By Mike Curley

Law360 (July 13, 2020, 3:43 PM EDT) -- A New York magistrate judge has told a couple suing over a defective hip implant that they can't force a medical company's officers to meet in person for deposition, saying it presents too much risk in the age of COVID-19, when remote depositions are the "new normal."

In an order filed Saturday, U.S. Magistrate Judge Stewart D. Aaron shot down a bid by Jodi and Andre Rouviere either to force corporate representatives for Howmedica Osteonics Corp. to appear in person for deposition, or alternatively to delay the deposition until it was possible, saying the court would not make them risk exposure to a deadly disease.

"Conducting court proceedings remotely in the Southern District of New York has become the 'new normal' since the advent of the public health emergency created by the spread of the coronavirus and COVID-19. Indeed, Chief Judge [Colleen] McMahon currently is conducting a bench trial via Zoom in a patent case in our court," Judge Aaron wrote. "So too, conducting depositions remotely is becoming the 'new normal.'"

In addition, the judge said the current conditions making remote deposition necessary are likely to continue for "the foreseeable future" and holding off would in effect indefinitely delay discovery in the case.

In the suit, the Rouvieres allege that Jodi was injured after receiving a defective hip implant with parts manufactured by Howmedica and DePuy Orthopaedics Inc., which is also named as a defendant in the suit. The couple is represented by husband Andre.

As of June, Judge Aaron said the case has already seen three extensions of discovery deadlines — some as a result of the pandemic — before the Rouvieres' current motion demanding that representatives of Howmedica give deposition in person. The Rouvieres stated they intended to travel from Florida to New Jersey to take that deposition.

Allowing in-person deposition presents "obvious" hardship to Howmedica's representatives, the judge said. Judge Aaron wrote that social distancing does not guarantee a safe environment for deposition and putting the witness, counsel and stenographers in the same room puts everyone at risk.

While the Rouvieres argued that they would be prejudiced by the "document intensive" and "document laden" remote deposition, the judge said this is not an obstacle as courts have found ways to manage exhibits in remote depositions and there are plenty of tutorial videos that the plaintiffs can use to get acquainted and comfortable with taking such a deposition.

Judge Aaron however did recognize there might be some delays in taking the deposition and ordered that they would have up to eight hours instead of the usual seven.

The judge said the only other potential prejudice is that the plaintiffs' counsel would not be in the room to interact with and observe the demeanor of the witnesses, but a remote deposition may work better for that reason, Judge Aaron added. If the deposition is in person, everyone involved would have to wear masks. However, in a remote setting, they'd be free to see each others' faces, he said.

The judge gave the Rouvieres until Aug. 21 to complete the deposition by video.

Representatives for the Rouvieres, Howmedica and DePuy could not immediately be reached for comment Monday.

The Rouvieres are represented by Andre A. Rouviere of the Law Offices of Andre A. Rouviere.

DePuy is represented by Joseph G. Eaton, J.T. Larson and James F. Murdica of Barnes & Thornburg LLP.

Howmedica is represented by Kim M. Catullo and Paul E. Asfendis of Gibbons PC.

The case is Rouviere et al. v. DePuy Orthopaedics Inc. et al., case number 1:18-cv-04814, in the U.S. District Court for the Southern District of New York.

--Editing by JoVona Taylor.

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