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August 20, 1987

David C. Reber and Pamela D. Reber
General Motors Corporation and West Fall GMC Truck, Inc.

The opinion of the court was delivered by: TROUTMAN


 In this products liability action, plaintiff David Reber alleged that the cab of the tractor-trailer which he was driving was not "crash-worthy", resulting in a severe injury to his shoulder when he contacted an air-conditioning unit inside the cab after the truck jackknifed on an icy road. The cab was manufactured by General Motors Corporation in the 1980 model year and sold to Reber's employer, Yellow Freight, by West Fall GMC Truck, Inc. Plaintiff alleged that his injury occurred because the air conditioning unit was too close to the driver's seat, allowing his shoulder to come into contact with its sharp corner and sustain a rotator cuff tear.

 At the conclusion of the trial, the Court entered a judgment for the defendant upon the jury's finding, in response to interrogatories, that the GMC tractor was not defective when it left the control of defendant General Motors Corporation. Plaintiff filed a timely motion for judgment n.o.v. *fn1" or a new trial, contending that certain errors by the Court led the jury to reach a verdict contrary to the law and the evidence. Inasmuch as our review of the record has convinced us that the plaintiffs' assertions of error are incorrect or, in any event, did not affect the outcome of the trial, the motion will be denied.

 The specific location of the air-conditioning unit within the truck cab was vigorously contested at trial. Plaintiffs presented evidence that other 1980 tractor cabs, as well as those manufactured in prior and subsequent years, had air-conditioning units located within seven - eight inches of the driver's seat. Plaintiff David Reber also testified that the vehicle he was driving when the accident occurred had the air conditioner in that position. Conversely, defendants sought to establish that the vehicle involved in the accident had an air-conditioning unit located approximately fifteen inches from the driver's seat, where it was unlikely that the driver could have come into contact with it as a result of the accident in which the plaintiff was involved.

 Plaintiffs' only contention of error that goes directly to the issue of the existence of a defect, upon which the verdict was based, is that the Court should not have permitted the jury to see a videotape of the vehicle involved in the accident, with the air conditioner far to the right of the driver's seat, because it had been shot three years after the accident. By that time, concededly, the interior of the cab had been completely replaced. Defendants presented documentary and testimonial evidence, however, from which the jury could have inferred that the air-conditioning unit was installed at the same place in the repaired cab as it was prior to the accident. Thus, there was sufficient foundation for showing the videotape of the cab with the interior in the condition for which defendants contended.

 Plaintiff also argues that he should have been permitted to show a videotape of truck cabs with the air conditioner positioned just to the driver's right. Plaintiff was permitted to show the jury numerous still photographs of different GMC truck cabs, some of them from different model years, with the air-conditioning units in the position plaintiff testified it was on the day of the accident. (See, e.g., Plaintiffs' Exh. 1-10). Further, the Court permitted a jury view of a truck cab which plaintiff contended came off the assembly line at about the same time as the truck involved in the accident and which had the air-conditioning unit placed close to the driver. Jurors were permitted to, and did, climb into the truck cab and reenact plaintiff's version of how the injury occurred. Consequently, we conclude that showing plaintiff's videotape would have been merely cumulative. Refusal to do so, therefore, was not error.

 Plaintiffs' second contention of error, that the Court permitted the defendants to use the videotaped testimony of a witness whom the plaintiffs contend was available to testify in court as a live witness, does not even directly address the issue upon which the jury verdict was based.

 Just prior to the trial date, plaintiffs took the videotaped deposition of Dr. Charles McCrae, an orthopedic surgeon who treated plaintiff for impingement syndrome. Plaintiff developed the impingement syndrome, defined as a compression of the rotator cuff between the shoulder blade and the upper arm bone, after a subsequent accident. He alleged, however, that it would not have occurred absent the prior rotator cuff tear, and thus that it also resulted from the jackknife.

 Dr. McCrae was not expected to be within one hundred miles of the courthouse at the time of trial. The doctor had returned, however, by the time defendants proposed to use the videotaped deposition at trial. Plaintiffs, in the meantime, had decided to forego the doctor's testimony entirely.

 During the cross-examination of the witness on the videotape, defendants' counsel asked him to describe the cause of a rotator cuff tear, the primary injury alleged to have resulted from the accident. The witness replied that the injury occurs as a result of falling on an outstretched arm. (Defendants' Brief in Opposition to Plaintiffs' Motion Doc.#59, Exh. C at 13). That opinion was completely different from the one expressed by the physician who treated the plaintiff for the rotator cuff tear and testified as his medical expert at trial. Defendants used the videotape deposition as part of their evidence to negate the plaintiffs' theory of causation of the injury.

 Plaintiffs contended at trial and now contend that the Court should have compelled defendants to produce the witness for live testimony when it was established that he was in the area. When contacted, the doctor indicated that he was not available to testify because of a heavy surgical schedule. Defendants contended that the doctor should not be compelled to appear in court after the trial deposition had been taken and it was understood that he would have no further obligation to testify. (N.T. of 7/21/86 at 31). After an in camera view of the tape, the Court permitted the videotape to be shown to the jury during the defendants' case. We found that there were special circumstances, viz., the doctor's busy schedule following his return and the admitted expectation that the videotape would, when filmed, be used at trial. We concluded that these considerations warranted its use in the interest of justice and judicial economy, as permitted by Fed. R. Civ. P. 32(a)(3)(E).

 While that rule, understandably and properly, cautions the Court to give due regard to "The importance of presenting the testimony of witnesses orally in open court", id., we are still of the opinion that the use of the deposition was proper under the circumstances. Importantly, the parties had unconditionally agreed, after initial objections by the defendants had been resolved, to present the doctor's testimony by means of videotape. Had the doctor been unavailable under Rule 32(a)(3)(E), plaintiffs could have had no basis for objecting to defendants' use of the taped testimcny at trial, nor could they have complained had the defendants compelled the doctor's live testimony. Feingold v. SEPT, 339 Pa. Super. 15, 488 A. 2d 284 (1985). In that instance, of course, defendants could have established the doctor's relationship to the plaintiffs, as well as his opinion as to the cause of a rotator cuff tear. The defendants thus lost certain advantages by using the taped testimony.

 Moreover, while the rule regulating the use of depositions at trial makes no such distinction, we are convinced that videotaped testimony prepared specifically for use at trial mitigates the concerns militating against the use of depositions in lieu of live testimony. First, although the witness is not physically present in the courtroom, the jury has the opportunity to observe his manner and hear his voice during the testimony. Second, the witness is questioned just as he would be at trial by counsel for both parties. It must be remembered that the deposition was originally taken as a trial deposition for use at trial and was, therefore, ultimately used as agreed by the parties.

 The plaintiffs' principal complaint is that Dr. McCrae, who became the defendants' witness, was examined as if he were the plaintiffs' witness as, indeed, he originally was. Plaintiffs contend that they were prejudiced thereby in that they did not have the opportunity to cross-examine. Conversely, the defendants, because they had the witness on cross-examination, had the opportunity to adduce testimony by way of leading questions. Thus, the witness was not questioned as he would have been had plaintiffs decided not to summon him as a witness and defendants had elected to do so. We find this contention unpersuasive. It was understood that the witness would testify with all objections made and preserved for ruling at trial. Plaintiffs objected to the defendants questioning the witness as to the cause of a rotator cuff tear, but he answered the question subject to having the testimony stricken if the objection was sustained. Similarly, when plaintiffs' counsel heard the adverse testimony, he could then have declared the witness hostile and proceeded as if ...

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