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The U.S. District Court for the Western District of Pennsylvania recently denied an in limine motion to allow live video testimony in a jury trial. Plaintiffs requested permission for 11 witnesses to be able to testify by videoconference based on (1) the circumstances surrounding the COVID-19 pandemic and (2) their out-of-state residences. One of the witnesses was the plaintiffs’ economic expert, who the plaintiffs claim is immunocompromised.
This case arose out of events aboard Delta Air Lines Flight 1860 from Pittsburgh International Airport to Hartsfield-Jackson Atlanta International Airport. Before boarding, the defendant went to TGI Fridays located at the Pittsburgh airport, where he got drunk. The defendant passed out after boarding the flight and was seated next to the complainant JD – who was traveling on official government duty as an armed law enforcement officer. The accused awoke before the descent and assaulted the applicant. After landing, with the assistance of Delta employees and the Atlanta Police Department, the accused was arrested. The defendant pleaded guilty to the federal assault charges and the plaintiffs filed a civil action seeking damages.
Federal Rule of Civil Procedure 43(a) provides that
“[f]or for cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by simultaneous transmission from a different location”. (emphasis added). The court noted that in-person proceedings are strongly favored because, among other things, live testimony improves the investigator’s ability to assess the credibility of witnesses.
The court denied plaintiffs’ motion in limine with respect to non-expert witnesses, who reside in Georgia, Tennessee, South Carolina and Florida. The court noted that Rule 43(a) “does not contemplate inconvenience or distance as alone constituting good cause.” The court also flatly rejected the plaintiffs’ arguments regarding Covid-19. The court explained its view that “[t]he world, the country and the Court are not in the same situation as at the beginning of 2020, when video technology was first used in response to the pandemic. Citing the lifting of the state of emergency in Pennsylvania and the availability of vaccines, therapies and other treatments, the court said that “[m]Much, if not most, of society has returned to normal, coming to terms with the novel coronavirus becoming one of many viruses circulating in endemic cycles. The court concluded that “[t]there is no reason to assume that legal proceedings are any more dangerous than the rest of our reopened society.
The court allowed the plaintiffs to file an amended motion regarding the expert witness to provide details of his condition and his usual precautionary regimen. Noting that the court considers that the defendants have a “deemed right” to cross-examine the expert before the jury, the court explained that insofar as the plaintiffs can demonstrate that the immunocompromised state alleged by the expert is such that testifying in person would pose a “serious risk” that would be different from the conduct he normally engages in as part of his normal personal and professional routine, the court may find just cause and compelling circumstances justifying remote participation .
This case illustrates that as the circumstances of the Covid-19 pandemic evolve and courts relax their Covid-19 precautions, courts may be less willing to allow live testimony by Zoom or similar technology during trials and other evidentiary procedures.
JD, et al. v. Price, et al., 2022 US Dist. LEXIS 137916 (WD Pa. 3 Aug 2022).
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