HomeMy WebLinkAbout99-04804?.
.?
,.
-
...
t,r
.:J.??.
?? ,, d
?
:'f
`.
k.j?
',f
t€
1
'
?.
?'?
MARGIE ]. FISH and GENE H.
FISH, ]R.,
Plaintiffs
v
SHANA LYNNE VACULA,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:NO. 99- y" CIVIL
IN CUSTODY
COURT ORDER
AND NOW, this 1\ day of 1999, upon consideration of the attached
custody stipulation, it is ordered and directed as follows:
1. The maternal Grandparents, Gene H. Fish, ]r. and Margie). Fish, shall
enjoy primary legal and physical custody of the minor child ]enna Lynne
Vacula, born January 7, 1998.
2. The natural Mother, Shana L. Vacula, shall enjoy periods of temporary
physical custody with the minor child as such times as agreed upon by the
parties.
BY THE COURT,
cc: Hubert X. Gilroy, Esq. - c`d'd 'S-ec 3/1
..., ?
. , ,,
r; :..
MARGIE ]. FISH and GENE H. : IN THE COURT OF COMMON PLEAS OF
FISH, JR., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v : NO. 99- ""?dY CIVIL
SHANA LYNNE VACULA,
Defendant : IN CUSTODY
STIPULATION
The parties to the above captioned action stipulate and agree as follows:
Defendant Shana L. Vacula is the natural mother of ]enna Lynne Vacula, born January 7,
1998.
2
The natural father of the minor child is John Frank Zuckowich. The whereabouts of Mr.
Zuckowich are unknown and Mr. Zuckowich has not had any contact with the minor child
since the child's birth.
3
The Plaintiffs are the maternal grandparents of the minor child and the Plaintiffs have been
the primary caretakers of the child since the minor child's birth.
4
The parties reside in Cumberland County and have resided in Cumberland County for at
least 6 months prior to the filing of this stipulation.
5
The parties agree that the attached custody order can be entered of record.
Witness
Date:
Date:
Dat
fi
„J
2
5
r
w?
r
?o
BARBARA WAGNER and IN THE COURT OF COMMON PLEAS OF
DANIEL WAGNER, her husband, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
99.4784 CIVIL
VS.
WILLIAM F. CARR, M.D.,
CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC., AND HOLY SPIRIT
HOSPITAL,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
IN RE: MOTION FOR PROTECTIVE ORDER TO PROHIBIT VIDEOTAPE DEPOSITION
ORDER
AND NOW, this ?/ " day of July, 2001, a rule is issued on the plaintiffs to show
cause why the relief requested in the within motion for protective order ought not to be granted.
This rule returnable fifteen (15) days after service.
BY THE COURT,
Kev' A. Hess, J.
65 %, ??
G1 A"r - i :?, 125
PENNSYLVANIA
4
BY: ANDREW BRIGGS
I.D. # 53072
240 GRANDVIEW AVENUE
CAMP HILL, PA 17011
(717) 731-1970
BARBARA WAGNER and
DANIEL WAGNER, her husband,
Plaintiffs
V.
WILLIAM F. CARR, M.D.,
CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC., AND HOLY SPIRIT
HOSPITAL,
Defendants
WILLIAM F. CARR, M.D. AND
CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY, INC.
IN THE COURT OF COMMON
PLEAS
OF CUMBERLAND COUNTY -
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-4784
JURY TRIAL DEMANDED
ORDER
AND NOW, this of 2001, upon consideration of
Defendant William F. Carr, M.D.'s Motion for Protective Order to Prohibit the Videotape Deposition
of William F. Carr, M.D., and any response thereto, it is hereby ORDERED and DECREED that a
Protective Order striking the Amended Notice of Video Deposition is GRANTED, and the oral
deposition of Dr. Carr shall proceed on the date and time set forth in the Amended Notice of
Deposition dated June 21, 2001.
BY THE COURT:
J.
POST & SCHELL, P.C.
BY: ANDREW H. BRIGGS
I.D. #53072
BY: JOHN R. CANAVAN
I.D. #84728
240 GRANDVIEW AVENUE
CAMP HILL, PA 17011
(717) 731-1970
BARBARA WAGNER and
DANIEL WAGNER, her husband,
Plaintiffs
V.
WILLIAM F. CARR, M.D.,
CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC., AND HOLY SPIRIT
HOSPITAL,
Defendants
ATTORNEYS FOR DEFENDANTS
WILLIAM F. CARR, M.D. AND
CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY, INC.
IN THE COURT OF COMMON
PLEAS
OF CUMBERLAND COUNTY -
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-4784
JURY TRIAL DEMANDED
MOTION FOR PROTECTIVE ORDER TO PROHIBIT THE
VIDEOTAPE DEPOSITION OF WILLIAM F CARR M.D.
Defendant William F. Carr, M.D. ("Dr. Carr" or "Movant" ), by and through his undersigned
counsel, Post & Schell, P.C., files the following Motion for Protective Order to Prohibit his
Videotape Deposition, as follows:
On or about August 9, 1999, Plaintiffs filed an Amended Complaint alleging
negligence, gross negligence and reckless indifference against Dr. Carr, among other defendants, for
injuries allegedly sustained during a laparoscopy performed by Dr. Carr.
2. Pleadings have closed and discovery is ongoing in this litigation.
3. On or about November 16, 2000, Plaintiffs served a Notice of Deposition on Dr. Can,
with the deposition scheduled for March 16, 2001; there was no mention of videotaping the
deposition. A true and correct copy of the Notice of Deposition is attached hereto as Exhibit "A."
4. Plaintiff canceled the deposition noticed in Exhibit "A" on the day the deposition was
scheduled to occur.
5. On or about April 26, 2001, Plaintiffs served an Amended Notice of Video
Deposition on Dr. Can, with the deposition scheduled for August 8, 2001. A true and correct copy
of the correspondence and Amended Notice of Video Deposition is attached hereto as Exhibit "B."
6. On or about May 10, 2001, counsel for Dr. Carr notified counsel for Plaintiffs that
he was unavailable on August 8, 2001, and that he would not allow Dr. Can's deposition to be
videotaped. A true and correct copy of the correspondence from counsel for Dr. Can is attached
hereto as Exhibit "C."
7. On or about June 21, 2001 Plaintiffs served an Amended Notice of Video Deposition
scheduling Dr. Carr's deposition for October 4, 2001. A true and correct copy of the correspondence
and Amended Notice of Video Deposition is attached hereto as Exhibit "D." It is from this Notice
of Video Deposition, and all those subsequent, that Movant seeks a protective order.
8. Plaintiffs Notice seeks to take the deposition for the purpose of discovery or for use
at trial.
9. There are no circumstances in this case, such as the deponent being in poor health or
unable to attend trial, which would warrant or require a videotape deposition.
10. Although a search of Pennsylvania appellate case law has not revealed any cases on
this issue, Movant asserts that Pennsylvania Rule of Civil Procedure 4017.1 does not authorize a
2
party to videotape a deposition for purposes of discovery or for use at trial, if that party is available
for trial.
11. The case of Tillett v. Shento, 131 Pitts.Leg.J. 297 (1982), a decision by Judge Wettick
in the Court of Common Pleas of Allegheny County, is directly on point and most instructive. A
true and correct copy of the Tillett opinion is attached hereto as Exhibit "E."
12. While Pennsylvania Rule of Civil Procedure 4017.1(a) permits an oral deposition to
be recorded by videotape, it is "subject to the restrictions of Pa.R.C.P. 4011 which precludes
discovery that would cause unreasonable annoyance, burden or expense." Tillett, supra.
13. The "obvious purpose of Rule 4017.1(a) is to authorize a videotape deposition" in
situations such as when a witness is ill or may be leaving the jurisdiction. a at 298.
14. Movant agrees with the following reasoning stated by Judge Wettick in Tillett: "At
no time has it been the practice in this Commonwealth to record oral depositions by videotape as a
matter of course." Further, "in the absence of a showing of special need to record an oral deposition
by videotape, we hold that the videotaping of a deposition for discovery purposes only will cause
unreasonable annoyance, burden and expense." U (emphasis added).
15. Plaintiffs have not shown a special need to record the oral deposition of Dr. Carr by
videotape, therefore, "the videotaping of the deposition for discovery purposes will only cause
unreasonable annoyance, burden and expense." age A Further, any possible marginal benefits to
be gained from permitting the videotaping of the oral deposition is far outweighed by the increased
expenses and trauma that would result from the unfettered use of such discovery. S,gg U
16. Judge Wettick affirmed the rationale of it t in a subsequent decision involving a
videotaped reenactment of an event which injured plaintiff. In disallowing the videotaping, Judge
Wettick recognized the potential difficulties in the use of videotape and reasoned, "it is likely that
the film will receive an inordinate amount of attention at trial because of the seductive appeal of
visuals on a jury in this television oriented society." Osborne v Sears Ro b Eck and o 41
mt2s-J v .., D&C3d 64 (Allegheny Cty. 1985), a true and correct copy of which is attached hereto as Exhibit T."
17. Case law from this jurisdiction, which deals with reenactment of an accident and not
solely videotaping a deposition, agrees with the opinion of Judge Wettick in
Osborne regarding the
hazards of videotape. Soraalin v. MHK Associate , 29 D&C4th 187 (Cumb. Cty. 1993) (opinion
by Judge Hess), a true and correct copy of which is attached hereto as Exhibit "G."
18. In an unreported order in another case regarding this very issue in this jurisdiction,
Judge Oler denied plaintiffs' request to conduct a videotape deposition of a physician in a medical
malpractice case stating, "there were no special circumstances militating in favor of videotaping."
A true and correct copy of Judge Oler's Order from Stermer v Wenner et. I , Cumberland County
Court of Common Pleas, docket no. 97-3740, is attached hereto as Exhibit "H."
19. The videotaping of Dr. Carr's deposition is further prohibited by Pa.R.C.P. 4017.1(g),
which states in pertinent part, "a videotape deposition of a medical witness or any witness called as
an expert, other than a party, may be used at trial for any purpose whether or not the witness is
available to testify." Pa.R.C.P. 4017.1(g) (emphasis added).
20. Dr. Carr fully intends to testify personally at the trial in this matter; he is not in ill-
health and has no plans to move from or leave the jurisdiction for an extended time, therefore,
Plaintiffs will have the ability to test his credibility or demonstrate his demeanor to the jury at trial.
4
21. Videotaping Dr. Carr's discovery deposition would cause unreasonable annoyance,
embarrassment and oppression and could prejudice Dr. Carr if thejury is shown clips of the tape out
of context.
22. Accordingly, Plaintiffs request for a videotape deposition is in violation of
Pennsylvania Rule of Civil Procedure 4011.
23. The deposition of Dr. Carr should be stayed during the pendency of this Motion for
Protective Order as Dr. Carr will be irreparably harmed, for the reasons set forth herein, if the
videotape deposition is allowed to proceed.
WHEREFORE, Defendant William F. Carr, M.D., respectfully requests that this Honorable
Court enter an Order in the proposed form granting the Motion for Protective Order prohibiting the
videotaping of Dr. Carr's deposition.
DATE: -i l Dd 01
Respectfully submitted,
POST & SQHELI/,,/P.C.
ANDnf W H. BRIGGS, ESQ. u
Attom y for Defendants William F.
Carr, M.D. and Central Pennsylvania
Obstetrics-Gynecology, Inc.
5
VERIFI ATION
1, ANDREW H. BRIGGS, ESQUIRE, hereby state that I am the attorney for Defendant
William F. Carr, M.D., in this action and that I am authorized to take this Verification on his behalf,
and I verify that the statements made in the foregoing Motion for Protective Order are true and
correct to the best of my knowledge, information, and belief. The undersigned understands that the
statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom
falsification to authorities.
DATE: -?/ZS-/DI
6
Exhibit A
I
R.J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110 Attorneys for Plaintiffs.
Telephone: (717) 234.7828 Barbara Wagner and Daniel Wagner
Facsimile
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BARBARA LVAGNER and DOCKET NO. 99 - 4784 CIVIL
DANIEL WAGNER, her husband,
Plaintiffs
V.
WILLIAM F. CARR, M.D.,
OBSTETRICS-GYNECOLOGY, INC.;
CENTRAL PENNSYLVANIA
OBSTETRICS-GYN ECOLOGY,
INC., and HOLY SPIRIT
HOSPITAL,
Defendants JURY TRIAL DEMANDED
DEPOSITION NOTICE FOR WILLIAM F. CARR, M.D.
TO: WILLIAM F. CARR, M.D.
coo Evan Black, Esquire
Post & Shell
240 Grandview Avenue
Camp Hill, PA 17011
PLEASE TAKE NOTICE, that pursuant to Pa.R.C.P. 4007.1, Plaintiffs in the above-
captioned matter will take the deposition of William Carr, M.D. on oral examination, for
the purpose of discovery or for use at trial, or for both purposes, before a person
authorized to render an oath, at the Post & Shell located at 240 Grandview Avenue,
Camp Hill, Pennsylvania, beginning at 10:30 a.m., on Friday, March 16, 2001, on all
matters not privileged which are relevant and material to the issues and subject matter
involved in the above-captioned action. The above-named individual is requested to
NOV 2 0 2000
appear at the aforesaid time at the above address and submit to examination under oath
until excused.
Please bring with you the following:
Any original medical records pertaining to Barbara Wagner; and
2. Any written or other documents, including but not limited to, all
calendars, diaries, chronologies, notes, memoranda or other documents pertaining to
the care and treatment rendered to Barbara Wagner upon which you have relied.
R. J,Marzella &Asociate$, p.c.
Dated: November 16, 2000
Attorney for NAM,
Dan and Barbara Wagner
CC: Apex Reporting Service
I, Robin J. Marzella, HEREBY CERTIFY that a true and correct copy of the
foregoing Deposition Notice was served upon counsel of record this ?-
day of ?y/16?1%L'G 2000, by depositing said copy in the United
States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Craig A. Stone, Esquire
METTE, EVANS & WOODSIDE
3401 North Front Street
Post Office Box 5950
Harrisburg, PA 17110-0950
Counsel for Defendant, Holy Spirit Hospital
G. Thomas Miller, Esquire
MILLER and MILLER
113 Locust Street
Harrisburg, PA 17101
Counsel for Defendant, William F. Carr, M.D.
Evan Black, Esquire
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
Counsel for Defendants, William F. Carr, M.D., Obstetrics-Gynecology, Inc.
and Central Pennsylvania Obstetrics-Gynecology, Inc.
R.J. Marzella & Associates, P.C.
i
B: A
Rob arzell
Exhibit B
.AIRZELLA
srnssocIATI
Attorneys & Counselors At Law
April 26, 2001
Andrew Briggs, Esquire
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
uu?y/tss vrvJ?-
3513 NoRTII FRONT STREET, HARRISBURG, PENNSYLVANIA 17110
717.234.7828 888.838.3426 717.234.6883 FAx
Re: Barbara Wagner, et ux, v. William F. Carr, M.D., et al.
Cumberland County C.C.P. No. 99-4784 Civil
Dear Andy:
Enclosed please find the Amended Deposition Notice of William F. Carr, M.D.,
scheduled for Wednesday, August 8, 2001 at 10:00 a.m,
Thank you for your attention to this matter.
Very truly yours,
RJM/lbs
Enclosure
Cc: Craig A Stone, Esquire (w/enclosure)
G. Thomas Miller, Esquire (w/enclosure)
Apex Reporting Service (w/enclosure)
C' -TF-
R. J. MARZELLA & ASSOCIATES, P.C.
BY. Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110 Attorneys for Plaintiffs,
Telephone: (717) 234-7828 Barbara Wagner and Daniel Wagner
Fa c c i m ice: 17171 2 34-h R R 3
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BARBARA WAGNER and DOCKET NO. 99 - 4784 CIVIL
DANIEL WAGNER, her husband,
Plaintiffs
V.
WILLIAM F. CARR, M.D,,
OBSTETRICS-GYNECOLOGY, INC.;
CENTRAL PENNSYLVANIA
O BSTETRI CS-GYN ECOLOGY,
INC., and HOLY SPIRIT
HOSPITAL,
Defendants : JURY TRIAL DEMANDED
AMENDED VIDEOTAPE DEPOSITION NOTICE
OF WILLIAM F. CARR, M.D.
TO: WILLIAM F. CARR, M.D.
coo Andrew H. Briggs, Esquire
Post & Shell
240 Grandview Avenue
Camp Hill, PA 17011
PLEASE BE ADVISED that, pursuant to Pennsylvania Rule of Civil Procedure
4017.1, Robin J. Marzella, Esquire, counsel for the Plaintiff, will take the videotaped
deposition of the Plaintiff, Defendant, William F. Carr, M.D. for the purpose of discovery
and for use at trial August 8, 2001 beginning at 10:00 a.m. at the Law Offices of Post &
Schell, P.C. located at 240 Grandview Avenue, Camp Hill, Pennsylvania 17011 on all
matters not privileged which are relevant and material to the issues and subject matter
involved in the above-captioned action. The above-named individual is requested to
appear at the aforesaid time at the above address and submit to examination under oath
until excused.
Please bring with you the following:
Any original medical records pertaining to Barbara Wagner; and
2. Any written or other documents, including but not limited to, all
calendars, diaries, chronologies, notes, memoranda or other documents pertaining to
the care and treatment rendered to Barbara Wagner upon which you have relied.
The deposition will be conducted before a person authorized to render an oath.
The deponent's sworn testimony will be videotaped by Video Imaging located at 3004
Black Oak Drive, Red Lion, Pennsylvania 17356 and will be simultaneously recorded by
stenographic means by Certified Court Reporter provided by Sharon L. Dougherty, RPR
of Apex Reporting Services.
Respectfully submitted,
R.J. Marzella & Associates.-P.C.
Supreme C uu I.D. # 66856
3513 North Front Street
Harrisburg, PA 17110
(717) 234-7828
Attorney for Plaintiffs,
Dan and Barbara Wagner
Dated: April 30, 2001
,., y ,..,., _ ,
I, Robin J. Marzella, hereby certify that a true and correct copy of the foregoing
Amended Videotape Deposition Notice of William F. Carr, M.D. was served upon counsel
of record this4 day of April, 2001, by depositing said copy in the United States
Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as
follows:
Craig A. Stone, Esquire
METTE, EVANS & WOODSIDE
3401 North Front Street
Post Office Box 5950
Harrisburg, PA 17110.0950
Counsel for Defendant, Holy Spirit Hospital
G. Thomas Miller, Esquire
MILLER and MILLER
113 Locust Street
Harrisburg, PA 17101
Counsel for Defendant, William F. Carr, M.D.
Andrew Briggs, Esquire
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
Counsel for Defendants, William F. Carr, M.D., Obstetrics-Gynecology, Inc.
and Central Pennsylvania Obstetrics-Gynecology, Inc.
Exhibit C
POST & SCHELL, P.C.
ATTORNEYS AT LAW
240 GRANDVIEW AVENUE
CAMP HILL, PA 1 701 1
(717) 731-1970
FAC5IMILE: (717) 731.1985
1800 JOHN F. KENNEDY BLVD. CHO / DOMINION TOWER 1057 WILLIAM PENN WAY
PHILADELPHM. PA 101009400 625 LIBERTY AVE - Sun 2000 PO BOX 10240
1215, 507. 1000 PITTSBURGH. PA 15222.31 10 LANCASTER. PA 1 78050240
FAX: 12151 587.1444 141 2) 577-2072 (71 7) 201 4532
FAX: (4121577.2073 FAX: 1717) 201.1600
1 245 5. CEDAR CREST
BOULEVARD
SURE 300
ALLENTOWN, PA 18 103
(0101433 01 03
FAX, (610) 4333072
ADAMS PLACE - SURE J
701 WHITE HORSE ROAD
VOORHEES. NJ 06043
18 561 62 78 000
FA%. (650) 027445 1
May 10, 2001
Robin J. Marzella, Esquire
3513 North Front Street
Harrisburg, PA 17110
RE: Wagner v. Carr, M.D.
Dear Robin:
I am in receipt of your Notice of Deposition for Dr. Carr for August 8, 2001.
ANDREW H. 6RIGG5
(717) 612-6051
A6wiaoiOPwrSCw[u.co,.
FILE NO. 8 54 1 4/0079
If my office has not already advised, I will be out of the country on vacation on August 8,
2001. Moreover, I will not agree to the videotaped Deposition of Dr. Carr.
We will provide you with new dates for a regular discovery Deposition for Dr. Carr, unless
you indicate that you will insist on a videotaped Deposition. If that is the case, please let me know.
Thank you for your professional courtesy in this matter.
Very truly yours,
ANDREW H. BRIGGS
AHB/aml
Exhibit D
Rr ARZELLA
L
nsscxanrr5
Attorneys & Counselors At Law
June 21, 2001
Andrew Briggs, Esquire
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
3513 NoRm FRONT STREET, HARRISBURG, PENNSYLVANIA 17110
717.234.7828 888.838.3426 717.234.6883 FAX
Re: Barbara Wagner, et ux. v. William F. Carr, M.D., et al.
Cumberland County C.C.P. No. 99-4784 Civil
Dear Andy:
Enclosed please find the Amended Notice of Video Deposition of William F.
Carr, M.D., scheduled for Thursday, October 4, 2001 at 10:00 a.m. to be held in your
office.
Thank you for your attention to this matter.
Very truly yours,
RJM/Ibs
Enclosure
Cc: Craig A Stone, Esquire (w/enclosure)
G. Thomas Miller, Esquire (w/enclosure)
Apex Reporting Service (w/enclosure)
Video Images (w/enclosure)
7sa?y?oo?a1 ?F
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110 Attorneys for Plaintiffs,
Telephone (717) 234-7828 Barbara Wagner and Daniel Wagner
F?slimily;__17171234-G$$$-----._-_ -_---
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BARBARA WAGNER and DOCKET N0. 99 - 4784 CIVIL
DANIEL. WAGNER, her husband,
Plaintiffs
V.
WILLIAM F. CARR, M.D.,
OBSTETRICS-GYNECOLOGY, INC.;
CENTRAL PENNSYLVANIA
O BSTETR I CS-GYN ECOLOGY,
INC., and HOLY SPIRIT
HOSPITAL,
Defendants JURY TRIAL DEMANDED
AMENDED NOTICE OF VIDEO
DEPOSITION OF WILLIAM F. CARR, M.D.
TO: WILLIAM F. CARR, M.D.
coo Andrew Briggs, Esquire
Post & Shell
240 Grandview Avenue
Camp Hill, PA 17011
PLEASE TAKE NOTICE, that pursuant to Pa.R.C.P. 4007. 1, Plaintiffs in the above-
captioned matter will take the video deposition of William Carr, M.D. on oral
examination, for the purpose of discovery or for Use at trial, or for both purposes, before
a person authorized to render an oath, at the Law onices of Post & Shell located at 240
Grandview Avenue, Cramp Hill, PA, beginning at 10:00 a.m., on Thursday, October 4,
2001, on all matters not privileged which are relevant and material to the issues and
buoJecr maaer mvowea it, the above-captioned action. The above-named individual is
requested to appear at the aforesaid time at the above address and submit to
examination under oath until excused.
Please bring with you the following:
Any original medical records pertaining to Barbara Wagner; and
2. Any written or other documents, including but not limited to, all
calendars, diaries, chronologies, notes, memoranda or other documents pertaining to
the care and treatment rendered to Barbara Wagner upon which you have relied,
Respectfully submitted,
R. J ,MarzeN & Associates, P
Supreme Court 1,6. # 66856
3513 North Front Street
Harrisburg, PA 17110
(717) 234-7828
Attorneys for Plaintiffs, Barbara Wagner
And Dan Wagner
Dated: June 21, 2001
I, Robin J. Marzella, hereby certify that a true and correct copy of the foregoing
Amended Notice of Video Deposition of William F. Carr, M.D. was served upon counsel
of record this Ga day of June, 2001, by depositing said copy in the United States
Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as
follows:
Craig A. Stone, Esquire
METTE, EVANS & WOODSIDE
3401 North Front Street
Post Office Box 5950
Harrisburg, PA 17110-0950
Counsel far Defendant, Holy Spirit Hospital
G. Thomas Miller, Esquire
MILLER and MILLER
113 Locust Street
Harrisburg, PA 17101
Counsel for Defendant, William F. Carr, M.D.
Andrew Briggs, Esquire
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
Counsel for Defendants, William F. Carr, M.D., Obstetrics-Gynecology, Inc.
and Central Pennsylvania Obstetrics-Gynecology, Inc.
r4
44
-??
1!?
Exhibit E
297 (1983)) PITTSBURGH LEGAL JOURNAL 297
Tillett v Shento
Discovery Videotape ncposilion.
4017.1(x), which permits oral depositions to be recorded on videotape, does not authorize
party to tape deposition by videotape solely for purposes of discovery, and protective order would
he entered to prohibit same. (Frederick N. Egler, ?r.)
Glenn Douglas Delft for plaintiff.
Frank ht. Gianola for defendant.
No. GO 81.29910. In the Court of Common Pleas of Allegheny County, Civil Divi.
sion.
OPINION AND ORDER OF COURT
WMTICx, J., September 14, 1982.-Plaintiff served upon defendant a notice to take
defendant's oral deposition by videotape. Plaintiff seeks to take this deposition solely
for the purpose of discovery. Defendant Is a resident of Allegheny County, and he is
neither aged nor in ill health. Thus, there is no reason to anticipate that defendant will :I
not be present at trial. The subject of this opinion and order of court is defendant's
motion to prohibit plaintiff from taking his deposition by videotape.-
Initially, we consider defendant's contention that a party may not take a deposition
by vidoelape solely for the purpose of discovery. Defendant relies on Pa.R.C.P. 4001(d)
hi
h y
w
c
enumerates the methods of discovery:
"(d) Subject to the provisions of this chapter, any party may obtain discovery by
one or more of the following methods: depositions upon oral examination (Rule a
4007.1) or written interrogatories (Rule 4004); written interrogatories to a party
(Rule 4005); production of documents and things and entry for inspection and other rr
purposes (Rule 4009); physical and mental examinations (Rule 4010); and requests
for admission (Rule 4014)." C
Because a videotape deposition is not one of this Rule's enumerated methods, defendant a
contends that a videotape deposition may not he taken for the purpose of discovery.
We reject this contention. Obviously, plaintiff may take defendant's oral deposition
for the purpose of discovery. Pa.R.C.P. 4001(c), (d); Pa.R.C.P. 4007.1. Consequently, a
videotape deposition for the purpose of discovery is permissible under Pa.R.C.P.
4017.1(a) which permits oral depositions to be recorded by videotape:
"Any deposition to be taken upon oral deposition may be recorded by videotape
without a stenographic transcript. Except as otherwise provided by this rule, the
rules of this chapter governing the practice and procedure in depositions and i;
discovery shall apply."
But while Rule 4017.1(a) permits an oral deposition to be recorded by videotape, its
provisions are subject to the restrictions of Pa.R.C.P. 4011 which preclude discovery
it
that would cause unreasonable annoyance, burden, or expense. In the absence of a
showing of a special need to record an oral deposition by videotape, we hold that the ?
videotaping of a deposition for discovery purposes only will cause unreasonable annoy.
ance. burden, and expense. I
Already the costs of discovery are burdensome and create difficulties for parties ?
without substantial resources. If oral depositions may be recorded by videotape as a
matter of course, litigation expenses will he substantially increased and parties who
cannot afford a copy of the videotape recording will he placed at a tactical disadvantage.
298 PITTSBURGH LEGAL JOURNAL. [131P.L.J.
299 (198
Tillen v Shento
Also, an oral deposition subjects the less sophisticated deponents to greater stress
and emotional discomfort. Constantly we are reminded of the stress that an oral deposi.
tion places on the deponent by the number of requests presented to the court to Rules of
postpone or prohibit the taking of a deposition which are supported by medical reports L R
,
The recording of a deposition by videotape would substantially exacerbate this stress* eri spice.
Plaintiff argues that a videotape deposition is superior for several reasons
First
it seeding r
.
,
can increase the likelihood of settlement because Insurance adjustors, senior partners p
,
etc_ will be in a better position to evaluate the case by observing the demeanor of ll
a
e
potential witnesses. Second. If there is a need to use the deposition at trial (see ent
r i,
had filed
Pa_R.C.P. 4020), the jury will be better equipped to evaluate the credibility of the
witness by observing the witness's demeanor. Third, the cost and delay involved in Joni
obtaining a stenographic transcript can be avoided through the videotaping of the ?ohs
testimony. These benefits are marginal. The attorneys present at the deposition are in a Will
position to describe the witness's demeanor; if a deposition Is taken for discovery Review.
purposes only, It will seldom be used at trial; and, in most instances, the recording by
i N
v
deotape will be in addition tcl not in lieu of-a stenographic transcript because
' o,
counsel
s need to refer Immediately to portions of testimony for trial preparation and at
trial is met only by a stenographic transcript.
In summary, the marginal benefits to be gained from permitting oral depositions
taken for discovery purposes only to be recorded by videotape as a matter of course are O'M
far outweighted by the increased expenses and trauma that will result from the the Corn
unfettered use of such discovery. There are situations in which there may be a s
ecial perming
p
need to record an oral deposition by videotape (such as the deposition of a witness who pertains
is M. who may be leaving the jurisdiction, etc.), and the obvious u
rpose p of Rule Repeale
4017-1(a) is to authorize a videotape deposition in these situations. The he initial rule Pa.f
permitting videotape depositions was part of a two-year experimental program; the rule
was continued because it worked well in practice. See Explanatory Note-1978
At no shal
.
time has it been the practice in this Commonwealth to record oral depositions by call:
videotape as a matter of course. And for the reasons set forth in this o
ini
' recr
p
on, we
conclude that by promulgating Rule 4017.1 (a), it was not the Supreme Court's intention recr
to permit videotape depositions to be taken for discovery purposes only as a matter of
' The
course. in[erves
ORDER OF COURT court t(
order a
C3n this 14th day of September, 1982, it is hereby ORDERED that defendant's motion remand:
for a protective order prohibiting plaintiff from recording defendant's deposition by cross
videotape is granted. d
deemed
order. I
By THE COURT: order.
/s/ Werrrcx, J. Th<
Alleghe
• Dc(endant hu no objection to the Lakin of his do
8 fwsiuon upon oral exammauon so lon
i Cate of
g as
t is not recorded by videoupe.
Dui
• .This opinion does not apply to a videotape deposition of a medical witness or any witness
called as an expert because these depositions may be used at trial even if the witness i
bl discussi
C
s a
e to
testify ( Pa. R.C.P. 4017.1(g)). ourt. t
dispute
year. TI
taxpaye
a Motic
Mt. Lcl
Exhibit F
law.com/pa
Page 1 of6
PA HOME PAGE
MEMBERS MENU Results
Tracking Service
All Databases ,
Case Search s
News Search Click here for first hit
Headline Archives Source: District & County Reports, 3rd Series
Suits Begun Filed: 1985-05-16
Verdicts
Legislation 41 D.&C. 3d 64
Judicial Directory
Lawyer Directory Osborne v. Sears
Roebuck and C
Supreme et. Watch ,
ompany
Trial Listings
Court Rules Discovery -- Products-liability action -- Radial-arm saw accident --
Forms Library Reenactment of accident to be f lmed -- Absence of authority of court of
compel reenactment
Retorter
Tutorial In a products-liability action in which plaintiff alleges injury while using
a radial-arm saw manufactured and sold by defendants, a court does not
Help have authority under the Rules of Civil Procedure governing discovery,
Contact Us Pa.R.C.P. 4001 el seq., to compel plaintiff to reenact the accident so that
Site Index defendants can film the reenactment.
Products
catalog Motion to permit reenactment. C.P. of Allegheny County, no. G.D. 83-
08867.
To Order
Advertising peter Molinaro, for plaintiff.
Online
Print
AnthonpJ Basinski, for defendants
classified Ads .
IPO Watch WETTICK, A.J., May 16, 1985--This is a product-liability action in
which plaintiff alleges that he was injured while using a radial-arm saw
manufactured by Emerson Electric Company (Emerson) and sold by
Sears, Roebuck and Company (Sears). Defendants allege that the injury
was caused by plaintiffs misuse of the saw.
Defendants have scheduled plaintiffs deposition at the site of the
accident. At the deposition they will
41 D.&C. 3d 65
./relrv2.pl?db=DC3&id=0000004115& fm=0&h I=%270SBORNE%27+%26+%27SEARS%27+19/5100
law.com/pa
Page 2 of 6
ask plaintiff to reenact the accident. Defendants intend to film the
reenactment and will give copies of the film to plaintiff. Plaintiff has
stated that he will not reenact the accident in defendants' presence unless
ordered to do so by the court.
Presently before this court is defendants' motion to compel plaintiff to
reenact the accident. Defendants contend that this is an appropriate
discovery request because an oral description of the circumstances of the
accident is far more vague than a reenactment of the incident. Defendants
state that an order requiring plaintiff to demonstrate his operation of the
saw would (1) narrow the issues regarding plaintiffs operation of the
saw, (2) prevent undue surprise to defendants should plaintiff attempt to
demonstrate his operation of the saw in court,* and (3) establish evidence
in the clearest way, free from problems of verbal inadequacy and
inaccuracy, regarding plaintiffs operation of the machine.
Discovery is governed by the Rules of Civil Procedure. A court has no
inherent power to compel discovery. Consequently, defendants' motion
will fail unless a rule of discovery authorizes this court to enter an order
compelling plaintiff to reenact the accident. Conemaugh Coal and
Construction Corp. v. Pittsburgh Contractors Equipment Company, 22
D.&C.3d 720 (1982).
" Plaintiffs counsel advised the court that plaintiff does not intend to operate the saw in
court. Also, if plaintiff intends to offer any film showing the manner in which he
operated the saw, by local rule this film is required to be furnished to defendants as part
of plaintiffs pretrial statement. The court would permit defendant to take a second
deposition of plaintiff after the filing of plaintiffs pretrial statement if this film raised
questions that were not reasonably anticipated and thus were not covered in plaintiffs
original deposition.
41 D.&C. 3d 66
Defendants rely on Pa.R.C.P. 4009(a), which reads in relevant part that:
"(a) A party may serve on any other party a request
"(1) to produce and permit the party making the request or someone
acting on his behalf, to inspect or copy any designated documents ... or
to inspect and copy, test or sample any tangible things ...; or
"(2) to permit entry upon designated land or other property ... for the
purpose of inspecting and measuring, surveying, photographing, testing,
or sampling the property or any designated object or operation thereon,
within the scope of Rules 4003.1 through 4003.5 inclusive."
/reirv2.pl?db=DC3&id=0000004115&fnt=0&hl=%27OSBORNE°/u27+a/o26+"/a27SEARS%27+ 9/5/00
law.com/pa
This rule permits defendants to enter upon the accident site (which is in
plaintiffs control) for the purpose of inspecting, measuring, and
operating the saw. However, no language within this rule even suggests
that a court may compel an adverse party to operate a designated object
for a party making a discovery request.
Rule 4009 is taken almost verbatim from Fed.R.Civ.P. 34. See
Explanatory Note 1978 to Rule 4009. Defendants contend that their
motion is supported by the following note of the Advisory Committee to
Federal Rule 34: "If the operation of a particular machine is the basis of a
claim for negligent injury, it will often be necessary to test its operating
parts or to sample and test the product it is producing." However, this
note only authorizes the party seeking discovery to conduct the testing.
Also, defendant's reliance on Dow Chemical Company v. Monsanto, 256
F.Supp. 315 (S.D., Ohio, 1966), is misplaced. In that case, the court
granted plaintiffs motion to inspect visually the manufacturing process
of defendant in a patent-infringement case in which defendant was
accused of
41 D.&C. 3d 67
using a manufacturing process for which plaintiff had a patent. Such
discovery is permitted by the provision of Rule 34 permitting entry on
property for the purpose of inspecting an "operation thereof."
Finally, there are no public-policy considerations that would favor a
construction of Rule 4009 that is broader than its language. It is
questionable whether a film of the reenactment would give the fact finder
a clearer picture of what actually occurred. Because of the presence of the
camera, the actor may experience "stage fright" and, consequently,
operate the saw in a manner very different from the manner in which it
was operated during the accident. Several "retakes" may be required
before the actor is satisfied with the presentation. The fact finder will
very likely be shown each of the filmings with each party arguing as to
which filming more accurately depicts how the accident occurred.
A photographic reenactment focuses on the ability of plaintiff to portray
precisely and accurately how the accident occurred. But the controlling
issue at trial is not whether plaintiff can accurately describe how the
accident happened or even whether the accident happened exactly in the
manner described by plaintiff. Frequently, plaintiffs cannot fully and
precisely recall how an accident occurred. Verbal descriptions of the
accident may be vague because of memory lapses and uncertainty -- not
because of a witness's inability to articulate what the witness knows.
Verbal descriptions permit these uncertainties to be expressed. A
Page 3 of 6
/retrv2.pl?db=DC3&id=0000004115&fm=0&hl=%27OSBORNE%27+"/026+"/o27SEARS%27+ 9/5/00
law.com/pa
Page 4 of 6
photographic reenactment ooes not allow for any uncertainty.
Also, if plaintiff states that he does not know whether lie was using his
left hand or his right hand, or that the blade could have been anywhere
between 12 and 24 inches from his hand when he pushed a lever, or that
he is uncertain whether he
41 D.&C. 3d 68
was watching the switch or watching the blade, how is it possible for
plaintiff to recreate the circumstances of the accident? While a
photographic reenactment will give the illusion of certainty, it may only
be masking the uncertainty that exists.
Although this film would have limited probative value for the reasons
discussed in this opinion, it is likely that the film will receive an
inordinate amount of attention at trial because of the seductive appeal of
visuals on a jury in this television-oriented society. If the film depicts
plaintiff using the product properly, defendants will ask the jury to
disregard the film and instead consider plaintiffs possibly inconsistent
verbal descriptions of the manner in which the product was used. The
jury will be reminded that plaintiff would be expected to use the saw
properly during the filming because he had the opportunity to rehearse its
use and was devoting full attention to the manner in which he was using
the saw. On the other hand, if plaintiff makes a mistake in his use of the
saw, defendants will argue to the fact finder that plaintiff surely would
not have used the saw properly when he was not being observed if he
cannot even use it properly when he is giving full concentration to its
use. Plaintiff, on the other hand, will argue that the jury should give
significant weight to a film showing a proper use of the saw and seek to
excuse any improper use by arguing "stage fright."
This court's ruling is consistent with Talley v. Ford, 35 D.&C.2d 772
(1964). An issue in that case was whether additional defendant had
caused the automobile accident by moving into the left lane when making
a right-hand turn. Original defendant contended that, because of the size
of additional defendant's truck, it would not be possible for additional
defendant to make a right-hand turn without
41 D.&C. 3d 69
moving into the left lane. Original defendant sought to refute additional
defendant's testimony that he made the turn from the right-hand lane by
compelling additional defendant in discovery proceedings to make the
./retrv2.pl?db=DC3&id=0000004115&fm=0&hl=%270SBORNE%27+%26+%27SEARS%27+ 9/5/00
law.com/pa
turn in the manner which he described. The court held that the Rules of
Civil Procedure did not authorize this discovery request and also
concluded that if such discovery was permitted "in all likelihood, many
more questions would be generated than answered, and that the issues at
trial would be rendered infinitely more complex." 35 D.&C.2d at 783.
Many of the same policy considerations that led this court in Tillett v.
Shento, 131 P.L.J. 297 (1982), to grant a protective order prohibiting
plaintiff from taking defendant's deposition by videotape for discovery
purposes support the denial of defendant's motion. These considerations
include:
Page 5 of 6
"Already the costs of discovery are burdensome and create difficulties for
parties without substantial resources. If oral depositions may be recorded
by videotape as a matter of course, litigation expenses will be
substantially increased ....
"Also, an oral deposition subjects the less sophisticated deponents to
greater stress and emotional discomfort. Constantly we are reminded of
the stress that an oral deposition places on the deponent by the number of
requests presented to the court to postpone or prohibit the taking of a
deposition which are supported by medical reports. The recording of a
deposition by videotape would substantially exacerbate this stress.
r?r
"In summary, the marginal benefits to be gained from permitting oral
depositions taken for discovery purposes only to be recorded by
videotape as a matter of course are far outweighed by the increased
expenses
41 D.&C. 3d 70
and trauma that will result from the unfettered use of such discovery." pp.
297-8.
For these reasons, we enter the following
ORDER OF COURT
On this May 16, 1985, it is hereby ordered that defendants' motion to
permit reenactment is denied.
41 D.&C. 3d 71
/retrv2.pl?db=DC3&id=0000004115&fm=0&hl=%270SBORNE%27+"/026+%27SEARS%27+ 9/5/00
WIN 0
• 20'3tJtid bSZ52£LGTL
Act 29 D.&C, 4th
-d, which indicates that Leers
x to intentionally avoid the
er's legal interest was that
rst lien holder. Her interest
e did not take title to the
certainly have sentimental
ep the farm in the family.
', does not provide a basis
hat petitioner did not have
Sylvania law to take a deed
osure. However, this is an
t fraudulent conveyance in
distinct possibility. We are
tt petitioner could not have
)n and eventually obtained
procedure, however, would
1ve and cooperative efforts
generated funds at a sheriff's
an contributed to the part-
lyed here completely elimi-
on the surface, appears to
radon process. Furthermore,
ve pure speculation for the
Ket value and compare the
he issues presented.
:d order is entered.
DER
•TS:TT 0002 LT ttON
187 (1993) 187
Spraglin v, hIHK Associates
Discovery - Deposition - Videotaped - Pa R.C.P. 4017.1 -
Reenactment of industrial accident sought - Videotaped deposition
denied
Pa.R.C.P. 4017.1 does not authorize a court to compel a videotape
deposition of plaintiff during which the industrial accident that caused
plaintiff's injury is reenacted.
Motion to compel video deposition of plaintiff. C.P.
of Cumberland County, no. 877 Civil 1992.
Stephen M. Greecher Jr., for plaintiffs.
George B. Faller, for defendant S. I. Handling Systems
Inc.
HESS, J., October 19, 1993-This matter is before
the court on the motion of defendant, S.I. Handling
Systems inc., to compel a videotape deposition of the
plaintiff during which he will be required to reenact
the accident which caused his injury. The plaintiff was
an employee at the New Cumberland Army Depot and
was injured when he was struck by an automated cart
and had his knee pinned or crushed in some fashion
thereby. For the purposes of this motion, it was agreed
that the defendant and moving party herein, S.I. Han-
dling Systems Inc., had received a 513.1 million sub-
contract for creating and installing a towline conveyor
system by which items stored at a distribution center
were able to be conveyed within the center in an auto-
mated fashion. This involved moving items by carts
which, in turn, moved along tracks on the floor of
the building. The plaintiff contends that he was struck
by one of the automated carts when it left the tracks.
Videotape depositions may be taken as a matter of
1995, the petition to strike right in Pennsylvania. Pa.R.C.P. 4017.1 provides, in
1995, is denied. pertinent part, that.
188 Spnghn v. MHK Aseoeiates 29 DAC. 4th
"Any deposition taken upon oral examination may
be recorded by videotape. Except as provided by this
rule, the rules of this chapter governing the practice
and procedure in depositions in discovery shall apply."
The defendants in the present case, however, not
only request that an oral deposition be videotaped but
that it be videotaped at the scene ofthe plaintiffs alleged
injury. They make this request because of the novelty
of the equipment that allegedly caused the plaintiff's
injury, the mechanics of the injury, and the fact that
none of the defendant's employees witnessed the ac-
cidcnt. During the hearing on this motion, it was not
disputed that defendants have ascertained that the lo-
cation is available for such a deposition through an
attorney from the Department of Defense. The Depart-
ment has also agreed that it would comply with any
order requiring the plaintiff to re-create the injury, de-
spite their subrogation interest in plaintiff's workers'
compensation payments. The defendant also claims that
the reenactment can be performed with the carts adjusted
in a manual mode thereby eliminating any risk of further
injury to the plaintiff. Plaintiff's counsel, however, has
indicated that his client refuses to participate in the
reenactment. He also contends that because the accident
happened as a result of rapidly occurring events, at
a time when the cart mechanism was automated, any
attempt to re-create the accident in a deliberate fashion
and while the machinery is in a manual mode would
be misleading.
In several instances, the federal courts have held that
re-creations may be compelled under certain circum-
stances. In Kiraly v Berkel Inc., 122 F.R.D. 186 (E.D.
Pa. 1988), the plaintiff had filed a suit alleging that
PP *An"A 7471'?f1'1 NNMJ ' "H i N''
187 (1993) Spnglin v. MHK A:
a defective meat slicer injured het
filed a motion to compel a vide
the plaintiff's accident pursuant to
That rule provides, in pertinent
"... the court may upon motion o
at a deposition be recorded by of
means. The stipulation or order s
son before whom the depositio
manner of recording, preserving
sition and may include other pr(
the recorded testimony will be i
thy."
The court then went on to an
of the request for a videotape of
her accident.
"Courts have encouraged a lit
provision: `Experimentation wit
authorized procedure should be
blocked....' Colonial 77mes Inc.
(D.C. Cit. 1975). Two cases havt
(the) question whether to videota
her accident, and in both case
the usefulness of the procedure c
prejudice to the plaintiff. In Rc
vision of Textron Inc. 109 F.RE
the plaintiff injured his hand v
the defendant manufacturer's l
found that a videotaped reenac
parties in a better understandir
the day of the accident. Id. at 6
v. Burlington Northern Inc., '
Neb. 1971), the court ordered a
of the plaintiff's injurious en(
steel press-'for the purpose
bC7C7G1 ,T/ Cti!TT 01p7/iT/TT
t0'3E)Ud vSZSZELLTL M TT 0002 LT r10N
ape., Except as provided by this filed a motion to compel a videotape reenactment of
chapter governing the practice ? theplaintiff'saccident pursuant toFed.R.Civ.P.30(b)(4).
sitioas in discovery shall apply- • 'That rule provides, in pertinent part;
the present case, however, not "... the court may upon motion order that the testimony
-al deposition be videotaped but de osition be record d b th
he scene of the plaintiff's alleged
request because of the novelty
allegedly caused the plaintiff's
of the Nary, and the fact that
's employees witnessed the ac-
ring on this motion, it was not
its have ascertained that the lo-
such a deposition through an
rrtment of Defense. The Depart-
that it would comply with any
intiff to re-create the injury, de.
interest in plaintiff's workers'
s. The defendant also claims that
Jerformed with the carts adjusted
Dy eliminating any risk of further
'laintiff's counsel, however, has
at refuses to participate in the
intends that because the accident
of rapidly occurring events, at
nechanism was automated, any
accident in a deliberate fashion
ay is in a manual mode would
the federal courts have held that
>mpelled under certain circum-
rrkel Inc., 122 F.R.D. 186 (E.D.
f had filed a suit alleging that
at a p e y o er than stenographic
means. The stipulation or order shall designate the per-
son before whom the deposition shall be taken, the
manner of recording, preserving and filing the depo-
sition and may include other provisions to assure that
the recorded testimony will be accurate and trustwor-
thy„
The court then went on to analyze this rule in light
of the request for a videotape of the plaintiff reenacting
her accident.
"Courts have encouraged a liberal application of this
provision: 'Experimentation with Rule 30(b)(4)'s duly
authorized procedure should be encouraged rather than
blocked....' Colonial Times Inc. v Casck, 509 F.2d 517
(D.C. Cir. 1975). Two cases have specifically dealt with
[the] question whether to videotape a plaintiff reenacting
her accident, and in both cases, the court found that
the usefulness of the procedure outweighed the potential
prejudice to the plaintiff. In Roberts v Homelight Di-
vision of Textron Inc. 109 F.R.D. 664 (N.D. Ind. 1986),
the plaintiff injured his hand while attempting to start
the defendant manufacturer's lawn mower. The court
found that a videotaped reenactment would 'assist the
parties in a better understanding of what occurred' on
the day of the accident, Id. at 668. Similarly, in Carson
v Burlington Northern Inc., 52 F.R.D. 492, 493 (D.
Neb. 1971), the court ordered a videotaped reenactment
of the plaintiff's injurious encounter with defendant's
steel press-'for the purpose of showing the manner
50 39vd
190 SM81in v MHK Associates
29 D.QC. 4th
in which plaintiff approached and operated the ma-
chine....' " Id. at 187.
The Pennsylvania courts, apparently, have not ad-
dressed this matter with the frequency of our federal
colleagues. our research, however, has disclosed a case
from Allegheny County in which the Honorable R. Stan-
ton Wettick Jr., grappled with the problem of compelled
reenactment. In Osborne a Sears, Roebuck & Co. and
Emerson Co., 133 P.L.J. 471(1985), the plaintiff alleged
that he was injured while using a radial arm saw. The
defendants scheduled the plaintiff's deposition at the
site of the accident and had intended to ask the plaintiff
to reenact the accident. In light of the plaintiff's advance
warning that he would not comply, a motion to compel
was filed, similar to the one at bar. Instead of applying
rules which would encourage "experimentation" in dis-
covery matters, Judge Wettick suggested a different
approach, and one with which we agree:
"Discovery is governed by the Rules of Civil Pro-
cedure, A court has no inherent power to compel dis-
covery. Consequently, defendants' motion will fail un-
less a rule of discovery authorizes this court to enter
an order compelling plaintiff to reenact the accident.
Conemaugh Coal and Construction Co. v. Pittsburgh
Contractors Equipment Co., 22 D.&C.3d 720,130 Y.L.J.
411 (1982)." Id. at 471.
As the court went on to note, there is no Pennsylvania
discovery rule which even suggests that a court may
compel an adverse party to operate a designated piece
of machinery or otherwise reenact an accident. Thus,
the request of the defendant in Osborne would be denied,
in part, in keeping with the view that no discovery
may be compelled unless authorized by rule of court.
3937100 NN3d 7Vd1N30
187 (1993) Sproglin v. M
Judge Wettick went further,
certain public policy cons
against a rule compelling r
length because we agree wit
"A photographic.reenactn
of the plaintiff to portray pt.
the accident occurred. But t
is not whether plaintiff cal
the accident happened or t
happened exactly in the nta
Frequently, plaintiffs canno
how an accident occurred.
accident may be vague bee:
uncertainty-not because o
ticulate what the witness 1
permit these uncertainties
graphic reenactment does n
"Also, if the plaintiff st
whether he was using his
or that the blade could he
12 and 24 inches from h
lever, or that he is uneerta
the switch or watching tY.
for the plaintiff to recrea'
accident. While a photogr
the illusion of certainty, i
uncertainty that exists.
"Although this film w
value for the reasons dis
likely that the film will r
of attention at trial bcca
of visuals on a jury in th
If the film depicts plainti
r?
Anmmwb?_..
CS7G7r//T/ ro:TT nnGL//T/TT
90'3Otid 452S2FLLTL VS: T1 0002 LT r10N
ssociues 29 D.&C. 4th 187 (1993) Spraghn v. MHK Associates 191
1 and operated the ma- Judge Wettick went further, however, in underscoring
certain public policy considerations which militate
apparently, have not ad- against a rule compelling reenactments. We quote at
Tequency of our federal length because we agree with the court's observations:
wer, has disclosed a case
' "•A photographic reenactment focuses on the ability
h the Honorable R. Stan- of the plaintiff to portray precisely and accurately how
he problem of compelled the accident occurred. But the controlling issue at trial
ars, Roebuck & Co. and is not whether plaintiff can accurately describe how
985), the plaintiff alleged the accident happened or even whether the accident
1g a radial arm saw. The happened exactly in the manner described by plaintiff.
.ntiff's deposition at the Frequently, plaintiffs cannot fully and precisely recall
ended to ask the plaintiff how an accident occurred. Verbal descriptions of the
of the plaintiff's advance accident may be vague because of memory lapses and
ipLy, a motion to compel uncertainty--not because of a witness's inability to ar-
bar. Instead of applying ticulate what the witness knows. Verbal descriptions
'experimentation" in dis- permit these uncertainties to be expressed. A photo-
*e suggested a different graphic reenactment does not allow for any uncertainty.
:h we agree: "Also, if the plaintiff states that he does not know
the Rules of Civil Pro- whether he was using his left hand or his right hand,
nt power to compel dis- or that the blade could have bcen anywhere between
nts' motion will fail un- 12 and 24 inches from his hand when he pushed a
-rizes this court to enter lever, or that he is uncertain whether he was watching
to reenact the accident. the switch or watching the blade, how is it possible
uction Co. v Pittsburgh for the plaintiff to recreate the circumstances of the
D.&C.3d 720, 130 P.L.J. accident. While a photographic reenactment will give
the illusion of certainty, it may only be masking the
there is no Pennsylvania uncertainty that exists.
ggests that a court may "Although this film would have limited probative
,erase a designated piece value for the reasons discussed in this opinion, it is
!nact an accident. Thus, likely that the film will receive an inordinate amount
4borne would be denied, of ancntion at trial because of the seductive appeal
view that no discovery of visuals on a jury in this television oriented society.
torized by rule of court. If the film depicts plaintiff using ;he product properly,
i r.'.
'r.
40 39ed
i
192 SpnBlin a MW Associates
29 D.RC. 4th
defendants will ask the jur
to di
193 (1996)
y
sregard the fi
In
instead consider plaintiff's posibl
s
i
Stine V. M
y
nconsistenal
t
verbal
descriptions of the marmcr in which the product was
used. Thejury will be re
i
d
d
Torts - Defamation - Compelh
m
n
e
that the plaintiff would
be expected to use the saw
In a defamation action
the
di
properly during the filming
because he had the opportuni
to
rehearse its use and ,
court
of a defendant who allegedly sent p
was devoting full attention to
the
he was was d manner in which
using the saw
On th
h department stationery stating that plat
must seek medical advice and notif,
.
e ot
er hand, if the plaintiff
makes a mistake in his use of th sexually active, because it was £orese
e saw, defendants will
argue to the fact finder that the plaintiff surely would the plaintiff herself would publish t the defendant
put thechaioofeventsir
not have used the saw properly when he was not bei dismissed.
dismissed.
ng
observed if he cannot even
use it properly when h The
The complaint alleged that plaint
b
i
fi
i
ff
f
e e
is giving full concentration to its use. Plaintiff, on the
other h
d
i e an o
ic
al noti
cat
to
on
rom the
her that someone with whom she wr
an
, w
ll argue that the jury should glue Sig-
nificant weight to a fil
h AIDS and that she must now see a p with
have had such
m she ma
wh
m s
owing a proper use of the
saw and seek to excuse any improper use b ar
uin
by n y
o
how
however, that the letter was a hoax
g
g
g
`stage fright.' " [d. at 472-473 that as a consequence of the letter plat
.
We believe that the above observations are partiCU-
larly ap
licable t
h contents to third parties.
Defendant filed preliminary object
p
o t
e instant case. Here, an automated e) a defamation action cowl'
48343
cart is alleged to have suddenly left its designated path h
r
published the actionable words,
striking the plaintiff. Given the propinquity of events e
s
that the publication to per
,
it is literally impossible to reenact the accident as it w
as
was all a result of the plaintiffs r
occurred. The precise trajectory of the cart, the position
of the plaintiff and co
f 585 A.2dg1022n(199t1), aoyealden,
n
iguration of his body at the
time he was injured must all be simultaneously and (1991)--where the self-publication ,
to the plaintiff was held non-actior
accurately reproduced. Were the video reenactment to
be com
elled i
thi Sylvania did not absolutely rule ou
p
n
s case, we could readily foresee publication component of the claim
a situation where the trial would revolve less around publication"
credibility and more around the thespian talents of the irs cases from other
After
plaintiff. catio
self-publication is recognized, the
who sets in motion such a foresee
ORDER claim lack of causality because, afte
back and watches the results of t
And now, October 19, 1993, the motion of defendant coon halo Pennsylvania's publics
,
S.I. Handling Systems Inc. to compel, is denied. C.P. of York County, n(
393?'Ip? Irl3a iC-!JJgJ 7c7S7Ft/T! Fn :TT GggL//_T/TT
Exhiblt H
PEGGY STERMER and
BARRY STERMER,
Plaintiffs
V.
TRANSACT OF SOUTH
CENTRAL
PENNSYLVANIA and
DAVID R. WENNER,
D.O.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-3740 CIVIL TERM
IN RE: PLAINTIFFS' M OTI ON TO COMPEL AND FOR
SANCTIONS AGAINST DE FEND ANT DAVID R. WENNER. D.O.
FOR FAILURE TO APPEA R AT DEPOSITION: DEFENDANT
DAVID R. WENNER. D. O.'S R ESPONSE TO P LAINTIFFS'
MOTION TO COMPEL AND F OR S ANCTIONS. AN D NEW MATTER.
OR IN THE ALTERNATIV E. M OTION OF DEFE NDANT FOR
PROTECTIVE ORDER AND STAY OF PROC EEDINGS
ORDER OF COURT
AND NOW, this 22"d day of November, 2000, upon consideration of Plaintiffs'
Motion to Compel and for' Sanctions against Defendant David R. Wenner, D.O. for
Failure To Appear at Deposition; Defendant David R. Wenner, D.O.'s Response to
Plaintiffs' Motion To Compel and for Sanctions, and New Matter, or in the Alternative,
Motion of Defendant for Protective Order and Stay of Proceedings; and Plaintiffs'
Response to New Matter or in the Alternative Motion for Protective Order of Defendant
Wenner, and of the briefs submitted, and it appearing that there are no special
circumstances militating in favor of videotaping Defendant Wenner's discovery
deposition, Plaintiffs' Motion To Compel and for Sanctions against David David R.
Wenner, D.O. for Failure To Appear at Deposition is denied. Defendant Davit R.
NOV 2 8 2000
Wenner, D.O.'s Motion for Protective Oder and Stay of Proceedings is granted with
respect to the protective order and denied with respect to the stay of proceedings. See
Tillett v. Shento, 131 Pittsburgh L.J. 297 (1982).
BY THE COURT,
James R. Ronca, Esq.
209 State Street
Harrisburg, PA 17101
Attorney for Plaintiffs
An r6w H. Briggs, Esq.
0 Grandview Avenue
Camp Hill, PA 17011
Attorney for Defendant
David R. Wenner, D.O.
Kendra D. McGuire, Esq.
126 East King Street
Lancaster, PA 17602
Attorney for Defendant
Transact of South Central
Pennsylvania
:rc
I, John R. Canavan, Esq., of the law offices of Post & Schell, P.C., do hereby certify that on the date
listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the
following address(es) by sending same in the United States mail, first-class, postage prepaid:
Robin Marzella, Esquire
R. J. MARZELLA & ASSOCIATES, P.C.
3513 North Front Street
Harrisburg. PA 17110
Craig A. Stone, Esquire
Mette, Evans & Woodside
P. 0. Box 5950
Harrisburg, PA 17110-0950
G. Thomas Miller, Esquire
Miller and Miller
P.O. Box 709
Harrisburg PA 17108-07?
DATE: ")l Zsjo I
JOHN.
VAN, ESQUIRE
FILED-CiTICE
CC' rHI` f"i 7'l'i!-INOTAAY
Q 1 AUG -I Prof 126
GUM8EHLMD COUNTY
PENNGnVMjA