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Rubino v. G. D. Searle & Co.

Supreme Court of New York, Trial Term, Nassau County

February 13, 1973

No Number in Original


 [*447]  [**575]   In this medical malpractice action, the defendant, G. D. Searle & Co. (hereinafter referred to as Searle), seeks an order permitting it to make a videotape recording, in addition to a stenographic transcription,  [***2]  of the examination before trial of Doctor Victor A. Drill, the former director of biological research of Searle. The defendant, Searle, seeks the opportunity to videotape Dr. Drill's examination, at its own expense, for use at the trial of this action, pursuant to CPLR 3117, on the ground that Dr. Drill will be unable to testify at the trial of the action due to his having suffered an acute anterior myocardial infarction on August 23, 1971.

Plaintiffs, in their opposing papers, assert that the videotaping of the examination before trial is an attempt by the defendant, Searle, to place its witness "in the best and favorable light to a jury without subjecting the witness to the deep, penetrating and intensive cross-examination that a visual witness should be subjected to". Plaintiffs further claim that if the videotaping were allowed, a "circus type atmosphere" would be created at the trial of this action.

 [*448]  While the instant application presents a question of first impression in this State, other jurisdictions have permitted the videotaping of examinations before trial 1 [***4]  and, in the State of Ohio, an entire trial  [**576]  was pretaped and presented to the jury by the [***3]  use of videotape. 2 Further, in some jurisdictions, videotaping of trial proceedings has been utilized with apparent success when a competent court reporter was unavailable. 3 In the area of criminal law, videotape recordings of a defendant's statement to the police ( Hendricks v. Swenson, 456 F. 2d 503 [8th Cir., 1972]; Paramore v. State, 229 So. 2d 855 [Sup. Ct., Fla., 1969]), as well as videotapes of a lineup ( People v. Heading, 39 Mich. App. 126 [1972]; Washington v. Newman, 4 Wash. App. 588 [1971]), have been shown to the jury.

Perhaps the most concise statement of the rationale underlying the use of videotaped depositions can be found in Carson v. Burlington Northern Inc. (52 F. R. D. 492, 493 [D. Neb., 1971]): "'The finder of fact at trial often will gain greater insight from the manner in which an answer is delivered and recorded by audiovisual devices. Moreover, a recording, a video tape, or a motion picture of a deposition will avoid the tedium that is produced when counsel read lengthy depositions into evidence at the trial.' 8 Wright & Miller, Fed. Practice and Procedure 426 (1970)."

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73 Misc. 2d 447 *; 340 N.Y.S.2d 574 **; 1973 N.Y. Misc. LEXIS 2229 ***

Diane Rubino et al., Plaintiffs, v. G. D. Searle & Co. et al., Defendants


videotape, deposition, recording, stenographic, examination before trial, videotape, Courtroom

Civil Procedure, Methods of Discovery, Depositions, Oral Depositions