LONG v. FAIRBANK FARMS INC et al

Filing 358

ORDER ON MOTION FOR RECONSIDERATION RE: Zirnstein Deposition Testimony denying 355 Motion for Reconsideration By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARGARET LONG,
Plaintiff,
v.
FAIRBANK RECONSTRUCTION
CORP.,
Defendant & Third-Party
Plaintiff,
v.
GREATER OMAHA PACKING
COMPANY, INC.,
Third-Party Defendant.

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ORDER ON MOTION FOR RECONSIDERATION
RE: Zirnstein Deposition Testimony
Before the Court is the Motion to Reconsider Order on Motion in Limine Re: Deposition
Designations (Docket # 355). The Motion is hereby DENIED.
By this Motion, GOPAC asks the Court to reconsider its prior order overruling GOPAC’s
general objection to Fairbank’s offering deposition testimony of Dr. Zirnstein at trial. Although
GOPAC’s prior objection was based on the assertion that Dr. Zirnstein would appear at trial as a
live witness, GOPAC now reports that on October 17, 2011 it informed Fairbank that it was
withdrawing Dr. Zirnstein as an expert and, as a result, he will not appear at trial.1 In light of this
factual change, GOPAC asserts Zirnstein’s deposition testimony is not an admission by a party
opponent under Federal Rule of Evidence 801(d)(2)(C). (See Recommended Decision at 20 & n.
18.)

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The Court notes that GOPAC made no effort to inform the Court of this change until it filed the present motion on
October 28, 2011.

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Fairbank responds that Zirnstein’s deposition may be used pursuant to Federal Rule of
Civil Procedure 32(a)(4)(B) or (D). So long as Fairbank can establish that Zirnstein is absent
from trial and that Fairbank has been unable to procure Dr. Zirnstein’s attendance, Fairbank may
seek to admit Dr. Zirnstein’s deposition testimony under the cited Federal Rules of Civil
Procedure and Federal Rule of Evidence 804(b)(1). Thus, assuming arguendo that GOPAC’s
withdrawal of Dr. Zirnstein as an expert for trial changes the analysis of whether his testimony
qualifies as an admission by a party opponent under Federal Rule of Evidence 801(d)(2)(C), this
change in circumstances opens the door to admitting Dr. Zirnstein’s testimony as the former
testimony of an unavailable witness.
Having reconsidered the issue based on the error of fact that was belatedly brought to the
Court’s attention, the Court hereby DENIES the Motion for Reconsideration.
In a footnote, GOPAC alternatively argues that the Court should at least exclude
testimony regarding the fact that Dr. Zirnstein was initially retained and designated by GOPAC.
In the Court’s assessment, this information is relevant to the issue of Dr. Zirnstein’s credibility
and otherwise admissible under Rule 403. Further, at this late stage, it appears impossible to
separate out from the questions and answers in the deposition Dr. Zirnstein’s connection to
GOPAC while still retaining any coherence to the deposition contents. Therefore, the Court will
allow testimony on this issue to the extent it is a part of the testimony previously designated by
Fairbank. To the extent that GOPAC will seek to counter designate portions of Dr. Zirnstein’s
deposition testimony for trial in light of this ruling, it must provide any counter designation to
Fairbank before the start of trial.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 31st day of October, 2011.

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