A&C Catalysts, Inc. v. Raymat Materials, Inc.

Filing 97

ORDER RE DOCKET NUMBER 96 re 96 Statement filed by Raymat Materials, Inc.. Signed by Judge Alsup on December 19, 2014. (whalc1, COURT STAFF) (Filed on 12/19/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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A&C CATALYSTS, INC.,

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For the Northern District of California

United States District Court

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Plaintiff and Counter-Defendant,

No. C 14-04122 WHA

v.
RAYMAT MATERIALS, INC.,

ORDER RE DOCKET NUMBER 96

Defendant and Counter-Plaintiff.

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This order provides some background for defendant’s submission at docket number 96.

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A three-day bench trial occurred from December 15 through December 17.

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On December 15, Dr. David Dodds testified as an expert witness for plaintiff. Defendant then

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cross-examined Dr. Dodds at length. After Dr. Dodds’ testimony had concluded, defense

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counsel was asked whether Dr. Dodds would be called in the defense’s case. “No,” said

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defense counsel (Dec. 15 Trial Tr. 65) (emphasis added):

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Plaintiff’s counsel:

Your Honor, we don’t wish to retain him
[Dr. Dodds] for rebuttal.

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Court:

All right. So you’re free to stay — well,
you’re not going to call him in your
case, are you?

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Defense counsel:

No, sir. No, Your Honor.

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Court:

All right. So you’re free to stay on your
own dime, so to speak. Otherwise you
can go home, and we will hear no more
from Dr. Dodds; right?

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Plaintiff’s counsel:

Correct, Your Honor.

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Court:

You’re free to stay in the courtroom now
because you’re now back to being an
ordinary civilian. All right?

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Dr. Dodds:

Thank you, Your Honor.

Dr. Dodds was excused.
The last day of trial (December 17), defense counsel suddenly indicated that he wanted

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to present video clips from the deposition of Dr. Dodds. The key colloquy was as follows

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(Dec. 17 Trial Tr. 324–26, 362–63):

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Defense counsel:

I researched the issue. I have authority.
The current view is that’s called
sponsored party witness. Expert — if
expert is designated to testify or has
testified, their opinion has to be adopted
by the parties as the party opinions. So
it’s called sponsored witness and it’s
considered a party witness.

Court:

Show me that authority.

Defense counsel:

Okay. I have that.

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For the Northern District of California

United States District Court

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Court:

. . . . The question is whether or not he
[Dr. Dodds] should be deemed a party
witness for the purposes of the case, and
I would like to see the testimony —
I’m sorry, case law that Mr. Li
[defense counsel] is referring to. The
record will show that Attorney Li is
sitting at his chair peering at a computer
screen and tapping the keyboard. He
does not have the authority at his
fingertips, but I will give him a few
more minutes to try to find it.

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(Pause in the proceedings.)

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Defense counsel:

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Can I reconnect with the issue before we
play this? I guarantee, Your Honor,
I have the case law. Right now, it’s not
on my computer.

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Defense counsel:
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I have just these two video deposition
witnesses. And Your Honor, I couldn’t
find a case right now. My proposal,
Your Honor, is until we have an offer of
proof, give you the transcript, and then
tomorrow we file a little bench brief to
show Your Honor the authority. If you
overrule that, that’s fine, but if you think
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that authority is persuasive, then you
should deem that transcript admit.

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Plaintiff’s counsel:

Your Honor, both of these witnesses
testified live. Now, after Dr. Dodds has
completed his testimony, he’s been
excused, he’s flown home, A&C would
have no chance to do redirect. It’s
highly prejudicial to A&C, Your Honor.

Defense counsel:

It’s noticed on our designation, Your
Honor, on — it’s noticed on our witness
list.

Court:

All right. The answer is we are not
going to allow this deposition of the
other side’s expert to be played. And
under Rule 32, if I can find it here, the
issue is whether or not a hired gun
expert is a deposition of a party, agent,
or designee, and that’s got to be a party,
officer, director, managing agent or
other designee under Rule 30(b)(6) or
31(a)(4). And [Rule] 31(a)(4) is about
written questions and [Rule] 30(b)(6) is
a corporate designee. Now, I doubt it,
but was this expert witness designated
under either of those two rules?
Probably not.

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Plaintiff’s counsel:

No, Your Honor.

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Defense counsel:

They are sponsor-adopted party witness
under the prevailing law.

Court:

All right. You may have that point for
appeal. I disagree with that. A hired
gun expert is supposed to be an
independent witness who comes in to
tell the court or jury something about
specialized knowledge. They are
supposed to be, although paid for their
time, they are supposed to be
independent. They are not parties and
officer, director or managing agent of a
party, and so therefore, under Rule 32,
you are not entitled to do what you’re
trying to do. That’s the ruling. Your
point is preserved for appeal so long as
you — I recommend that you put the
material you were going to try to show
me in some kind of separate filing so it
will be there for the Court of Appeals to
review if they want to do that.

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For the Northern District of California

United States District Court

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Defendant then used up all of the remaining trial time. The record was closed on December 17.
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After the trial had concluded, on December 18, defendant filed docket number 96,

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relying mainly on Glendale Federal Bank, FSB v. United States, 39 Fed. Cl. 422, 425

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(Fed. Cl. 1997). In Glendale, the Court of Federal Claims found that a party could be tied to the

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statements made by its experts, meaning that the expert’s opinions could be used as an

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admission against the party that retained him under Federal Rule of Evidence 801(d)(2)(C).

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The deposition testimony of the defendants’ expert (the government’s expert) was allowed to be

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“used as admissions for any purpose on cross-examination that is relevant and within the scope

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of direct examination.” Id. at 426.

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Defendant’s brief also cited In re Hanford Nuclear Reservation Litigation, 534 F.3d
986, 1016 (9th Cir. 2008), where our court of appeals found that the district court did not err in

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For the Northern District of California

United States District Court

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denying plaintiff’s motion to exclude defendants from cross-examining plaintiff’s expert based

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on opinions that the expert provided for the same plaintiff in a prior related trial. The expert’s

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“testimony at the first bellwether trial was an admission of a party opponent under Federal Rule

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of Evidence 801(d)(2)(C).”

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Defendant’s reliance on Glendale and Hanford is misplaced. Here, defendant sought to

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play deposition testimony from Dr. Dodds (plaintiff’s expert) (1) after a live cross-examination

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of Dr. Dodds by defense counsel; (2) after Dr. Dodds had been dismissed by both parties;

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(3) during defendant’s case-in-chief; and (4) when plaintiff was not in a position to recall

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Dr. Dodds because he had been dismissed and traveled home.

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Accordingly, as stated on the record, defendant’s motion was DENIED. The pages from

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the deposition of Dr. Dodds appended to docket number 96 are NOT PART OF THE TRIAL

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RECORD.

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IT IS SO ORDERED.

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Dated: December 19, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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