United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
parties' proposed pretrial order, Defendants objected to
Plaintiffs' use at trial of the depositions of three
defense expert witnesses, Drs. Moritz, Rogers, and Stein, who
originally were retained by Defendants but have since been
withdrawn. Doc. 10255 at 2. Defendants assert that the
depositions constitute hearsay and are not admissible as
admissions of a party-opponent. Id. (citing
Fed.R.Evid. 801(d)(2)(C); Glendale Fed. Bank, FSB v.
United States, 39 Fed.Cl. 422, 425 (1997); In re
Hanford Nuclear Res. Litig., 534 F.3d 986, 1016 (9th
Cir. 2008)). Plaintiffs counter that once a party has offered
opinions through deposition or expert reports, those opinions
do not belong to that party alone, but rather are available
for all parties to use at trial. Id. at 26 (citing
NetAirus Techs., LLC v. Apple, Inc., No. LA
CV10-03257 JAK, 2013 WL 9570686, at *3 (C.D. Cal. Nov. 11,
final pretrial conference, the Court directed the parties to
file memoranda addressing the issue of whether the
depositions are admissible under Federal Rule of Civil
Procedure 32(a)(4) and Federal Rule of Evidence 804(b)(1).
See Doc. 10323 at 3. The parties have now done so.
Docs. 10343, 10345.
contend that depositions of the withdrawn experts are
admissible because a party may use “for any
purpose” the depositions of unavailable witnesses under
Rule 32(a)(4), and the depositions fall within the
“former testimony” exception to the hearsay rule
set forth in Rule 804(b)(1). Id. at 1-2 (citing
Tatman v. Collins, 938 F.2d 509, 511 (4th Cir.
1991)). Defendants acknowledge that several courts have held
that a withdrawn expert's deposition may be used at trial
under Rule 32(a)(4). Doc. 10343 at 2-3. Defendants assert
that the depositions nonetheless should be excluded under
Rule 804 unless Plaintiffs have used reasonable but
unsuccessful means to procure live testimony from the
experts, and unless Defendants had a “similar
motive” to develop the testimony during the deposition.
Id. at 2. But Defendants do not dispute that the
withdrawn experts are unavailable for purposes of Rule
804(a)(5) and that any attempt by Plaintiffs to subpoena them
would be futile. Nor do Defendants explain why they did not
have a similar motive to develop the experts' testimony
during the depositions. Once it was clear that the experts
were giving answers helpful to Plaintiffs, Defendants had
sufficient incentive to clarify or cross-examine on those
answers. Defendants have not shown that the depositions are
inadmissible on hearsay grounds.
argue that even if the depositions can be used at trial, it
would be unfairly prejudicial under Rule 403 to disclose to
the jury that the experts originally were retained by
Defendants. Several courts have recognized “the
significant potential prejudice of informing the jury that
the expert presently testifying for one party was originally
designated, retained, or consulted by the opposing
party.” House v. Combined Ins. Co. of Am., 168
F.R.D. 236, 243 (N.D. Iowa 1996) (citing Peterson v.
Willie, 81 F.3d 1033, 1037 (11th Cir. 1996) (collecting
cases)); Healy v. Counts, 100 F.R.D. 493, 496 (D.
Colo. 1984); Rubel v. Eli Lilly & Co., 160
F.R.D. 458, 460 (S.D.N.Y. 1996) (noting that one leading
commentator “aptly has characterized the fact of the
prior retention by the adversary as
‘explosive'” (quoting 8 Wright, Miller &
Marcus, Federal Practice & Procedure §
2032, at 447 (1994)). As one court explained:
The admission of this evidence . . . would only serve to
unfairly prejudice the [opposing party]. Jurors unfamiliar
with the role of counsel in adversary proceedings might well
assume that . . . counsel had suppressed evidence which he
had an obligation to offer. Such a reaction could destroy
counsel's credibility in the eyes of the jury.
Granger v. Wisner, 656 P.2d 1238, 1242-43 (Ariz.
contend that Defendants should not be able to
“hide” their experts' unfavorable opinions
from the jury. Doc. 10345 at 2. But disclosing the fact that
Defendants have withdrawn the experts could be unfairly
prejudicial, leading the jury to speculate as to why the
experts were withdrawn and, potentially, to conclude that
Defendants or their counsel attempted to engage in dishonest
or unethical behavior. And such information has little
relevance to the substance of the experts' opinions on
any claim or defense in this case. See Granger, 656
P.2d at 381 (finding the fact of the prior consultation
irrelevant to the issue of negligence); House, 168
F.R.D. at 243 (“House has asserted as an argument for
permitting her to offer [the expert's] testimony the
assertion that [the defendant] is trying to hide [the]
opinion from House and the jury. However, the court in
Peterson recognized the prejudice that results from
informing the jury that an expert had originally been
consulted by the opposing party.”).
Court concludes that Plaintiffs may use portions of the
experts' depositions that support Plaintiffs' case,
but may not disclose to the jury, through argument or
deposition excerpts, that the experts originally were
retained by Defendants. The Court concludes that the
probative value of such arguments or deposition excerpts
would be substantially outweighed by the danger of unfair
prejudice. Fed. R. Ev. 403.
Court is also concerned about the presentation of cumulative
evidence. The Court has made clear that it will not permit
either side to use multiple experts at trial to address the
same issue. Thus, before the deposition of any withdrawn
expert may be used at trial, “there should be some
showing . . . that no other expert of similar qualifications
is available or that the unavailable expert has some unique
testimony to contribute.” Carter-Wallace, Inc. v.
Otte,474 F.2d 529, 536-37 (2d Cir. 1972). If Plaintiffs
make this showing for any of the withdrawn experts, the Court
will allow the expert's deposition to be used at trial
subject to the Rule 403 decision above and any other