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Blumberg v. Dornbusch

Decided: March 8, 1976.

VICTORIA BLUMBERG, PLAINTIFF-APPELLANT,
v.
BEATRICE H. DORNBUSCH, DEFENDANT-RESPONDENT, AND WALTER BLUMBERG, DEFENDANT



Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

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 an 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 ...


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