Bear in mind the case we advised you about final week the place the court docket shutdown plaintiff’s try to make use of non-mutual offensive collateral estoppel?  Effectively, that wasn’t that plaintiff’s solely loss that week.  In a companion determination, the court docket additionally rejected plaintiff’s try to make use of Federal Rule of Civil Process 43(a)’s distant trial testimony rule to skirt the jurisdictional limitations of Rule 45(c)(1).  Coblin v. Depuy Orthopaedics, Inc., 2024 WL 1357571 (E.D. Ken. Mar. 29, 2024). 

As we defined in our prior put up, this case was remanded from the hip implant MDL.  Throughout which quite a few reality witnesses had been deposed; together with, the 5 present and former staff of defendants who plaintiff subpoenaed to testify at trial remotely.  Not one of the witnesses reside or work inside 100 miles of the courthouse.  Subsequently, none fall inside the subpoena energy of the court docket pursuant to Rule 45(c)(1).  To be clear, meaning the court docket has no authority to compel these witnesses to seem at trial. 

Rule 43(a) offers:

For good trigger in compelling circumstances and with acceptable safeguards, the court docket might allow testimony in open court docket by contemporaneous transmission from a unique location.

What plaintiff requested the court docket to do is to learn Rule 43(a) as an enlargement of its subpoena energy below Rule 45.  Regardless of an unexplainable break up in district court docket choices on this difficulty, Coblin follows the Ninth Circuit determination in In re Kirkland, 2023 WL 4777937 (ninth Cir. Jul. 27, 2023), that we mentioned right here, which refused such an enlargement. 

Coblin acknowledges, as did the Ninth Circuit, that whereas at first look the 2 guidelines seem in battle, “upon nearer studying, nevertheless, the principles present two distinct and totally different directives.”  Coblin, at *2 (emphasis added).  Rule 45 governs whether or not the court docket can require a witness to testify at trial.  Rule 43 governs the “mechanics” of how trial testimony is introduced.  Subsequently, the primary query the court docket should reply is whether or not the witness has been correctly subpoenaed below Rule 45.  The court docket can’t compel how a witness will testify, “if it can’t first make sure the witness is inside the Court docket’s attain to compel.”  Id. A “textual studying” of the principles mandates this conclusion.  Id. (citing related choices). 

District court docket’s who’ve used Rule 43 to develop their subpoena powers to succeed in all the United States by way of fashionable distant capabilities, have accomplished so not solely by disregarding the textual content of the principles, but in addition disregarding the Advisory Committee Notes which state:

When an order below Rule 43(a) authorizes testimony from a distant location, the witness could be commanded to testify from anyplace described in Rule 45(c)(1).”

Fed. R. Civ. P. 45 (Advisory Committee’s Word, 2013 modification) (emphasis added).  This be aware leaves no room for doubt.  The geographical limits of Rule 45(c) apply to each dwell and distant testimony. 

The court docket acknowledges that circumstances reminiscent of Coblin, drug/machine litigation, are complicated; that typically courts want dwell witnesses; and that know-how has superior to the purpose the place distant testimonyis dependable and simple.  However “sensible sentiment” doesn’t imply the court docket can “ignore the plain edicts” of textual evaluation “for the sake of comfort.”  Id. at *3.  Because the court docket summarizes:

Rule 45(a)(2) states {that a} “[a] subpoena should difficulty from the court docket the place the motion is pending.” FED. R. CIV. P. 45(a)(2) (emphasis added). The upcoming trial is about for right here within the Japanese District of Kentucky. The Court docket can’t difficulty a subpoena that compels actions by a witness properly past its jurisdictional limits just because know-how has eased the sensible burdens. Federal courts stay one among restricted jurisdiction and sensible issues can’t drive the Court docket to disregard such basic rules.

Id.

In lower than a month, plaintiff goes to trial with out his non-mutual offensive collateral estoppel, with out his distant witnesses, and most certainly in want of a brand new plan.