February 4, 2026
WHITLOCK V. ALLSTATE FIRE AND CASUALTY CO. 635 F.Supp.3d 371 (ED PA. 2022)
Recently, a Federal Court Judge informed counsel three days before trial was to begin that no witness, including expert witnesses, would be permitted to testify via videotaped deposition, despite the Judge’s Policies and Procedures containing specific provisions for use of videotaped testimony and playback at trial.
This situation serves as a critical reminder that Federal Rules of Civil Procedure 43 and 32 strictly govern when videotaped or remote testimony may be used. Even where a judge’s written policies appear to allow it, attorneys must ensure they have established a sufficient factual and procedural basis for doing so. Failing to meet these requirements can lead to the exclusion of expert testimony, with potentially case‑dispositive consequences.
Background
Whitlock v. Allstate Fire and Casualty Co., 635 F.Supp.3d 371 (ED PA 2022) involved a basic underinsured motorist claim. Much of the court’s opinion focused on whether Allstate could present the case to the jury as a simple automobile accident case without disclosing that the Plaintiff sought insurance benefits. That request was denied. What followed, however, highlights a procedural issue that all attorneys must be cognizant of when litigating in Federal Courts.
As is the customary practice in Pennsylvania, both Plaintiff and Defendant videotaped their medical experts with the intent of replaying the video testimony for the jury. At the final Pretrial Conference, nineteen days before trial, the District Court directed the parties to submit briefs addressing whether the use of videotaped testimony satisfied the requirements of Federal Rules of Civil Procedure 43 and 32.
The parties were unable to convince the judge that the witnesses were unavailable to testify live or that “exceptional circumstances” justified the use of videotaped testimony at trial. As a result, the court ruled that the videotaped testimony of the doctors could not be used at trial. The case was marked settled six days later.
RELEVANT RULES OF FEDERAL CIVIL PROCEDURE:
USCS Federal Rules Civil Procedure – Rule 43: TAKING TESTIMONY
(a) IN OPEN COURT. At trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.
USCS Federal Rules Civil Procedure – RULE 32: USING DEPOSITIONS IN COURT PROCEEDINGS
(a) USING DEPOSITIONS.
(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition;
(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used.
Unlike Pennsylvania Rule of Civil Procedure 4020, which specifically permits the use of a physician’s deposition transcript, there is no comparable provision in the Federal Rules of Civil Procedure. Since this is a procedural rule, rather than a substantive one, the Federal Courts are not required to follow Pennsylvania practice when determining whether to allow the use of a doctor’s deposition at trial.
The Court’s Analysis
The District Court in Whitlock noted that the Third Circuit had not yet ruled on how FRCP 32 should be interpreted for expert testimony. The District Court also noted a split in authority on whether a physician’s busy patient schedule provided the necessary “exceptional circumstances” to allow the use of videotaped testimony.
The District Court noted that this was not a rule that could be waived by agreement of the parties. Like a jurisdictional argument, the use of videotaped testimony can be raised sua sponte by the District Court.
While all Federal Judges have policies and procedures in place regarding how to use videotaped testimony at trial, these directives do not address the question of when videotaped testimony can be used. One practicing in Federal Court cannot act under the assumption that there is a blanket approval of the use of videotaped testimony for expert witnesses.
Takeaways
Attorneys and clients must keep these rules in mind when in Federal Court or deciding on whether to remove a case to Federal Court. When in Federal Court, the attorney should keep the following in mind:
- Access the Judge’s position early. The initial scheduling conference offers a good opportunity to raise the issue. As this is an issue of discretion, the Judge’s view on this topic is valuable. If the rule will be enforced, plan accordingly.
- Subpoenas matter. Several decisions precluding expert testimony have noted that the doctor had not been subpoenaed or indicated a refusal to honor a subpoena to testify live.
- Develop a factual record. “The doctor has a busy schedule” may not be enough. Analysis should include how far in advance patients need to be scheduled, the disruption on the practice especially in the event of settlements, last moment postponements, and the different time commitments between a video and live testimony.
- Consider public policy. The Pennsylvania Rules of Civil Procedure may be cited as a statement of Pennsylvania public policy that doctors should spend more time tending to patients instead of sitting in Court.
During COVID, the courts became accustomed to remote hearings, videotaped testimony, and other technological tools to limit the need to appear in court. There has been a general trend to reverse many of these policies in favor of the more traditional in-person court system. Whitlock could signal a trend to significantly reduce the use of videotaped testimony at trial. The practitioner and clients should remember that live testimony is preferred and the use of videotaped testimony can be treated as a privilege that needs to be justified.
If you have questions, please contact Robert J. Foster at rfoster@regerlaw.com and Bradley J. Vance at bvance@regerlaw.com, or call 215-495-6500.