The Honorable Terrence R. Nealon Provides Guidance Regarding the Display of Videotaped Excerpts During Opening Statements
In Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024), Judge Terrence R. Nealon provides well needed clarity regarding the limits of showing videotape excerpts to a jury during opening statements.
Prior to trial, the Webbs moved the Court in limine to allow their counsel to use “admissible excerpts of videotaped depositions” of defense witnesses during counsel’s opening statement. In opposing the motion, the Defendants cited to Lackawanna County Rule of Civil Procedure 223(b)(2), which states that “[o]pening remarks shall consist only of a succinct statement, without argument of the positions and contentions of the party represented by the speaker, and a brief recital of the evidence intended to be introduced in support of the same.” The Defendants also argued that without knowing the excerpts of the video depositions the Webbs intended to introduce, the Webbs may introduce evidence that is inadmissible at trial, resulting in a mistrial.
“The purpose of an opening statement is to apprise the jury of the background of the case, how the case will develop, and what counsel will attempt to prove.” Com. v. Howard, 749 A.2d 941, 955 (PA. Super.2000). An opening statement, “must be based on evidence that [counsel] plans to introduce at trial,” and “may refer to facts that [counsel] reasonably believes will be established at trial” Com. v. Parker, 591 Pa. 526, 537, 919 A.2d 943, 950 (2007). Where “a tangible piece of evidence” is “within the scope of the evidence” that a party “intends to introduce at trial,” and there is no question as to its admissibility,” the “display of the piece of evidence is wholly proper’ during an opening statement provided that its display “does not inflame the passions of the jury. Parker, 591 Pa. at 538, 919 A.2d 950.
The Court concluded that Pa.R.Civ.P. 4017.1(g) and 4040(a)(2) and (5) allows a party to display the video deposition testimony, or excerpts thereof, of parties, their officers, directors, managing agents, and designated witnesses, and non-party medical witnesses and expert witnesses may be used against any party at trial for any purpose, including opening statements, provided the evidence is admissible at trial. However, the Court also determined that Pa. R.Civ.P. 4020(c) and 4016(b) provides that:
while an objection may be made at trial to the introduction of any part of a deposition in the same manner as if the deponent were then testifying, the failure to object during the taking of the deposition will preclude an objection at trial if “the ground of the objection is one which was known to the objecting party and which might have been obviated or removed if made” at the time of the deposition.
Talmadge v. Ervin, 236 A.3d 1154, 1160 (Pa. Super. 2020). However, the Court noted that lawyers typically stipulate at the outset of discovery depositions that all objections, except as to the form of the question, are reserved until the time of trial. Where the parties stipulate to reserve all objections until trial, the court will honor the stipulation. Id.
Here, the Court held that the Webbs may ultimately be permitted to use the excerpts of videotaped depositions of defense witnesses during their counsel’s opening statement, however, the Webbs must show the excerpts to counsel for the defense, enabling them to make the proper objection, and allowing the Court to properly rule on the objection; and also allowing the Defendants to determine whether the wish to show any other parts of those depositions under Pa. R.Civ.P. 4020(a)(4) during their respective opening statements.
The Opinion and Order in Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.) can be accessed here.
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