Hall, Katherine v. Boston Scientific Corp.

Filing 80

ORDER granting 39 Motion to Permit Live Trial Testimony via Contemporaneous Transmission. Signed by District Judge Barbara B. Crabb on 9/9/2015. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - KATHERINE L. HALL,
ORDER
Plaintiff,
15-cv-338-bbc
v.
BOSTON SCIENTIFIC CORP.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Katherine Hall is suing defendant Boston Scientific Corp. for injuries she
says she sustained from using defendant’s Obtryx pelvic mesh device.

Most pretrial

proceedings were handled in multidistrict litigation, but the case was transferred to this court
for trial, which is scheduled for October 13, 2015. Now before the court is plaintiff’s motion
under Fed. R. Civ. P. 43 and 45 to require three witnesses to testify remotely by a video
transmission. Dkt. #39. Plaintiff’s motion applies to three of defendant’s employees, James
Goddard (a research and development manager), Janice Connor (the director of clinical
programs for the urology and women’s health division) and Doreen Rao (an engineer).
None of the witnesses have agreed to testify at trial voluntarily.
Under Fed. R. Civ. P. 43(a), a court may grant a request for a witness to testify
remotely for “good cause in compelling circumstances and with appropriate safeguards.”
Because the witnesses live outside Wisconsin and more than 100 miles from the courthouse,

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the court cannot compel the witnesses to come to the courthouse to testify. Fed. R. Civ. P.
45(c)(1). Thus, in the absence of live video testimony, the parties will have to rely on video
depositions to present the testimony of these three witnesses. All things being equal, live
testimony is preferable to a deposition, both because it allows for a fuller presentation of the
facts and because it is more engaging for the jury.
Defendant cites the Advisory Committee Notes to support the view that a court
should not grant a request under Rule 43 unless the need for remote testimony is
unanticipated. However, the primary concern of the committee seems to be with a party’s
attempt to present remote testimony from a witness who otherwise could be compelled to
testify in court. The committee wrote:
The importance of presenting live testimony in court cannot be forgotten. The
very ceremony of trial and the presence of the factfinder may exert a powerful
force for truthtelling. The opportunity to judge the demeanor of a witness
face-to-face is accorded great value in our tradition. Transmission cannot be
justified merely by showing that it is inconvenient for the witness to attend
the trial.
The most persuasive showings of good cause and compelling circumstances are
likely to arise when a witness is unable to attend trial for unexpected reasons,
such as accident or illness, but remains able to testify from a different place.
Contemporaneous transmission may be better than an attempt to reschedule
the trial, particularly if there is a risk that other—and perhaps more
important—witnesses might not be available at a later time.
In other words, the committee was concerned that remote testimony is less desirable
than testimony in court because it may deprive the parties and the factfinder of the fullest
presentation of the evidence.

Obviously, this concern does not apply when the alternative

to remote testimony is deposition testimony, which is yet another step removed from

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testimony in court.
Defendant says that it will be prejudiced by requiring the three witnesses to testify
remotely, but its argument is unconvincing. In particular, defendant says that the witnesses
already have provided deposition testimony multiple times and they may have to testify for
other cases involving similar claims, so it is unduly burdensome for them to testify again at
trial. However, plaintiff’s request does not subject these witnesses to any greater burden
than the one they would face if they lived closer to the courthouse. In other words, a witness
who lives within 100 miles of the location of the trial cannot be excused from testifying at
trial simply because she testified earlier. Because plaintiff is not asking these witnesses to
travel more than 100 miles and she has offered to pay the witnesses’ expenses associated
with their testimony, I decline to find that the inconvenience of testifying qualifies as unfair
prejudice. To the extent defendant is complaining about the number of depositions that
have been taken in this case, that is separate issue with which this court was not involved.
Presumably, defendant had an opportunity to raise any objections it had about depositions
in the multidistrict litigation court. In any event, defendant points to no rule that eliminates
a witness’s duty to testify at trial when the witness sits for multiple depositions.
In sum, the benefits of live testimony over deposition testimony are significant and
defendant has not identified a persuasive reason for denying plaintiff’s request. Accordingly,
I find that plaintiff has shown good cause and compelling circumstances for allowing remote
testimony in this case.
Rule 43 includes the additional requirement to provide “appropriate safeguards” when

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permitting remote testimony. According to the Advisory Committee Notes, “[s]afeguards
must be adopted that ensure accurate identification of the witness and that protect against
influence by persons present with the witness. Accurate transmission likewise must be
assured.” Neither party discusses this requirement, but I repeat the observations of another
court that granted a similar request:
The Court expects the testimony to be presented smoothly and without
interruption. In the event of a technological failure or glitch, [p]laintiff[] will
forfeit the opportunity to engage in the examination of th[ese] witness[es].
Both parties will provide any exhibits they plan to utilize to the witness[es] in
advance of his testimony. The parties shall take heed to limit the number of
documents to prevent any delays or confusion.
Rockett v. Stifel, Nicolaus & Co., No. 7:12-cv-144 HL, 2014 WL 5500546, at *1 (M.D. Ga.
Oct. 30, 2014).

In addition, I expect plaintiff to contact both the clerk’s office and

defendant to make arrangements so that plaintiff can test its equipment well in advance of
trial.

ORDER
IT IS ORDERED that plaintiff Katherine Hall’s “motion to permit live trial testimony
via contemporaneous transmission,” dkt. #39, is GRANTED. The clerk of court is directed

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to issue three blank subpoena forms to plaintiff.
Entered this 9th day of September, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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