Herzfeld & Rubin, P.C.- Publications

Products Liability *Demonstrations at Videotaped Depositions* By Michael Hoenig - New York Law Journal - June 11, 2007	Print article

Federal and state procedural rules generally allow depositions to be recorded on videotape.¹ The formalities and niceties may vary but the core essence is undeniable: if a litigant wants to get a videotaped deposition of a party or witness, procedural law offers smooth pathways.

Practice treatises geared for litigators often include the subject as a practical advice item.² We increasingly are a television-, video- and film-oriented society and, therefore, it is not surprising that the ubiquitous statement, "A picture is worth a thousand words," pervasively influences trial practice and use of demonstrative exhibits.

Although videotaped depositions are more common today, many practitioners resist the practice or are very selective in videotaping only certain witnesses. No doubt cost is a consideration. So are certain logistical questions such as complying with formal rules, supplying necessary equipment and sufficient copies, editing out unnecessary or objectionable subject matter, and arguing objections about admissibility. Moreover, since most practitioners want a printed transcript along with the video, many litigators question incurring the expense of both. And, then, there are those successful practitioners who have done quite well with traditional methods of discovery and for whom technical change is a needless complication.

The reader's preference, prejudice or custom likely will dominate decisionmaking. But what if one were told that there are dramatic, bold, practical, strategic purposes for taking certain video depositions particularly in products liability cases? What if those tactical objectives were readily identified, the rationales for the goals well-elaborated, and the available legal precedents conveniently categorized in one source? What if the potential advantages in given cases could be huge? Wouldn't it be worthwhile to take a fresh look at how litigators perhaps ought to be strategizing their business of depositions?

This column gives readers that opportunity. We do so by featuring a new, thoughtful article by Professor Robert A. Sachs of California Western School of Law, published in the Spring 2007 edition of the American Journal of Trial Advocacy.³ Now a full-time legal skills professor, Mr. Sachs was an accomplished trial lawyer in New Jersey with significant experience in products liability actions and videotaped depositions. In his excellent article called, "Getting a Witness to 'Walk the Line': Accident Demonstrations at Videotaped Discovery Depositions," Professor Sachs blends his litigation experience with academic scholarship. The result is a lucid, readable thought-provoker. Here we present a taste of Professor Sachs' observations but readers will want to read the article itself.

Demonstrations Valuable

The propositions are devilishly simple yet profound. Video depositions afford interrogating counsel an opportunity to videotape the witness giving accident demonstrations in certain types of cases, including many products liability scenarios. Such demonstrations are justified by sound rationales and are well within the broad scope of discovery. Although there is a paucity of reported appellate case law on this subject, there are practical reasons for this. And although there is some inconsistency in trial court decisions in some jurisdictions, there are case precedents upholding the requested demonstrations.

Finally, urges Professor Sachs, because this important avenue of disclosure has many merits, the matter should be clarified by procedural rule so that reluctant courts or those not yet deciding the issue will have an unambiguous court rule upon which to rely.

In appropriate cases, videotaping accident demonstrations can serve a number of important purposes. First, reenactments by a witness "can help parties better understand what occurred in a given action, especially where events cannot be described adequately by stenographic means alone."⁴ So, for example, in many cases, body angles and movements as well as angles and movements of products, such as hand-held power equipment, are difficult or even impossible to describe fully with only a verbal description. The "nuance of motion" can be described by a moving picture "better than the most precise and articulate witness could ever convey merely by means of the tongue."⁵

Second, a videotaped deposition demonstration can pin down the witness to a particular version of the accident in a way that cannot be accomplished with a mere verbal description. A reenactment will "enhance the 'recordation and memorialization process intended by discovery.'"⁶ Pinning down the witness reduces the concern that the witness will alter testimony at trial. If, in fact, he or she does so, then the video permits more effective impeachment.⁷

Third, a videotape of a demonstration is extremely helpful for development of expert opinions and testimony. The videotape allows the expert to understand an accident in more detail. It also provides a more complete basis or foundation for the expert to formulate opinions and, if desired, to recreate or reconstruct an accident. Since expert testimony must be "reliable" under the Frye and Daubert admissibility tests, an expert's full understanding of what happened enhances the reliability factor materially. Earlier, better knowledge by an expert as to what really occurred also lessens last-minute or at-trial changes of testimony by the expert. Imperfect verbal descriptions by a witness, on the other hand, are less informative than accurate visual portrayals and, therefore, could create ambiguities which encourage late changes in testimony by the deponent as well as the expert.⁸Videotaped demonstrations, which can be more accurate than vague oral descriptions, likely would better deter last-minute flip-flops in trial testimony with all the tensions and confusion such surprises bring.

Hypothetical Scenario

In products liability design litigation, where the claimant needs to demonstrate a "reasonable alternative design," a videotaped demonstration can be crucial in determining whether the proposed alternative design would have reduced or avoided the harm sustained. Professor Sachs, drawing on his experience as a litigator in nail-gun products liability cases, for example, describes a scenario where plaintiff and coworkers are using nail guns near one another. Plaintiff is not wearing his safety glasses and sustains an eye injury. He claims the nail gun "double-fired," discharging an unwanted second nail that ricocheted. Plaintiff's expert claims defective design and proposes an alternative design that would prevent double-firing. However, if the nail that struck plaintiff's eye actually came from a coworker's nail gun, then the proposed alternative clearly would be unrelated to plaintiff's injury.

In determining the source of the accident nail, the precise manner in which plaintiff was holding the nail gun, his body angle, the angle of the nail gun, and the position of the object plaintiff was nailing are critical facts. Mere verbal descriptions of such facts, likely to be vague and merely recorded in a print transcript, cannot possibly match the probity of precise physical demonstrations captured on videotape. Other critical facts such as the positions, body angles and angles of the nail guns of other workers in the immediate area, what they were doing and the positions of the materials they were nailing, also are potential subjects for videotaped discovery demonstrations. Such visual portrayals better permit the expert to discover the necessary facts to form an opinion on causation as well as other issues.⁹

The nail-gun hypothetical and other hand-held equipment cases are not the only candidates for enhanced factual discovery via reenactment demonstrations. Thus, for example, courts have permitted videotaped demonstrations at discovery depositions dealing with use of a variety of machines: how a plaintiff approached or operated a steel press, a radial arm saw, a meat slicer, a lawnmower and automobile seat belts.¹⁰ Moreover, deposition portrayals captured on tape can help with respect to providing context for experts' tests, experiments and trial demonstrations. A pivotal question in battles over such demonstrative evidence is whether the experiment was conducted under conditions similar to those actually existing in the case. A videotaped showing by plaintiff of what actually happened can help support (or oppose) a given expert's experiment. Conversely, a court's refusal to allow the deposition portrayal could make it difficult to render a proper test or reenactment by the expert.¹¹ The search for the truth would be a casualty.

Fourth, when full understanding of an accident and the claims being made are enhanced by effective use of discovery, a party can evaluate a case more accurately and prepare properly not only for trial but for settlement. As Professor Sachs puts it, "[w]hen the uncertainty of what, in fact, occurred at the time of an accident is reduced, all parties are able to look at the events more realistically and assess liability with greater consistency."¹²

Since encouragement of settlement is an important policy objective, discovery practices that encourage realistic evaluations that facilitate and lead to better informed settlement decisions are desirable goals. Notably, requests for videotaped deposition demonstrations can be made not only of plaintiffs. Such portrayals also may be demanded from defendants, non-party witnesses or experts. Thus, the strategic considerations are relevant to both sides.

Case Law

Despite the obvious benefits, Professor Sachs notes a paucity of reported appellate decisions on the topic. He suggests that rulings on discovery are rarely subject to appellate review because they are interlocutory, highly discretionary and almost always moot by the time they would reach the appellate level. He also notes some aversion to the potential for discovery abuse when discovery is criticized as overly broad. But denial of visual demonstrations as a means of narrowing discovery may be unduly restrictive.

Pertinent case law, surprisingly sparse given the huge volume of depositions across the country, receives considerable attention in Professor Sachs' article.

In Emerson Electric Co. v. Superior Court,¹³ the California Supreme Court discussed enforcement of discovery rights if a deponent "fails to answer any question." Plaintiff was asked at a videotaped deposition to reenact what he was doing during the radial arm saw accident and to draw a diagram showing the location of his saw and his position when the accident occurred. Plaintiff refused saying that nonverbal responses were not required. This prompted a motion to preclude plaintiff from doing a reenactment of the accident and for other relief.

The California High Court said that the word "answer" in the rule includes nonverbal as well as verbal responses at a videotaped deposition and that this construction serves the purposes of discovery statutes: "to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial."¹⁴

In Carson v. Burlington Northern, Inc.,¹⁵ the court permitted a videotaped deposition of the plaintiff in the blacksmith shop of the defendant railroad at the diesel yards where the accident occurred and to demonstrate how he operated a steel press. Remarkably, this was a decision issued in 1971. The court noted that the fact finder "often will gain greater insight from the manner in which an answer is delivered and recorded by audio-video devices." In Roberts v. Homelight Division of Textron, Inc.,¹⁶ the court permitted a video deposition of the plaintiff and plaintiff's assistant at the place where the lawnmower accident occurred. The video reenactment "will assist the parties in a better understanding of what happened . . . ." Additionally, four U.S. District Court for the Eastern District of Pennsylvania decisions permitted videotaped accident demonstrations under different conditions in litigations involving a large vertical cutting machine, a meat slicer, a radial arm saw and automobile seat belts.¹⁷

In repetitive stress injury litigation where plaintiffs claimed that betting ticket machinery keyboards caused their harm, the federal court in Brown v. General Instrument Corp.,¹⁸ granted defendant's motion to require plaintiffs to demonstrate on videotape their hand and arm motions and to show where they suffer pain. The court deemed the information "unquestionably relevant." Professor Sachs also elaborates state case law which goes both ways.¹⁹ For example, Pennsylvania trial courts refused to order videotaped reenactments in a case involving a radial arm saw and one involving an automated cart. However, appellate courts in Florida and California allowed video reenactments. The article also discusses a "solution" for the nonuniformity in approach and the seeming uncertainty whether a court will allow the reenactment - a rule clarification that would allow physical demonstrations along with safeguards and a provision for payment of costs of the demonstration by the party requesting the demonstration.

Conclusion

Although the concept of obtaining and using videotaped deposition demonstrations is not new, the availability and accessibility of video recordings warrants that counsel reconsider the potential advantages. Professor Sachs has provided a convenient starting point for upgrading counsel's strategic considerations and the quality of deposition practice.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnote:
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1. FedRCivP 30(b)(2); E.g., N.Y. CPLR 3113(b); 22 NYCRR 202.15.

2. See e.g., E.L. Birnbaum, C.T. Grasso and Hon. A.E. Belen, "New York Trial Notebook, §23.42," pp. 23-8 to 23-9 (Video Depositions); §27:02, p. 27-3 (Objection to Videotaped Testimony) (James Publishing Inc. December 2006 rev.).

3. R.A. Sachs, "Getting a Witness to 'Walk the Line': Accident Demonstrations at Videotaped Discovery Depositions," 30 Am. J. of Trial Advocacy, No. 3, pp. 487-538 (Spring 2007) (hereinafter cited as Demonstrations).

4. Sachs, Demonstrations, 30 Am. J. of Trial Advocacy at 496 (quoting Gillen v. Nissan Motor Corp. in USA, 156 FRD 120, 122 (ED Pa. 1994) (warranty and "lemon law" claim in which the court compelled plaintiff to demonstrate an alleged seat belt problem at a videotaped deposition).

5. Demonstrations, Id. at 497 (quoting Moncrief v. Fecken-Kipfel America, Inc., 1988 WL 68088 (EDPa June 22, 1998).
6. Kiraly v. Berkel, Inc., 122 FRD 186, 187 (EDPa 1988) (permitted videotaped reenactment in meat slicer accident claim).
7. Demonstrations, 30 Am. J. of Trial Advocacy, at 498.
8. Demonstrations, Id. at 499-500.
9. Demonstrations, Id. at 501-502.
10. See cases cited in Demonstrations, Id. at 502 n. 59.
11. Demonstrations, Id. at 502-503.
12. Demonstrations, Id. at 504.
13. 946 P.2d 841 (Cal. Sup. Ct. 1997).
14. Id. at 844. See Demonstrations, 30 Am. J. of Trial Advocacy, at 525-527 for a discussion of the Emerson case.
15. 52 FRD 492 (D. Neb. 1971).
16. 109 FRD 664 (N.D. Ind. 1986).

17. Moncrief v. Fecken-Kipfel America, Inc., 1988 WL 68088 (ED Pa. June 22, 1988); Kiraly v. Berkel, Inc., 122 FRD 186 (ED Pa. 1988); Carotenuto v. Emerson Electric Co., 1990 WL 198820 (EDPa Dec. 3, 1990); Gillen v. Nissan Motor Corp. in USA, 156 FRD 120 (EDPa 1994).

18. 1995 WL 15514 (SDNY Jan. 17, 1995).
19. See Demonstrations, at 522-528.