Blumberg v. Dornbusch

• Decision Date: 08 March 1976
• Citation: 139 N.J.Super. 433,354 A.2d 351
• Parties: Victoria BLUMBERG, Plaintiff-Appellant, v. Beatrice H. DORNBUSCH, Defendant-Respondent, and Walter Blumberg, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 433

139 N.J.Super. 433

354 A.2d 351

Victoria BLUMBERG, Plaintiff-Appellant, v. Beatrice H. DORNBUSCH, Defendant-Respondent and Walter Blumberg, Defendant.

Superior Court of New Jersey Appellate Division.

Argued Feb. 3, 1976.

Decided March 8, 1976.

Leonard Finkelstein, Old Bridge for plaintiff-appellant (Heilbrunn, Tabman, Josephs, Finkelstein, Heilbrunn & Garruto, Old Bridge, attorneys, Martin W. Yazgier, Old Bridge, of counsel and on the brief).

Allen C. Mathias, Newark, for defendant-respondent (Stevens & Mathias, Newark, attorneys).

Before Judges KOLOVSKY, BISCHOFF and BOTTER.

The opinion of the court was delivered by

BISCHOFF, J.A.D.

Plaintiff appeals, pursuant to leave granted, from an order denying her application for leave to take a videotape deposition of a treating physician in New York for use at trial.

Plaintiff instituted this action to recover damages for injuries sustained in an automobile accident occurring January 12, 1974. She received extensive treatment for the injuries in New Jersey and in New York. In January 1975 plaintiff was admitted to the Beth Israel Hospital in New York City under the care of Dr. Jacob J. Graham. He performed extensive tests upon her, including a spinal tap, a myelogram, and a lumbar spinal puncture. He also performed and operation upon her which involved a bone graft and a cervical fusion of C--3 to C--6. She continues under his care and at the time of filing the papers in this appeal she was then confined in the same hospital in New York. The possibility of future surgery presently exists.

Causal relationship between the accident of January 12, 1974 and either the plaintiff's present physical condition or the treatment which she has received, is not conceded by defendant.

Dr. Graham resides and practices medicine in New York. He is unwilling to come to New Jersey to testify in court, though he is willing to be deposed in New York on videotape.

Plaintiff moved for an order to take the doctor's deposition by videotape in New York for use at the time of trial. The only objection interposed by defendant to plaintiff's application before the motion judge was that defendant did not have the facilities to view the videotape. The judge expressed the view that he did not have the authority to direct that a videotape deposition be taken. He stated, 'I can suggest that it be used in addition to the deposition being taken in the formal fashion, but that's all I can do.' He did order that the deposition of Dr. Graham be taken in New York City but denied the application for the use of videotape.

Videotape is neither new nor can it be considered an experimental electronic novelty. Its use in conjunction with television is part of our contemporary scene. The use of videotape as an instructional aid in classrooms, to monitor scientific experiments, to control industrial operations, and as a security device in banks and other public places is well recognized and accepted by the public.

We are of the opinion that we should not reject its use as part of pretrial discovery or trial procedure, unless some rule expressly precludes its use.

R. 4:14--3(b) provides:

The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by some one acting under his direction and in his presence, record the testimony of the witness. The testimony shall be recorded and transcribed on a typewriter unless the parties agree otherwise.

Defendant argues that this rule limits the method by which depositions may be taken.

At oral argument before us plaintiff indicated a willingness to take the deposition in formal fashion and, in addition, to assume the cost of a contemporaneous videotape of the proceeding.

Defendant argues that it is beyond the power of this court to authorize such a procedure, for were we to do so we would be usurping the rule-making power which is vested exclusively in the Supreme Court. In re Pfizer, 6 N.J. 233, 78 A.2d 80 (1951); Liberty Title & Trust Co. v. Plews, 6 N.J. 28, 77 A.2d 219 (1950); Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406 Cert. den. 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950).

We disagree. R. 4:14--3(b) provides a basic procedural safeguard. It does not prohibit innovative procedures so long as the basic protection provided for all parties is preserved. ¹

Rules of discovery are to be liberally construed. Huie v. Newcomb Hospital, 112 N.J.Super. 429, 271 A.2d 607 (App.Div.1970). The broadest possible latitude should be accorded them. Myers v. St. Francis Hospital, 91 N.J.Super. 377, 385, 220 A.2d 693 (App.Div.1966).

While neither the rules on discovery nor the Rules of Evidence make specific reference to motion pictures their use in court, if relevant and properly authenticated, is now well-recognized, Balian v. General Motors, 121 N.J.Super. 118, 296 A.2d 317 (App.Div.1972), certif. den. 62 N.J. 195, 299 A.2d 729 (1973), and this is so whether they depict a scientific experiment, Balian v. General Motors, supra, or involve surveillance movies of an injured plaintiff in an attempt to discredit testimony taken as to the extent of disability. Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976).

We perceive no basic distinction between the use of movies and videotape as part of either pretrial or trial proceedings. The requirement that a videotape deposition be accompanied by a formal stenographic record, unless waived, will protect defendant from the expressed fears of mechanical failure, hazy visual reproduction or inaudible sound and will protect against fraudulent or inadvertent omissions. Since the use of videotape is not expressly prohibited by the Rules of Court, we see no...