Rule 4020.Use of Depositions at Trial.

Official Note: : See the Pennsylvania Rules of Evidence for a broader statement of this rule.

Explanatory Note Except for minor stylistic amendments this Rule remains unchanged, except for a new subdivision (a)(5) permitting the use at trial of a deposition upon oral examination of a medical witness, other than a party, whether or not the witness is available to testify. The rising costs of obtaining the testimony at trial of medical experts and the inconvenience which may be caused to the medical witness and to his patients, have suggested relaxation of the require- ment that a medical witness who is available to testify must be produced at trial. The witness may have to appear a total of three times, first, at a deposition, second, at a compulsory arbitration hearing and third, at trial in the Common Pleas Court. Videotape Rule 4017.1(g) recognizes this hardship by permitting use at trial of the videotape depo- sition of a medical witness even if he is available to appear. Rule 1809(b) similarly provides that on a de novo appeal to the Common Pleas Court from a Health Care Arbitration Panel the deposition of any medical witness offered during arbitration shall be admissible whether or not the witness is avail- able at trial on the appeal. In fact, these two Rules go beyond the medical witness and give the same privilege to any ‘‘other’’ expert witness. To the contrary, subdivision (a)(5) is limited to medical witnesses. The Committee was concerned about the effect of the inclusion of ‘‘other experts’’ in this Rule which permits a deposition to be read at a trial in lieu of the appearance of a witness who is available to appear. The videotape situation is different. Here the jury or the court will see the witness and can observe his demeanor. Although there may be a reduction in the size of the image and the reproduction may not be perfect, it is a far cry from having someone read from a stenographic transcript the words of an absent person. The Health Care Services cases are also different. These are by definition medical malpractice cases. Here the issues are basically medical and majority of expert witnesses will be medical wit- nesses. Sometimes there will be issues which will need a non-medical expert witness, but these issues will necessarily be subordinate to the essential medical character of the trial. For example, an issue might be the construction and operating efficiency of a piece of hospital equipment or the purity of a drug which was administered. It is obvious that Rule 4020 is different from Rules 4017.1 and 1809(b). This Rule covers every kind of action at law or in equity. The types of experts and the nature of their testimony will be almost unlimited. These experts will have no ‘‘personal’’ problems like the physician, whose problems have been the justification for special treatment. The ‘‘other experts’’ may talk about real estate values, actuarial formulas, exploding bottles, concrete construction, security values, fire alarm systems, defec- tive steering assemblies, false signatures, urban planning, defective heating systems, ballistics and the endless list of topics which can be the focus of expertise in litigation. If these manifold experts do not appear on videotape, what special reason is there for the jury never to see them, if they are available to appear at the trial?