Videotaped Expert Witness Testimony Before the Industrial Accident Board

By Kimberly A. Harrison, Esq.*

The Delaware Industrial Accident Board's Rule 10 provides instruction and guidance regarding the use of deposition testimony at hearings. Fact witnesses are not permitted to testify by deposition without approval from the Board under Industrial Accident Board Rule 10(C). However, expert witnesses, including doctors, may be deposed in advance of hearings to avoid the doctor appearing live before the Board.

Pre-deposition hearings are by far the most popular method of introducing expert medical testimony to the Board for several reasons.

First, from a scheduling perspective, hearings often do not proceed as planned, either due to the Board's calendar, or the illness of a party, counsel or witness. Therefore, the already substantial cost of having a doctor testify stands a good chance of being increased by time spent by the doctor waiting for his or her turn to testify at the hearing itself. If that same hearing were then postponed, these costs would again be incurred when it was rescheduled. Second, the schedules of expert witnesses are also difficult to work around as doctors generally have appointments scheduled months in advance. Scheduling live testimony for a doctor would require that a portion of the day be reserved by both the doctor and the Board. As a result, if a case settles in advance of the hearing, the cancellation fees for the medical experts are often significantly higher than they are currently for depositions.

Consequently, it has become the norm for expert medical witnesses to be deposed in advance of the hearing and for the transcript of the deposition to be presented to the Industrial Accident Board per Board Rule 10(A) and (E). However, a new twist may have been added to workers' compensation practice due to a recent Superior Court decision regarding the use of expert witnesses by deposition.

In Tibbits v. United Parcel Service, 2013 Del. Super. LEXIS 128 (Del. Super. Mar. 28, 2013), the Superior Court reversed the Industrial Accident Board, finding that the Board did not properly interpret the testimony and medical opinions of the treating physician. The court's opinion provided an analysis of the ways that expert testimony is presented to the Board. The opinion criticized the fact that such a presentation is typically done by written deposition transcript and summarized by the presenting party at the hearing. The court noted that it is the Industrial Accident Board who must evaluate the credibility of the witnesses who testify before it and emphasized that this important responsibility is made more difficult when the expert testimony is presented through a deposition transcript and an oral summary from the introducing party. The Superior Court did not go so far as to state that expert testimony should be presented through live witnesses. However, the opinion recognized that videotaped depositions are now the norm before other courts and administrative agencies. Testimony presented in this manner would allow the Board to better assess the credibility of the expert witness by permitting them to see and hear the expert. The court suggested that the Industrial Accident Board should require that expert testimony be presented in this manner.

Requiring videotaped deposition testimony for Industrial Accident Board hearings would result in increased expenses and create scheduling issues for both parties. The most noticeable effect would be an increase in the cost of obtaining expert witness testimony. Employers are certainly in a better position to afford the increased fees charged by the doctor, court reporter and videographer. However, claimants are likely to have much more difficulty absorbing those fees. Many law firms do not advance fees and costs to experts on behalf of their clients. Furthermore, should the claimant succeed before the Board, the employer would be responsible for reimbursing fees and costs.

Presenting video deposition testimony of expert witnesses would also impact the length of hearings. When medical testimony is presented by written deposition transcript and summarized by the presenting party, the summary generally takes less time than the actual deposition. Industrial Accident Board Rule 10(G) does require that a written transcript be submitted with videotape depositions. However, regardless of whether the parties submit a written transcript, the Board would need to watch some, if not all, of the videotaped deposition to assess the credibility of the expert. Whether the videotaped testimony would need to be played in its entirety during the hearing, or if a summary could be presented by counsel, with the Board watching the video at the conclusion of the hearing, remains to be seen.

Presentation of expert testimony before the Delaware Industrial Accident Board through videotaped deposition may very well become the norm. As the Superior Court states, there have been many technological advances over the last decade that permit expert testimony to be presented in a way that will allow the Industrial Accident Board to properly assess the credibility of such experts. How this procedurally "shakes out" and its affect on litigants are two issues to follow in Delaware workers' compensation cases.

*Kim, special counsel in our Wilmington, Delaware, office, can be reached at 302.552.4361 or kaharrison@mdwcg.com.

Defense Digest, Vol. 19, No. 3, September 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.