Mullins et al v. Johnson & Johnson et al

Filing 236

MEMORANDUM OPINION AND ORDER (Plaintiffs' Motion to Permit Live Trial Testimony via Contemporaneous Transmission) granting 170 MOTION by to Permit Live Trial Testimony Via Contemporaneous Transmission provided the plaintiffs can make all arrangements with this court and a suitably equipped federal court in the appropriate district to ensure that two-way audio and video transmissions will be fully functional during trial. Signed by Judge Joseph R. Goodwin on 12/7/2015. (cc: counsel of record; any unrepresented party) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TERRESKI MULLINS, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:12-cv-02952

ETHICON, INC., et al.,
Defendants.

MEMORANDUM OPINION & ORDER
(Plaintiffs’ Motion to Permit Live Trial Testimony
via Contemporaneous Transmission)
Pending is the plaintiffs’ Motion to Permit Live Trial Testimony via
Contemporaneous Transmission [ECF No. 170] (“Pls.’ Mot.”). The defendants filed
their Response [ECF No. 212] on November 9, 2015, and the plaintiffs filed their
Reply [ECF No. 230] on November 12, 2015. The Motion is now ripe for consideration.
As set forth below, the Motion is GRANTED, subject to the conditions herein.
I.

Background
The plaintiffs wish to call at trial Dan Smith and Laura Angelini. Smith is an

engineer for Ethicon and, among other things, “has intimate knowledge of the design
of the TVT.” Mem. Supp. Pls.’ Mot. 3 [ECF No. 171] (“Pls.’ Mem.”). Angelini—the
“godmother of TVT”—has worked for Johnson & Johnson and its subsidiaries for
more than twenty years. Id. According to the plaintiffs, “[t]hese witnesses possess

knowledge that is crucial to this [consolidated] case.” Id. Both were deposed as
witnesses pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Resp. 1–
2.
The plaintiffs want to present the live testimony of Smith and Angelini, but
the defendants have refused to make Smith and Angelini available. Pls.’ Mem. 4. As
a result, the plaintiffs now seek the court’s intervention, requesting the court to
permit live video testimony of these witnesses. In the alternative, the plaintiffs ask
the court to “order a trial deposition of each witness to be used by both [parties] at
trial in lieu of live testimony” and to “bar [d]efendants from using live testimony of
any witness they refuse to make available for [p]laintiffs’ case.” Id.
II.

Legal Standard
A federal district court “may permit testimony in open court by

contemporaneous transmission from a different location.” Fed. R. Civ. P. 43(a).
Testimony of this type is permitted only on showing “good cause in compelling
circumstances.” Fed. R. Civ. P. 43(a). When determining whether there is good cause
and compelling circumstances, other courts have considered various factors:
(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.
In re Vioxx Prods. Liab. Litig., 439 F. Supp. 2d 640, 643 (E.D. La. 2006).

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III.

Discussion

The limited issue presently before the court is whether good cause and
compelling circumstances favor the presentation of Smith and Angelini’s testimony
via live video transmission or by an attorney’s cut of their deposition videos.1 While
live testimony in court may be preferable, it is not possible here because the
defendants refuse to make these witnesses available and these witnesses cannot be
haled to a West Virginia courthouse. The second-best option (i.e., live video
testimony) is appropriate here for a number of reasons.
First, the defendants unquestionably have control of the witnesses because
they currently employ Smith and Angelini, both of whom are relatively important
and knowledgeable employees. See Vioxx, 439 F. Supp. 2d at 643 (finding employer
had “significant control” of witness “based on [his] occupation” as an upper-level
officer).
Second, this consolidated case, in and of itself, involves complex issues and
multiple parties. This small compilation of West Virginia cases also represents a
much larger collection of cases that involves parties from across the several states.
As a result, this small sampling of cases will bear on many more cases beyond the
bounds of this consolidated trial. See, e.g., PTO No. 184, at 7 (“[The disposition of

Whether a subpoena may issue is not before the court. Any discussion of the applicability and reach
of Rule 45 of the Federal Rules of Civil Procedure is tertiary to the relief requested by the plaintiff
(i.e., that the court “permit live trial testimony via contemporaneous transmission”). Pls.’ Mot. 1. The
court will not assume the plaintiffs are requesting an order compelling the witnesses to testify via live
video transmission when the plaintiffs have not sought a subpoena to this effect and have not clearly
stated they are seeking such an order.
1

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[these] TVT cases on this issue of design defect in one trial may facilitate settlement
among the parties . . . .”).
Third, whether the defendants are attempting to gain a tactical advantage is
not immediately identifiable. But Vioxx provides illumination. There, despite the
plaintiff’s offers to pay travel expenses, the defendant refused to produce a witness
who “possesse[d] information highly-relevant [sic] to the plaintiff’s claims.” Vioxx, 439
F. Supp. 2d at 643. This information had the potential to damage the defendant’s
position, so the court assumed the defendant was refusing to make the witness
available “to eliminate any unpredictability and limit [the witness’s] trial testimony
to his ‘canned’ deposition testimony—a purely tactical reason.” Id. Here, aside from
the offer to pay travel expenses, the court is presented with the same circumstances:
the witnesses are relatively important and knowledgeable employees of the
defendants, the defendants refuse to make these witnesses available, and the
defendants want to limit the testimony of these witnesses to deposition testimony.
The court agrees with the Vioxx court’s assessment and finds these circumstances
show the defendants’ refusal is purely tactical.
Fourth, the defendants do not claim they will be prejudiced by live video
transmission of the witnesses’ testimony. The court will not conjure up potential
prejudices to support the defendants’ position.
Fifth, the management of complex multi-district litigation of this variety
requires flexibility. This consolidated case may impact hundreds and thousands of
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cases in this MDL, so it is important to ensure a coherent presentation of the
evidence. Live video transmission will promote coherency, especially when the
alternative is spliced, edited, and recompiled clips of depositions that took place over
multiple days. Additionally—considering the volume of cases in this MDL—it is
important to ensure efficient use of judicial resources. Again, live video transmission
will promote this interest, relieving the district court and the magistrate court of the
burden of reviewing voluminous transcripts of multi-day depositions, analyzing hours
of edited videos submitted for trial, and then ruling on objections to those videos.
Each factor tips the scale further in favor of testimony by live video
transmission. Testimony of this sort may be less favorable than live testimony from
a witness seated at the witness stand, but it is more favorable than an attorney’s cut
of deposition videos. Vioxx, 439 F. Supp. 2d at 644 (finding live video transmission
“satisfies the goals of live, in-person testimony and avoids the short-comings of
deposition testimony”). At bottom, good cause and compelling circumstances support
the presentation of Smith and Angelini’s testimony via live video transmission.
IV.

Conclusion
Accordingly, the plaintiffs’ Motion to Permit Live Trial Testimony via

Contemporaneous Transmission [ECF No. 170] is GRANTED provided the plaintiffs
can make all arrangements with this court and a suitably equipped federal court in
the appropriate district to ensure that two-way audio and video transmissions will be
fully functional during trial. The plaintiffs are advised to consult and comply with the
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Local Rules for the Southern District of West Virginia as they make these
arrangements.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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December 7, 2015