Summary
holding that the plaintiff could use the deposition testimony of a settling defendant's expert at trial against a remaining defendant
Summary of this case from Gaudette v. Saint-Gobain Performance Plastics Corp.Opinion
89 Civ. 2999 (JSM)(AJP)
January 27, 2000
OPINION AND ORDER
The issue in the motion presently before the Court is whether one party (here, plaintiff) can use the deposition testimony of another party's expert (here, that of a defendant who since has settled out) against a remaining adverse party (here, a remaining defendant) under Rule 32(a)(3)(B) of the Federal Rules of Civil Procedure where the expert lives and works over 100 miles from the courthouse. For the reasons discussed below, because Rule 32(a)(3)(B) does not make any distinction between use of depositions of fact and expert witnesses and there are no special circumstances here justifying an exception to Rule 32(a)(3), defendant Norton's motion to preclude plaintiff's use of the expert's deposition testimony is DENIED.
BACKGROUND
Defendant Robert E. Norton moves the Court to preclude plaintiff (also known as the "Liquidator") from offering at trial the deposition testimony of an expert, Robert D. Lenk. Lenk had been retained by certain retrocessionaire co-defendants in the action who have since settled with the Liquidator. (Oller Aff. 6 6; Norton Br. at 2; Liquidator Br. at 5-6.) Counsel for all parties, including the Liquidator and Norton, participated in the Lenk deposition over several days in August 1994. (Norton Br. at 2 n. 2; Liquidator Br. at 3-5; Norton Reply Br. at 4-5; Oller Aff. 6 6 Ex. A: Lenk Dep. Excerpts.) It is also undisputed that Lenk lives more than 100 miles from the courthouse. (E.g., Oller Aff. Ex. C: 9/24/99 Conf. Tr. at 17-18.)
Norton's opening brief on this motion focused on proving that Lenk was an expert and that his testimony was expert opinion testimony, not observed facts or lay opinion. (Norton Br. at 2-4, 6-7.) Norton's brief pointed to the many places in Lenk's deposition in which he explicitly testified as to his opinion on a particular subject. (See Norton Br. at 2-4.) Norton was responding to the Liquidator's arguments — that Lenk's testimony was not expert testimony — at the pre-motion conference before the Court on September 24, 1999 prior to the submission of the formal motion. (See Oller Aff. Ex. C: 9/24/99 Conf. Tr. at 5, 12.) In a subsequent appearance before the Court, however, after submission of Norton's moving brief, the Liquidator changed tack and conceded that Lenk was indeed an expert witness. (See 11/30/99 Tr. at 31.)
ANALYSIS
Rule 32(a)(3)(B) of the Federal Rules of Civil Procedure explicitly provides that a witness's deposition may be used "by any party for any purpose" if the witness is more than 100 miles from the place of the trial. Fed.R.Civ.P. 32(a)(3)(B). When deposition testimony is offered in evidence pursuant to Rule 32(a), the rules of evidence are "applied as though the witness were then present and testifying." Fed.R.Civ.P. 32(a). Neither Rule 32(a)(3)(B) on its face nor the Advisory Committee Notes distinguish between depositions of fact and expert witnesses. Norton cites to no case establishing a blanket exception to Rule 32(a)(3)(B) for depositions of expert witnesses.
The main federal practice treatises, Wright Miller and Moore's, do not discuss any difference between fact and expert witnesses under Fed.R.Civ.P. 32(a)(3)(B). See generally 8A Charles Alan Wright, Arthur R. Miller Richard L. Marcus, Federal Practice Procedure § 2146 (2d ed. Supp. 1999); 7 James Wm. Moore, Moore's Federal Practice §§ 32.22-32.28 (3d ed. 1999).
Indeed, although the case law in this area is sparse, courts have permitted the admission of expert testimony by deposition. See, e.g., Alfonso v. Lund, 783 F.2d 958, 960-61, 962 (10th Cir. 1986) (no abuse of discretion where district court permitted plaintiff to admit deposition testimony of his own expert doctor who was out of the country at the time of trial); Hydrolevel Corp. v. American Soc'y of Mechanical Eng'rs, Inc., 635 F.2d 118, 128 (2d Cir. 1980) (upholding plaintiff's use of deposition testimony of defendant's expert), cert. denied, 456 U.S. 989, 102 S. Ct. 2267 (1982); Savoie v. Lafourche Boat Rentals, Inc., 627 F.2d 722, 724 (5th Cir. 1980) (upholding trial court's admission, pursuant to Fed.R.Civ.P. 32(a)(3), of deposition testimony of an expert who was out of the country at the time of trial where deposition was taken by defendant Loffland and introduced at trial by co-defendant Lafourche; "Loffland suggests that discovery will be discouraged if `discovery' depositions of expert witnesses can be used at trial against the deposing party. Loffland cites no authority, and we know of none, in support of the proposition that discovery depositions may not be used at trial against the party who conducted them."); Pfeiffer v. Eagle Mfg. Co., 137 F.R.D. 352, 355 (D. Kan. 1991) (allowing deposition of expert to be taken and used at trial under Fed.R.Civ.P. 32(a)(3)); see also, e.g., Dean v. Watson, No. 93 C 1846, 1995 WL 692020 at *10 (N.D. Ill. Nov. 16, 1995) (permitting use of opposing party's expert's deposition testimony at trial as a party admission); United States v. Ten Cartons, more or less, Ener-B Vitamin B-12, No. CV 88-3000, 1993 WL 52225 at *1 (E.D.N.Y. Jan. 15, 1993) (same).
The paucity of case law is easily explained. In most cases, the party who hired the expert wants that expert to testify live at trial before the trier of fact, and so either hires a local expert or insures that its expert is willing to come to trial. The particular situation here — a party wishing to use a settling opposing party's expert's deposition against the remaining opposing party — is sui generis.
In any event, the Court's Opinion should not be read for the proposition that use of an expert's deposition testimony will be permitted at trial in every case where an expert deponent is unavailable. See, e.g., Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1410 (10th Cir. 1991) (district court "not automatically required" to admit expert deposition testimony where opposing party is unfairly surprised); In re Air Crash Disaster at Stapleton Int'l Airport, 720 F. Supp. 1493, 1501-03 (D. Colo. 1989) (using balancing test, where expert's unavailability was not due to illness or job commitments, court concludes that the need for expert's oral testimony "weighed heavily against admission under Rule 32"); Caron v. General Motors Corp., 643 N.E.2d 471, 474-76 (Mass.Ct.App. 1995) (citing federal cases).
Indeed, given the historical preference for live testimony and the strategy of limiting aggressive examination of opposing experts at depositions, a judge would be warranted in requiring live expert testimony despite Rule 32(a)(3)(B) under appropriate circumstances. Norton, however, has not suggested that it withheld any cross-examination during Lenk's deposition or that any special circumstances exist here which require an exception to Rule 32(a)(3)(B).
Cf. Napier v. Brosgard, 102 F.2d 467, 469 (2d Cir. 1939) (Hand, C.J.) ("The deposition has always been, and still is, treated as a substitute, a second-best, not to be used when the original is at hand.").
See, e.g., Peter L. Winik, The Big Picture: Strategies in Expert Depositions, 24 No. 3 Litigation 14, 17 (Spring 1998); Douglas K. deVries, Expert Deposition Strategies in Medical Malpractice Cases, 9 No. 2 Verdicts, Settlement Tactics 34, 35 (1989).
Finally, Norton also argues that Lenk's deposition testimony went beyond the scope of Lenk's expert report pursuant to Rule 26 of the Federal Rules of Civil Procedure. (See Norton Reply Br. at 5.) This would be a ground for exclusion if Lenk's testimony were being offered by the co-defendant who had hired Lenk and thus had control over Lenk's expert report. See, e.g., Ferriso v. Conway Organization, 93 Civ. 7962, 1995 WL 580197 at *1-3 (S.D.N.Y. Oct. 3, 1995) (Wood, D.J., affirming unpublished order by Peck, M.J.). The scope of Norton's original motion, however, was limited to whether Lenk was an expert and, if so, the admissibility of his deposition testimony under Fed.R.Civ.P. 32(a). A court need not consider a new argument raised for the first time in a reply brief. E.g., Playboy Enterprises, Inc. v. Dumas, 960 F. Supp. 710, 720 n. 7 (S.D.N.Y. 1997) (citing cases).
Determinations concerning the relevance of Lenk's testimony, its probative weight, and any objections under the Federal Rules of Evidence are left to the trial judge, Judge Martin.
CONCLUSION
Norton's motion to strike the Liquidator's designation of Lenk's deposition testimony for use at trial is DENIED.
Mr. Oller is to fax this Opinion and Order to all other counsel.
SO ORDERED.