Wanke Cascade Distribution Ltd. v. Forbo Flooring, Inc.

Filing 203

ORDER on OBJECTIONS to IMPEACHMENT EXHIBITS Signed on 5/8/17 by Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

WANKE CASCADE DISTRIBUTION
LTD., an Oregon corporation,
Plaintiff,

Case No. 3:13-cv-768-AC
ORDER ON
OBJECTIONS TO
IMPEACHMENT WITNESSES

v.
FORBO FLOORING, INC., a Delaware
corporation,
Defendant.

ACOSTA, Magistrate Judge:
In the Jury Trial Management Order entered on August 1, 2016 (the “Order”), the court
directed the parties to file on or before February 24, 2017, a witness list and a detailed witness
statement of each witness’s expected testimony and estimated length of such testimony on direct.
With regard to impeachment witnesses, the parties were required to identify any witnesses they

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intended to call for impeachment purposes and provide a similar detailed witness statement directly
to the court. The court subsequently extended the February 24, 2017, deadline for filing witness lists
and statements to March 3, 2017. The Order also required the parties to file objections to witnesses
on or before March 24, 2017.
Forbo identified Mark Andrew Drozda, Raymond John Eppley, Terry Goodall, Brian Heagy,
Shawn William Loomis, Brian Radditz, and Dale Reimer as impeachment witnesses and provided
the court a detailed witness statement for each on March 3, 2017. On March 24, 2017, Wanke filed
detailed objections to Forbo’s witnesses totaling twenty-seven pages but failed to object to the
identification of the impeachment witnesses. At the May 3, 2017 pretrial conference, Wanke raised
objections to the impeachment witnesses for the first time. Wanke seeks to limit the testimony of
these impeachment witnesses to impeachment evidence only.
I. Use of Impeachment Witnesses.
After identifying the listed witnesses as impeachment witnesses, Forbo properly prepared
witness statements for the impeachment witnesses and provided them to the court. Despite not
having access to the impeachment witness statements, Wanke now impliedly objects to the contents
of such witness statements, or at least to the impeachment witnesses testifying to the matters
contained therein. Specifically, Wanke seeks to limit the impeachment witnesses to testifying about
matters relevant solely to the impeachment of Wanke’s witnesses. Wanke argues that to the extent
the impeachment testimony is material to the merits of the case, it should be excluded.
The federal courts are split on the admissibility of impeachment evidence relevant both to
the impeachment of a witness and the merits of the case. One view is that impeachment evidence
should be limited to evidence which has value solely for the purpose of impeaching a witness. See
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Robert Kubicek Architects & Assocs., Inc. v. Bosley, No. CV 11-2112-PHX DGC, 2013 WL 998222,
*2, (D. Az. March 13, 2013); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998); Wilson v. AM
Gen. Corp., 167 F.3d 1114, 1122 (7th Cir. 1999). Under this view, any evidence which has
relevancy to both impeachment and the merits of the case must be properly disclosed to the opposing
party or be excluded. Judge Hubel of this district, however, adopted the alternate view that evidence
offered to impeach a party is admissible even thought it is relevant to the substantive issues in the
case. See Halsbasch v. Med-Data, Inc., 192 F.R.D. 641, 650 (D. Or. 2000). Judge Hubel reasoned
“[i]t is the rare case where an attack on a witness’s credibility cannot be linked to some substantive
element of a claim.” Id. at 649-50.
The court adopts Judge Hubel’s view in this instance for three reasons. First, Forbo seeks
to offer testimony which contradicts other testimony in the record. Impeachment by contradiction,
a form of impeachment Wanke acknowledges as proper in itsbrief, necessarily requires the offering
of evidence relevant to the merits of the case. Second, despite having all of the relevant information,
Wanke failed to object to Forbo’s intended use of its impeachment witnesses at the time its
objections to witnesses were due. Failing to object to the impeachment witnesses in a timely manner
could be viewed as a waiver of such objection. Finally, the impeachment witnesses Forbo identified
are all existing or prior employees of Buckwold Western or Wanke and were deposed. Accordingly,
the testimony of the impeachment witnesses should not come as a surprise to Wanke and is unlikely
to be unduly prejudicial to Wanke’s case in light of the impeachment witness’s bias in favor of
Wanke.
It is evident from a review of the witness statements Forbo submitted it intends to elicit
testimony relevant to its defense and the merits of the case, not merely impeachment testimony.
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Forbo may call the witnesses only for the purposes of impeachment and is limited to eliciting
testimony from the impeachment witnesses that, in fact, serves to impeach one or more of Wanke’s
witnesses. That this testimony is also relevant to the merits of the case will not result in the
exclusion of such impeachment testimony.
II. Scope of Cross-Examination of Impeachment Witnesses.
The witnesses identified by Forbo as impeachment witnesses have also been identified as
witnesses by Wanke, either in its case-in-chief or in rebuttal. In its cross-examination of these
witnesses, Forbo may question the witness only on matters within the scope of the direct testimony
and matters relevant to impeachment. The opportunity to cross-examine a witness does not open the
door to allow questioning on matters unrelated to the testimony elicited on direct examination or for
purposes other than impeachment.
RULING: SUSTAINED IN PART, OVERRULED IN PART.
IT IS SO ORDERED.
DATED this 8th day of May, 2017.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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