Section 4020. Use of Depositions at Trial

(a) At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness, or as permitted by the Pennsylvania Rules of Evidence.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a party or a person designated under Rule 4004(a)(2) or 4007.1(e) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds

(a) that the witness is dead, or

(b) that the witness is at a greater distance than one hundred miles from the place of trial or is outside the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition, or that the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment, or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or upon application and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party, any other party may require the offering party to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Official Note:

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

(5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.

(b) Substitution of parties does not affect the right to use depositions previously taken; and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therein. A deposition previously taken may also be used as permitted by the Pennsylvania Rules of Evidence.

(c) Subject to the provisions of Rule 4016(b), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(d) A party shall not be deemed to make a person his or her own witness for any purpose by taking the person’s deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use of an adverse party of a deposition as described in subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.

The provisions of this Rule 4020 amended November 20, 1978, effective April 16, 1979, 8 Pa.B. 3551; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2281; amended November 28, 2000, effective January 1, 2001, 30 Pa.B. 6425. Immediately preceding text appears at serial pages (255422) to (255424).

Notation

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 requirement 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 deposition 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 available 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 witnesses. 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, defective 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?