witnesses, but
rather states that several “are or were employees of the defendants.” (Rec. Doc. 139, pp. 5-6). He
does not indicate which ones currently work for a defendant and are being controlled by the
defendant such that their attendance is being hindered by such employment.
Thus, the Court does not find that any circumstance exists that is of a “compelling” nature,
and fails to see any exigent situation in which Plaintiff should be so accommodated. The Advisory
Committee’s 1996 Note under Rule 43(a) provides guidance as to when such circumstances exist,
which are not present here. In short, contemporaneous video transmission for regular witness
testimony, during the course of a routine “slip and fall” case such as this, does not lend itself to
contemporaneous transmission of testimony.
Plaintiff also fails to demonstrate why such testimony could not have been taken via a
perpetuation deposition under Fed. R. Civ. P. Rule 32(4)(B), which is the normal process for
procuring the needed testimony for presentation of absent witnesses’ testimony at trial. Moreover,
some of the witnesses Plaintiff seeks to have appear via contemporaneous transmission have
already been deposed in this case, and thus their testimony has been memorialized not only in
writing but also on video. Live testimony is always preferable to a video transmission, in that the
jury can view the witness in his/her entirety, including body language, and how the witness
conducts himself/herself on the witness stand, which is particularly important in evaluating
credibility. Nothing in Rule 43(a) suggests that the contemporaneous video transmission should
be utilized simply for the convenience of counsel, or because of the mere distance of a witness
from the courthouse.
Even so, the following witnesses 2 will not be called at this trial at all, because they were
not timely listed on Plaintiff’s witness list or in the pretrial order: (1) Brian O’Bryant, (2)
Corporate Representative of Greenwood Leflore Hospital, (3) Dr. Ravi Pande, and (4) Jae Russell 3
That leaves the following witnesses which are the subject of Plaintiff’s attempt to use Rule
43(a): (1) Lee Carr, (2) Darrell Keith Chamblee, (3) Dr. Joseph S. Bennett, (4) Dustin Rabi, (5)
Dr. Craig Clark, and (6) Dr. Bruce Newell. To the extent any of the doctors listed herein will offer
expert testimony, but his medical records have not been produced, such testimony will be
Defendants also argue that Plaintiff’s subpoenas to these witnesses are invalid under Fed.
R. Civ. P. Rule 45, for more than one reason. Defendants claim that the subpoena must be issued
from this Court, where the action is pending, regardless of where compliance is required. See Fed.
R. Civ. P. Rule 45(a)(2). (See also Rec. Doc. 135, p. 6.) In so arguing, Defendants note that these
subpoenas appear to have been issued by the various United States District Courts in Mississippi
and Arkansas where these witnesses can be found. Defendants also argue that, as to subpoenas
issued to Chamblee, Carr and Rabi, no valid addresses for issuance are provided, and the copies
Plaintiff identifies the following witnesses who he proposes to examine via contemporaneous video
transmission: Dr. Craig Clark, Dr. Ravi Pande, Dr. Bruce Newell, Dr. Joseph S. Bennett, Lee Carr, Jae Russell, Dustin
Rabi, Brian O’Bryant and Darrell Keith Chamblee. (See Rec. Doc. 136, p. 2.) Defendants also have listed Mike
Dykes, whom they offered to produce in person at trial, however, he is not listed in Plaintiff’s first memorandum (Rec.
Doc. 136), but then is later (Rec. Doc. 139).
Plaintiff maintains that, although not listed by name, Jae Russell was the “rigger (not yet identified)” in the
pretrial order, which was filed last week. The Court does not accept non-specific, unidentified and unhelpful
descriptions of possible witnesses, or categories of witnesses, which can then later be named without any prior
disclosure. By the time discovery has closed and the Pretrial Order is filed, the identities of all witnesses should be
known to counsel such that they can be listed with specificity.
of the subpoenas provided to Defendants were not signed and no evidence of service has been
produced, even less than a week before trial.
The Court need not discuss procedural deficiencies or improper issuance of the subject
subpoenas because the Court does not find circumstances sufficient to warrant the invocation of
Rule 43(a)’s allowance of contemporaneous transmission of witness testimony. The Court further
notes that, on October 18, 2017, the following witnesses filed an Emergency Motion to Quash
these subpoenas: Greenwood Leflore Hospital, Dr. Asa Bennett, Dr. Bruce Newell, Dr. Craig
Clark, and Dr. Ravi Pande. See Action No. 4:17MC001-DMB-JMV, United States District Court
for the Northern District of Mississippi, Greenville Division. In their Motion to Quash, these
witnesses argue deficiencies in the subpoenas, and assert that no valid subpoena has been served,
and thus they should be quashed. This Court defers to the Mississippi District Court with regard
to those subpoenas issued by the Mississippi District Court.
In conclusion, the Court will not allow any of these witnesses to testify via
contemporaneous video transmission. If previously and timely identified witnesses cannot appear
live, but have been deposed, the undersigned instructs all counsel to review such recorded
testimony, as per the Court’s pretrial instructions, so that such testimony can be presented to the
jury at trial in the form of prerecorded video presentation. Otherwise, these witnesses will not be
allowed to testify unless they appear in person when called.
New Orleans, Louisiana, this 19th day of October 2017.
KURT D. ENGELHARDT
United States District Judge
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