Tucker v. Cascade General, Inc. et al

Filing 313

ORDER on OBJECTIONS TO WITNESS TESTIMONY - Tucker's Amended Witness List 291 and Defendant's Final Witness List 274 . IT IS SO ORDERED. DATED this 23rd day of April, 2014, by United States Magistrate Judge John V. Acosta. (see attached 8-page order) (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

3:09-cv-1491-AC

PHILIP TUCKER and TONI HOTTEN,
Plaintiff,

ORDER ON OBJECTIONS TO WITNESS
TESTIMONY

v.
CASCADE GENERAL, INC., an Oregon
corporation; and UNITED STATES OF
AMERICA,
Defendants.
ACOSTA, Magistrate Judge:
This Order addresses the patties' proposed witness testimony, which appear in the court file
as Docket No. 291 (Tucker's Amended Final Witness List), and Docket No. 274 (Final Witness List
of Defendant, United States of American). The coutt issued a separate order containing its ruling
on the patties' respective motions in limine. To the extent the patties made objections to the
proposed witness testimony that fall within the scope of the motions in limine, the pmties are

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directed to consult the court's rulings on those motions. In the event of a conflict between the
court's ruling on the motions in limine and the court's ruling on the motions in limine control.

I.

Phillip Tucket·'s Witnesses
A.

David Adler, };/D.

The govemment's objections to testimony by David Adler, M.D., are detailed in the United
States' Motion in Limine No. 9C.

RULING:

B.

SUSTAINED, in part, and OVERRULED, in part, in accordance with
the court's ruling on the United States' Motion in Limine No. 9C.

Christopher Clement

The government's objection to Christopher Clement's testimony is detailed in the United
States' Motion in Limine No. lOB.

RULING:

C.

OVERRULED in accordance with the court's ruling on the United
States' Motion in Limine No. lOB.

Danielle L. Erb, lv!D.

The govemment's objection to testimony by Danielle L. Erb, M.D., is substantially similar
to the objections stated in Tucker's Exhibit No. 318 and are detailed in the United States' Motion
in Limine No. 9A.

RULING:

D.

SUSTAINED, in part, and OVERRULED, in part, in accordance with
the court's ruling on the United States' Motion in Limine No. 9A.

Anne l'vfarie Hamburg, MD.

The government's objections to testimony by Anne Marie Hamburg, M.D., are detailed in
the United States' Motion in Limine No. 9D.

RULING:

OVERRULED in accordance with the court's ruling on the United
States' Motion in Limine No. 9D.

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E.

William Kelley

The government's objections to the testimony of William Kelley are detailed in the United
States' Motion in Limine No. lOC.

RULING:

F.

OVERRULED in accordance with the court's ruling on the United
States' Motion in Limine No. lOC.

Jaime Nicacio, MD.

The govemment's objections to testimony by Jaimie Nicacio, M.D., are detailed in the United
States' Motion in Limine No.9B.

RULING:

G.

SUSTAINED, in part, and OVERRULED, in part, in accordance with
the court's ruling on the United States' Motion in Limine No. 9B.

John Reski, MD.

The government's objections to testimony by John Reski, M.D., are detailed in the United
States' Motion in Limine No. 9E.

RULING:

H

SUSTAINED, in part, and OVERRULED, in part, in accordance with
the court's ruling on the United States' Motion in Limine No. 9E.

lvfitchell Stoller

The govemment's objections to testimony of Mitchell Stoller are detailed in the United
States' Motion in Limine No. lOD, and the United States' Response to Plaintiffs Motion to for
Leave to Perpetuate Testimony for Trial.

RULING:

l

OVERRULED in accordance with the court's ruling on the United
States' Motion in Limine No. lOD.

Douglas Wolff

The government's objections to testimony ofDouglas Wolf are detailed in the United States'
Motion in Limine No. 1OA.

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RULING:

II.

OVERRULED in accordance with the court's ruling on the United
States' Motion in Limine No. lOA.

United States' Witnesses
As a preliminmy matter, Tucker objects to deposition testimony offered for any witness who

is available, whether called or not. The United States acknowledges deposition testimony offered
at trial must comply with FED. R. CIV. P. 32. In accordance with its prior rulings in this case, the
comt will require the patties to satisfY the requirements of Rule 32, prior to offering deposition
testimony at trial.

A.

Ralph Banse-Fay

Tucker objects to the testimony of Ralph Banse-Fay insofar the United States intends to offer
testimony concerning the parties' intent regarding the contractual indemnity clause, and the
"requirement" for Cascade General, Inc. to follow the Corps safety manual and federal regulations.
The government states it has no intention of eliciting testimony from Banse-Fay as to his
subjective understanding or interpretation of the contracts, which have been admitted in evidence
without objection.

RULING:

B.

SUSTAINED in accordance with the court's ruling on the United States'
Motion in Limine No. 8.

She1yl Carrubba

Tucker objects, as not relevant, to the testimony ofShe1yl Canubba insofar as she attempts
to establish the "defense of the realm".
The government determined it is unnecessary to call Carrubba at trial.

RULING:

OVERRULED as moot.

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C.

Thomas Dyer (Deposition Testimony)

Tucker objects to any testimony proffered by the United States of Thomas Dyer, one of
Tucker's expert witnesses. Tucker further requests if the United States is permitted to call Dyer, the
government be ordered to reimburse Tucker for all fees and costs he incuned associated with Dyer.
Dyer lives in Seattle, Washington, and thus is beyond the subpoena power of the court, i.e,
outside this District and more than 100 miles from court. The United States explains that Tucker
formally disclosed Dyer as a testifying expett and, accordingly, his testimony is subject to FED. R
Evm. 703. Moreover, Tucker, filed as pmt of the official court record, the summmy of Dyer's
testimony and a copy of his expert report. Dyer's sworn deposition testimony was taken on April
6, 2012, and the United States paid Dyer $1,080 for his time in deposition at his notmal hourly rate
pursuant to the requirements of FED. R. CIV. P. 26(b)(4)(E).
RULING:

OVERRULED. The United States established a proper basis for use of
deposition testimony under Rule 32(a)(4)(B); and complied with the
requirements of Rule 26(b)(4)(E). Finally, a party may use for any
purpose the deposition of an "unavailable witness." FED. R. CIV. P.
32(a)(4). Moreover, the use of deposition testimony at trial under Rule
32(a)(4) is a recognized exception to the hearsay rule. Nationwide Life
Ins. Co. v. Richards, 541 F.3d 903,913 (9th Cir.2008). Thus, if testimony
of an unavailable witness is properly admitted under Rule 32(a)(4), it
need not also meet the requirements for admissibility under Rule 804(b).
I d. Nor is the government required to reimburse Tucker for Dyer's fees.

D. Dr. David C. Spencer (Deposition Testimony)
Tucker objects to Dr. David C. Spencer's testimony introduced via deposition, rather than
live. The United States informed the court it plans to call Dr. Spencer live at trial.

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Additionally, Tucker objects for lack of foundation and relevance to Dr. Spencer testifYing:

Q.

BY MS. FRANKEN: Would you agree with me that methamphetamine could
also trigger a seizure in someone with an underlying - underlying tendency
towards seizure activity?

MR. CAREY: Same objection.
THE WITNESS:

I'd agree with that.

(Cross talk.)
THE WITNESS:

Sony. I would agree with that.

Finally, by his objection to Dr. Spencer's testimony, Tucker offers Exhibits 602 (Invoice),
608 (Independent Neuropsychological Evaluation by Atthur D. Williams, Ph.D.) and 609
(Independent Medical Evaluation by James C. Rockwell, M.D.). The United States objects to
Tucker's proposed Exhibit 602 as irrelevant. With regard to proposed Exhibits 608 and 609, the
government objects because neither Dr. Williams nor Dr. Rockwell were disclosed pursuant to Rule
26(a)(2), and neither exhibit was listed on Tucker's final exhibit list.
RULING:

E.

SUSTAINED in accordance withe court's ruling on Tucker's Motion in
Limine No.2. OVERRULED as moot regarding Tucker's objection to
Dr. Spencer's testimony by deposition. The government will call Dr.
Spencer at trial. Finally Tucker has withdrawn his request to offer
Exhibits Nos. 602, 608, and 609.

Douglass Wolff (Deposition/Video Testimony)

First, Tucker objections to the video testimony of Dr. Douglas Wolff on the ground it calls
for legal conclusions. The United States responds that Wolff, designated as an expe1i by Tucker,
was a naval architect who used the relevant Code of Federal Regulations as part of his regular job
duties. The government contends Wolff was not being asked to testifY as an attomey, but as an

6 - ORDER: OBJECTIONS TO WITNESS TESTnv!ONY

expert who was required to use, understand, and adhere to the specified CFRs in order to perform
his regular job duties.
Next, Tucker objects to testimony elicited by Michael Underhill, counsel for the United
States, by reading excerpts of deposition testimony from four witnesses to Wolff and asking Wolff
at the conclusion of each excerpt whether Underhill read the testimony"accurately". Tucker objects
to this testimony on the ground it is improper cross-examination and/or impeachment to read from
the deposition testimony of another witness to whom the expert witness being examined has never
talked to, reviewed the testimony of, or relied upon. Finally, if the comi overrules this objection by
Tucker, he proposes to offer cetiain testimony by Wolff.
The United States charges Cascade General, Inc. and Tucker pmposefully withheld from
Wolff cetiain case materials that go to the core of the liability issues in this case. According to the
government, the most critical of the withheld materials were depositions of percipient witnesses
whose testimony was detrimental to Cascade's and Tucker's respective cases. The United States
argues Wolff is an expert witness, subject to FED. R. EVID. 703, and he can consider what otherwise
would be excludable as hearsay. Moreover, an expeti can be asked if he considered cetiain facts in
rendering his opinion. Finally, the expeti can be asked hypotheticals once a foundation has been
laid; and he can be asked what his opinion( s) would be if he considered other facts previously not
considered. With respect to the proffered testimony here, the govemment contends it provided Wolff
with sworn, verbatim percipient testimony that laid a proper evidentiary foundation for the questions
concerning the witness' Rule 703 opinion testimony.

RULING:

OVERRULED regarding Tucker's objection to the video testimony of
Dr. Wolff on the ground it calls for legal conclusions. OVERRULED
regarding Tucl,er's objection to the video testimony of Dr. Wolff on the

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ground it is improper cross-examination and/or impeachment. Finally,
Tucker's request to offer certain testimony ofWolffin light ofthe court
overruling his objections to Wolff's testimony is granted as unopposed.
Nevertheless, all proffered testimony must comply with the Federal
Rules of Evidence.
IT IS SO ORDERED
DATED

this~H;yfof April 2014

\

c!Jt?;_

JOHN V. ACOSTA

'
United 'IStites Magistrate Judge

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