Court Compels Deposition of Defendant Over Defendant's Covid-19 Pandemic Fears

In the case of Espinosa v. Luthercare, No. 2019-CV-02130 (C.P. Leb. Co. July 28, 2021 Charles, J.), Judge Bradford H. Charles of the Lebanon County Court of Common Pleas issued a decision ordering a witness to give a videotape deposition testimony without a mask but while sitting in a room without anyone else present. The court granted the Motion to Compel at issue filed by a Plaintiff against a Defendant in a professional negligence action against a doctor and a nursing facility in which it was alleged that the decedent’s death was allegedly caused by the Defendants’ failure to evaluate and treat the decedent.

In this matter, the Plaintiff sought the Defendant doctor’s deposition.

The Defendant doctor asserted that he should be permitted to wear a mask due to concerns over COVID-19 during the deposition.

The Plaintiff argued that the Defendant should not be allowed to wear a mask but that the Plaintiff would agree to videotaping the Defendant’s deposition such that the Defendant’s doctor would be the only person in the room.

In rendering his decision, Judge Charles reviewed the Pennsylvania case law that stressed the importance of the fact-finder in being able to assess the demeanor of the witness.

The court additionally noted that witnesses in its courtroom had never been allowed to wear masks while testifying during the pandemic, noting it was the court’s belief that the fact-finder should be able to see the witnesses clearly as they testify.

The court noted that the facial expressions of a witness contribute to the overall demeanor of the witness and that the demeanor of the witness was a touch stone of any credibility assessment.

As noted above, the court, while noting the seriousness of the COVID-19 concerns, found that the proposed process of having the witness unmasked and in a room by himself would reduce the risk of infection to almost a de minimus level.

Under the discretion granted to trial court judges to manage the discovery process, the court crafted an Order compelling the unmasked, videotape deposition of the Defendant.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2021).

Source of above image:  Photo by Anshu A on Unsplash.com.

 

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