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Bichler v. Eli Lilly & Co.

Supreme Court of New York, Appellate Division, First Department

December 11, 1975

No Number in Original


 [*91]  [**144]   In this personal injury action the infant plaintiff claims that she was injured by Diethylstilbestrol ("DES"), a prescription drug manufactured by defendant-appellant, Eli Lilly and Co. Lilly defends on the ground that the drug was properly tested and was approved by the Federal Drug Administration. Doctor Don Carlos Hines was  [**145]  Lilly's monitor for the testing of DES during the period 1940-1950. He is now 71 years old, is retired from Lilly's employment, resides in California and claims to suffer from various allergies. He is said to be unable, or at least unwilling, to appear in New York for the trial of this action. It is claimed by Lilly that Dr. Hines is the sole living witness who actually participated in and directed the 1940-1950 clinical experiments which led to the approval of DES by the Federal Drug Administration.

Special Term, while allowing a stenographic examination of Dr. Hines, denied appellant's motion to allow it to make a simultaneous video-tape recording thereof [***4]  and likewise denied a subsequent application for use of the video tape in the instant case and in two other similar cases, Newman v Eli Lilly & Co. (US Dist Ct, ED NY) and Bichler v Willing (Sup Ct, Bronx County).

CPLR 3113 subd [b] requires that the deposition testimony be recorded. "Explicit permission to take the testimony by mechanical means was not considered necessary * * * because it is difficult to see how a party would be prejudiced by the use of such recording devices." (1957 Report, Advisory Committee on Practice and Procedure, § 34.12, subd [b], p 139.) Tape recordings were permitted in Catapano v Shapiro (6 AD2d 1054) and Gotthelf v Hillcrest Lbr Co. (280 App Div 668).  [*92]  Electronic recording by audio tape is often used by the Federal courts.  ( Colonial Times v Gasch, 509 F2d 517; Lucas v Curran 62 FRD 336; Carter v Bancroft & Sons, Co. 360 F Supp 1103; Jarosiewicz v Conlisk, 60 FRD 121; Marlboro Prods Corp. v North Amer Philips Corp., 55 FRD 487.)

The examination sought should be recorded faithfully, just as spoken by the witness.  Video taping, the synchronization of a motion picture with a sound recording, is currently [***5]  the most advanced electronic technique used for such purpose.  It has been sanctioned where the procedure to be followed assures the accuracy and integrity of the record. ( Rubino v Searle & Co, 73 Misc 2d 447; United States v LaFatch, 382 F Supp 630. See, also, Colonial Times v Gasch, supra; ABA Code of Judicial Conduct, Canon 3[A][7][a].) The American Bar Association, in 1969, adopted a Special Committee's report which included a recommendation that "the use of videotape as a means of presenting the testimony of physicians should be encouraged." (55 A.B.A.J. 374, 375.) Lilly should be permitted to make the requested video-tape recording, in addition to a stenographic transcription of Dr. Hines' deposition.

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50 A.D.2d 90 *; 376 N.Y.S.2d 144 **; 1975 N.Y. App. Div. LEXIS 11445 ***

Joyce Bichler, an Infant, by Her Father and Natural Guardian Max Bichler, et al., Respondents, v. Eli Lilly and Co., Appellant, et al., Defendants

Prior History:  [***1]  Appeals from (1) so much of an order of the Supreme Court at Special Term (Alfred J. Callahan, J.), entered April 29, 1975 in New York County, as denied defendant Eli Lilly and Company's motion to preserve the deposition of a nonparty witness on video tape and to depose him simultaneously in this case and two other similar cases and, (2) from an order of said court denying renewal.

Disposition: Order, Supreme Court, Bronx County, entered on August 8, 1975, denying defendant-appellant's motion to renew its motion to preserve the deposition of a witness on video tape and to depose the witness simultaneously in this case and two other similar cases, unanimously reversed, on the law and the facts and in the exercise of discretion, and the motion granted, without costs and without disbursements.

Appeal from order, Supreme Court, Bronx County entered on April 29, 1975, unanimously dismissed as moot, without costs and without disbursements.

Settle order on notice.


recording, deposition, video-tape, videotape, taping, costs, similar case, defendant-appellant's, disbursements, cases, exercise of discretion, renewal motion, stenographic, unanimously, Electronic, permission, courts, depose, tested, Video, moot

Civil Procedure, Methods of Discovery, Depositions, Oral Depositions