The opinion of the court was delivered by: Chief Judge Kane
Presently pending before the Court are four separate motions in limine filed by Defendant Nicholas Buchheit. (Doc. Nos. 75, 78, 81, 83.) This memorandum will address each motion in limine in turn.
I. DEFENDANT'S MOTION IN LIMINE TO PRECLUDE CROSS-EXAMINATION OF DEFENDANT ON ALLEGED MISREPRESENTATIONS REGARDING MILITARY SERVICE (DOC. NO. 78)
In his first motion in limine, Defendant seeks to preclude Plaintiff from cross-examining him regarding misrepresentations made to the Court about his military service. (Doc. No. 78.) Plaintiff argues that this evidence is relevant because it goes to Defendant's credibility. (Doc. No. 95 at 2.) Defendant argues that the evidence is irrelevant because Defendant himself did not make the representations regarding his military service; instead, the documents at issue were filed by Defendant's attorney.
"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. "All relevant evidence is admissible . . . ." Fed. R. Evid. 402. The Court agrees with Defendant that this evidence is not relevant.
Because the documents identified by Plaintiff as containing misrepresentations were filed by Defendant's attorney, they are irrelevant to Defendant's credibility. Therefore, the Court will grant Defendant's motion in limine on this issue. Plaintiff is precluded from cross-examining Defendant regarding misrepresentations about his military service.
II. DEFENDANT'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM INTRODUCING EXPERT WITNESS TESTIMONY THROUGH VIDEO DEPOSITION (DOC. NO. 83)
In his second motion in limine, Defendant seeks to preclude Plaintiff from introducing
the testimony of expert witness Dr. Gholamain via a video deposition. (Doc. No. 83 at 1.) Defendant avers that Dr. Gholamain is not "unavailable" pursuant to Federal Rule of Evidence 804 and Federal Rule of Civil Procedure 32 and, therefore, the Court should preclude Defendant from offering the video deposition at trial. (Doc. No. 84 at 4.) In opposing Defendant's motion in limine, Plaintiff argues that Dr. Gholamain, a citizen of Canada, who resides and works in Canada, is unavailable pursuant to both Rules 804 and 32. The Court agrees.
Federal Rule of Evidence 804 lists exceptions to the hearsay rule that apply if a declarant is unavailable. According to Rule 804(a)(5), a declarant is unavailable if she "is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance . . . by process or other reasonable means." Fed. R. Evid. 804(a)(5). Defendant cites to an unreported case, Aubrey Rogers Agency, Inc. v. AIG Life Ins. Co., No. Civ. A. 97-529 MMS, 2000 WL 135129, at *2 (D. Del. 2000), for the proposition that "[p]arties are expected to use other reasonable means to procure the attendance of their experts because the parties select their experts and arrange for their appearance at trial." However, in support of this statement, the court cited to the following language from Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1973):
When the ordinary witness is unavailable, his unique knowledge of the facts will be lost unless the use of his prior testimony is allowed.
But the expert witness generally has no knowledge of the facts of the case. Instead, he is called upon to express a professional opinion upon the facts as they are given to him, often expressing his opinions in the form of answers to hypothetical questions. Thus, even if one particular expert is unavailable, there is no need to use his previous testimony to prevent the loss of evidence, because there will usually be other experts available to give similar testimony orally.
The present case is distinguishable from the situation discussed in Carter-Wallace, Inc. Here, Dr. Gholomain is not only an expert witness, but also a fact witness because she treated Plaintiff prior to the filing of this action. (Doc. No. 96 at 4.) Because Dr. Gholamain is more akin to a "witness whose involvement with the case may depend on the fortuity of his observing a particular event" than the expert witness who "has no knowledge of the facts of the case," the Court will not impose the requirement that Plaintiff seek to secure the attendance of a witness who is beyond the subpoena power of the Court. Carter-Wallce, Inc., 474 F.2d at 536. Thus, the Court finds that Dr. Gholamain is unavailable pursuant to Federal Rule of Evidence 804(a)(5) and will deny Defendant's motion in limine on this basis.
Similarly, the Court finds that Dr. Gholamain is unavailable pursuant to Federal Rule of Civil Procedure 32. According to Rule 32(a)(1), a deposition may be used against a party at trial provided that: "(A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present in court and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8). Rule 32(a)(4) further provides that, where a witness is unavailable, the use of a deposition may be permitted. A witness is unavailable if she is outside the United States, unless that absence was procured by the party offering the deposition. Fed. R. Civ. P. 32(a)(4)(B). The Court finds Defendant's argument that Plaintiff "procured" Dr. Gholamain's absence in accordance with Rule 32(a)(4)(B) unpersuasive. "Procured" for purposes of Rule 32(a)(4)(B) means that "a party has collusively instigated or induced a witness to remove . . . herself from being amenable to testify at trial, or at least has unfairly and for an improper purpose deliberately arranged for the witness to absence himself or herself from the jurisdiction to preclude being examined." 7 Moore's ...