Seubert v. FFE Transportation Services, Inc. et al
Filing
117
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs motion for leave to take, prior to trial, a videotaped deposition of Dr. Richard Coy is GRANTED. (Doc. No. 113.) IT IS FURTHER ORDERED that Plaintiff shall pay Defendants costs attributable to the preparation of the expedited transcript. Signed by District Judge Audrey G. Fleissig on 5/23/2013. (KSH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES G. SEUBERT,
Plaintiff,
v.
FTE TRANSPORTATION
SERVICES, INC. , et al.,
Defendants.
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Case No. 4:11CV01651 AGF
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion for leave to take a videotaped
trial deposition of Dr. Richard Coy, Plaintiff’s expert and treating chiropractor, because
the witness will not be available to testify at trial, due to a previously scheduled vacation
that conflicts with the recent re-setting of the trial date in this matter.
Defendants object to the videotaped trial deposition on the ground that Plaintiff
deposed Dr. Coy for purposes of discovery, approximately one year ago, prior to the
discovery cut-off in this case. In addition, Defendants assert that Dr. Coy’s unavailability
has not been established because he will be available to testify on the first day of the trial
but not thereafter.
Upon consideration of Plaintiff’s motion and Defendants’ opposition thereto, the
Court concludes that just as the discovery deposition of Dr. Coy would not preclude his
testimony at trial, it does not stand as an impediment to the taking of a trial deposition
due to his unavailability at the time of trial. In addition, the Court is satisfied that
Plaintiff has sufficiently established Dr. Coy’s unavailability. Although Dr. Coy is
available on the first day of trial, uncertainty about the time required for jury selection,
other preliminary instructions and the time needed for Dr. Coy’s testimony makes it
impossible for the Court to say with any certainty that Dr. Coy would be reached to
testify on the first day of trial. In addition, although there is a preference for live
testimony in federal court, there is little danger here of prejudice to Defendants as a result
of the use of a videotaped deposition at trial. Defendants will attend the videotaped trial
deposition and be permitted to cross examine Dr. Coy. In addition, the videotaping of the
deposition will not only allow the jury to hear the content of Dr. Coy’s testimony, but
also to observe the witness’ demeanor.
For these reasons, the Court concludes that “exceptional circumstances make it
desirable – in the interest of justice – and with due regard to the importance of live
testimony in open court” that Dr. Coy’s videotaped trial deposition be taken prior to trial
and used in lieu of his live testimony. Fed. R. Civ. P. 32(a)(4)(E).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to take, prior to
trial, a videotaped deposition of Dr. Richard Coy is GRANTED. (Doc. No. 113.)
IT IS FURTHER ORDERED that Plaintiff shall pay Defendants’ costs
attributable to the preparation of the expedited transcript.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of May, 2013.
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