February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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In Pennsylvania, Facial Expressions Matter

A Pennsylvania court recently addressed whether a deponent could be compelled to remove a face mask during his deposition after the deponent refused, citing health concerns.  After rescheduling the deposition once, plaintiff’s counsel asked the Court to order the deponent to testify maskless given that he would be doing so alone in a room with an unmanned camera taping him.

Judge Charles H. Bradford in the Court of Common Pleas of Lebanon County, Pennsylvania compelled the deponent to remove his mask, finding the refusal unreasonable given the minimal risks of COVID-19.  The case is Espinosa v. Luthercare, et al., Case No. 2019-02130 (Pennsylvania Court of Common Pleas, Lebanon County, July 28, 2021).

Emphasizing that finders of fact must be able to assess the credibility of testifying witnesses, Judge Bradford noted that one of the key tools to doing so is the ability to evaluate the facial expressions of witnesses.  Judge Bradford held “sometimes, facial expressions that accompany verbal testimony are of critical importance in assessing whether somebody is unsure, or perhaps even lying.”  On balance, affording finders of fact the ability to view testifying witnesses’ facial expressions outweighs concerns of COVID-19 exposure, especially when other preventative measures are taken.

In light of the ongoing pandemic, courts continue to take protective measures within reason, striking a balance between safety and traditional practices.  And while courts permit parties to think creatively to develop balanced solutions, wearing a mask while testifying alone in a room at a video-deposition serves no reasonable medical purpose and will not suffice.

Jackson Lewis P.C. © 2023National Law Review, Volume XI, Number 229

About this Author

Michael J. Roche Jr Attorney Workplace Law Jackson Lewis Pittsburgh

Michael J. Roche Jr. is an associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Michael served in the Pennsylvania Air National Guard, an experience providing him a core set of disciplines, assets in his legal practice.

He focuses on representing employers in workplace law matters, including pre-litigation claims and litigation, as well as preventive advice and counseling. Michael attributes his working closely with clients to successfully litigating matters on their behalf before state and federal courts...

Marla Presley, Employment Labor Litigation Attorney, Jackson Lewis Law Firm
Principal and Office Litigation Manager

Marla N. Presley is a Shareholder in the Pittsburgh, Pennsylvania office Jackson Lewis P.C. Prior to joining Jackson Lewis, Ms. Presley was a litigation attorney at both a regional and national law firm, concentrating in the field of labor and employment litigation, including individual and collective action discrimination and wage and hour claims.

Ms. Presley’s practice is focused exclusive on the representation of employers in employment related litigation before administrative agencies and courts on both the state and federal levels. Ms....

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