The U.S. District Court for the Western District of Pennsylvania recently denied a motion in limine seeking to permit live testimony by video at a jury trial. The plaintiffs requested permission for 11 witnesses to be able to testify by videoconferencing based on (1) circumstances surrounding the COVID-19 pandemic, and (2) their out-of-state residences. One of the witnesses was plaintiffs' economic expert, who plaintiffs asserted is immunocompromised.
This case arose out of events taking place onboard Delta Air Lines Flight 1860 from Pittsburgh International Airport to Hartsfield-Jackson Atlanta International Airport. Prior to boarding, the individual defendant visited the TGI Fridays located in the Pittsburgh airport, where he became intoxicated. Defendant passed out after getting on the flight and was seated next to plaintiff J.D. – who was traveling on official government duty in her capacity as an armed law enforcement officer. Defendant woke up before descent and assaulted plaintiff. After landing, with help from Delta employees and the Atlanta Police Department, defendant was arrested. Defendant pleaded guilty to federal assault charges and plaintiffs commenced a civil action seeking to recover damages.
Federal Rule of Civil Procedure 43(a) provides that “[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” (emphasis added). The court noted that in-person proceedings are strongly favored because, inter alia, live testimony enhances the fact finder's ability to assess the credibility of witnesses.
The court denied the plaintiffs' motion in limine with regard to the non-expert witnesses, who are residents of 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 plaintiffs' Covid-19 arguments. The court explained its view that “[t]he world, the country, and the Court are not in the same position as in early 2020 when video technology first came into use in response to the pandemic.” Citing to the lifting of the state of emergency in Pennsylvania and the availability of vaccines, therapeutics, and other treatments, the court stated that “[m]uch, if not most, of society has returned to normal, reconciling itself to the fact that the novel coronavirus has become one of the many viruses that circulate in endemic cycles.” The court concluded that “[t]here is no reason to presume that court proceedings are more hazardous than the rest of our re-opened society.”
The court allowed the plaintiffs to file an amended motion concerning the expert witness to offer details about his condition and regular regimen of precautions. Emphasizing that the court believes that the defendants have a “presumptive right” to cross-examine the expert in front of the jury, the court explained that to the extent that plaintiffs can demonstrate that the expert's asserted immunocompromised condition is such that testifying in-person would pose a “grave risk” which would be different than the conduct that he normally engages in as part of his regular personal and professional routine, the court may find good cause and compelling circumstances justifying remote participation.
This case illustrates that with the circumstances of the Covid-19 pandemic changing, and courts relaxing their Covid-19 precautions, courts may be less willing to allow live testimony by Zoom or similar technology at trials and other evidentiary proceedings.
J.D., et al. v. Price, et al., 2022 U.S. Dist. LEXIS 137916 (W.D. Pa. Aug. 3, 2022).
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