Glendale Federal Bank, FSB v. United States

39 Fed. Cl. 422, 1997 U.S. Claims LEXIS 266, 1997 WL 732366
CourtUnited States Court of Federal Claims
DecidedNovember 10, 1997
DocketNo. 90-772 C
StatusPublished
Cited by16 cases

This text of 39 Fed. Cl. 422 (Glendale Federal Bank, FSB v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glendale Federal Bank, FSB v. United States, 39 Fed. Cl. 422, 1997 U.S. Claims LEXIS 266, 1997 WL 732366 (uscfc 1997).

Opinion

OPINION

SMITH, Chief Judge.

INTRODUCTION

Plaintiff seeks to introduce deposition testimony of government experts, Professors Miller, Schwert, and Ruback, as substantive evidence and for use in cross-examination of another government expert, Professor Fis-chel. The two issues before the court are, first, whether the deposition testimony of a party’s expert given in the instant case is admissible as an admission by a party-opponent under Federal Rules of Evidence (FRE) 801(d)(2)(C). The second issue is whether such deposition testimony may be used to cross-examine an expert witness under FRE 611(b), regardless of whether or not it is admissible as substantive evidence.

DISCUSSION

FRE 801(d) of the Federal Rules of Evidence states in relevant part:

(d) Statements which are not hearsay.—
[423]*423A statement is not hearsay if—
(2) Admission by party-opponent.—
The Statement is offered against a party and is ...
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Fed.R.Evid. 801(d)(2)(C), (D).

A. PARTIES’ARGUMENTS.

Plaintiff relies on the plain language of this Rule to conclude that deposition testimony by government experts is not hearsay and is admissible as substantive evidence. Plaintiff notes that government experts, including those who were later withdrawn, were hired by the government and were asked specifically by the government to testify at their depositions on the subject of damages incurred by Glendale in this particular case. Plaintiff concludes that those experts, hired and put forward to testify by Defendant, were hence “authorized” by the party to make a statement concerning the subject and that their deposition testimony therefore constitutes an admission by a party-opponent. Such an admission may be used for any relevant purpose at trial.

Plaintiff cites Collins v. Wayne Carp., 621 F.2d 777 (5th Cir.1980), and cases following Collins, to support its conclusion that the government experts were “authorized” within the meaning of the Rule. In Collins, defendant Wayne Corp. employed an expert to investigate and analyze a bus accident and report on his findings about the speed of the bus and about its impact with a tractor trailer. The court treated that expert’s deposition testimony as an admission of the defendant. Id. at 782. The court in Collins noted that Wayne Corp.’s expert, at his deposition, was performing the function that Wayne had employed him to perform. Id. Plaintiff argues that the government’s experts in the instant case were similarly employed by the Defendant to testify at their depositions and therefore urges the court to admit Defendant’s experts’ deposition testimony as admissions.

Defendant, relying on Kirk v. Raymark Indus., 61 F.3d 147 (3d Cir.1995), urges the court to find that the government’s experts were not authorized to speak under FRE 801(d)(2)(C) and, therefore, that their deposition testimonies were not admissions and thus hearsay when not used against that deponent. In Kirk the plaintiff sought to discredit defendant Owens-Corning’s expert witness by showing that another expert, testifying for Owens-Corning in another trial had given a contradictory opinion about which asbestos fibers cause mesothelioma, a lung disease. Id. at 162-63. The Third Circuit ruled that the earlier testimony was hearsay and not admissible. Id. at 164. The Kirk court explained that “expert witnesses are supposed to testify impartially in the sphere of their expertise” and that “one can call an expert witness even if one disagrees with the testimony of the expert.” Id. at 164.

B. COURT’S ANALYSIS.

This area of the law is murky at best with several divergent streams and many highly fact specific eddies making up the case law. Thus, the court, out of necessity, will attempt to craft a coherent and functional rule based upon the conflicting interests in a full and fair trial based on all the basic or necessary facts surrounding the underlying dispute and the parties’ right to explore their own cases fully without the fear that preliminary evidence could harm their case later. Admissions are allowed into evidence because they are or can be treated as the party’s own statement. See Edward J. Imwinkelried, Ev-identiary Foundations 273, 282 (3d ed.1995); 5 Weinstein’s Federal Evidence 801-50 (2d ed.1997); 2 McCormick on Evidence 140 (4th ed.1992); see also Advisory Committee Note, Fed.R.Evid. 801(d)(2), 1972 Proposed Rules. Here the court must decide when an expert’s deposition testimony may be treated as the sponsoring party’s own statement. The cases cited provide helpful guidance but are [424]*424not binding on this court. Plaintiff maintains that the deposition marks a critical point as of which an expert’s testimony should be treated as an admission by a party-opponent. The court feels that drawing the line at a deposition Would unduly intrude on a party’s ability to control its own case. It would, even more importantly, inhibit a party’s attempt to fully explore and understand its own case. This is a serious threat to the adversary system and to settlement.

We may not simply evaluate the party’s relationship to its expert witness according to agency principles. FRE 801(d)(2)(C) makes no mention of “agent” or even “servant” in the Rule itself. By comparison, Rule 801(d)(2)(D) states clearly that it applies to “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship” (emphasis added).

Principles of statutory construction require that we interpret the statute as a whole. Beecham v. United States, 511 U.S. 368, 372, 114 S.Ct. 1669, 1671-72, 128 L.Ed.2d 383 (1994) (citing King v. St. Vincent’s Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 574, 116 L.Ed.2d 578 (1991)).

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Bluebook (online)
39 Fed. Cl. 422, 1997 U.S. Claims LEXIS 266, 1997 WL 732366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glendale-federal-bank-fsb-v-united-states-uscfc-1997.