Graham v. Dhar et al
Filing
112
MEMORANDUM OPINION AND ORDER: The court declines to exercise its discretion to allow video testimony because sufficiently compelling circumstances do not exist in this case. Defendants' 111 motion for video testimony is therefore DENIED. Signed by Senior Judge David A. Faber on 6/25/2020. (cc: counsel of record) (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JANET GRAHAM, Administratrix of
The Estate of Edna Marie McNeely,
Plaintiff,
v.
CIVIL ACTION NO. 1:18-00274
SUNIL KUMAR DHAR, M.D.,
BLUEFIELD CLINIC COMPANY, LLC,
d/b/a BLUEFIELD CARDIOLOGY,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ Motion to Permit
Live Trial Testimony via Contemporaneous Transmission from a
Different Location, pursuant to Federal Rule of Civil Procedure
43(a).
(ECF No. 111.)
In support of their motion, defendants
state that their expert, Jeffrey A. Kalish, M.D., is a vascular
surgeon working in Boston, Massachusetts at Boston Medical
Center.
Defendants explain that due to COVID-19, Dr. Kalish is
currently dealing with a backlog of surgical cases and that
traveling from Boston to Charleston, West Virginia to testify at
trial in late July would be extremely difficult for Dr. Kalish
and would put Dr. Kalish’s patients at risk by further
postponing their surgical treatment(s).
Counsel for plaintiff
informed the court that plaintiff opposes the motion.
For the
reasons that follow, defendants’ motion for video testimony
pursuant to Rule 43(a) is DENIED.
Rule 43(a) of the Federal Rules of Civil Procedure requires
that witness testimony be taken in person in open court except
“[f]or good cause in compelling circumstances and with
appropriate safeguards.”
The decision to allow testimony by
videoconference falls within the court's discretion.
United
States v. Kivanc, 714 F.3d 782, 791 (4th Cir. 2013).
The court is aware of the many difficulties caused by
COVID-19, including the strain it has put on our nation’s health
care system and health care providers.
The court also notes
that a few other courts have authorized trial testimony via
transmission from a different location due to problems created
by COVID-19.
See In re RFC and ResCap Liquidating Trust Action,
2020 WL 1280931, at *2-4 (D. Minn. Mar. 13, 2020) (finding that
there was “good cause” to allow live trial testimony to be
presented by contemporaneous transmission from a different
location due to the rapid spread of COVID-19 and the severity of
the virus’s symptoms).
However, the court does not find that sufficiently
compelling circumstances exist in this case.
First, to
distinguish the above case which was cited by defendants in
their motion, the In re RFC and ResCap Liquidating Trust Action
opinion was issued in the middle of trial proceedings and at the
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beginning of the COVID-19 outbreak; there was no time to find a
better solution than video testimony or to reschedule in a way
that would not prejudice the party that had not yet been allowed
to present their case.
See id. at *1-2, 4.
Here, trial is
scheduled for July 29, 2020 - over a month away – and there is
therefore adequate time for defendants and Dr. Kalish to
schedule their activities such that Dr. Kalish may testify in
person in a way that minimizes disruption and risk to his
patients.
If either party disagrees, the court is open to
receiving a motion to continue trial for a reasonable time so
that expert witnesses may be present without unduly placing
patients at risk.
Second, the Advisory Committee Notes explain that a mere
showing of inconvenience cannot justify remote transmission of
testimony.
See Fed. R. Civ. P. 43 (Advisory Committee Note to
1996 Amendment). The Advisory Committee Notes further state that
good cause and compelling circumstances are most likely to be
present when a witness is unavailable for “unexpected reasons,
such as accident or illness.”
Id.
Here, while COVID-19 causes
more than mere inconvenience, at this point COVID-19 is not
unexpected.
Nor is the potential unavailability of Dr. Kalish
unexpected – the fact that defendants have made this motion over
a month before trial demonstrates this clearly.
The court,
again, finds that there is adequate time for defendants and Dr.
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Kalish to schedule their activities such that Dr. Kalish may
testify in person in a way that minimizes disruption and risk to
his patients.
Moreover, “[t]his court shares the strong
preference for live testimony illustrated in the Federal Rules.”
Kaufman v. United States, 2014 WL 2740407, at *1 (S.D.W. Va.
June 17, 2014) (Faber, J.).
The court declines to exercise its discretion to allow
video testimony because sufficiently compelling circumstances do
not exist in this case.
Defendants’ motion for video testimony,
(ECF No. 111), is therefore DENIED.
This opinion is a denial of
defendants’ motion pursuant to Rule 43(a); this opinion does not
address a party’s ability to use video-taped disposition
testimony at trial, pursuant to Rule 32(a).
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 25th day of June, 2020.
ENTER:
David A. Faber
Senior United States District Judge
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