United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
case brought by Plaintiffs Lisa and Mark Hyde is set for a
bellwether trial on September 18, 2018. Defendants seek to
admit testimony that Dr. Murray Asch - their former
consultant in a study of Bard filters - gave in the Booker
and Jones trials earlier this year. Doc. 12388 at 46.
Plaintiffs object, arguing that the previous trial testimony
is hearsay and Defendants cannot satisfy the requirements of
Rule 804. The Court agrees.
Asch's testimony in the Booker and Jones trials
constitutes hearsay because it consists of statements Dr.
Asch made while not testifying in the current trial, offered
for the truth of the matters asserted. Fed.R.Evid. 801(c).
Defendants contend that the testimony is admissible as
“former testimony” under Rule 804(b)(1). Doc.
12388 at 46. To satisfy this hearsay exception, Defendants
must show, among other things, that Dr. Asch is unavailable
as a trial witness because they have “not been able, by
process or other reasonable means, to procure . . . [his]
attendance[.]” Fed.R.Evid. 804(a)(5). Defendants bear
the burden of showing that Dr. Asch is unavailable under this
standard. See United States v. Eufracio-Torres, 890
F.2d 266, 269 (10th Cir. 1989) (“the proponent of the
evidence bears the burden of demonstrating the unavailability
of [the] declarant”) (citing Roberts, 448 U.S.
at 65); see Kirk, 61 F.3d at 165 (same); Moore
v. Miss. Valley State Univ., 871 F.2d 545, 552 (5th Cir.
1989) (“the burden is on the offering party” to
satisfy Rule 408(a)(5)).
Asch lives and works in Canada. He is beyond the Court's
subpoena power. See Fed. R. Civ. P. 45(c)(1)(A).
This portion of the Rule 804(a)(5) standard is satisfied. The
key question, then, is whether Defendants attempted to
procure his attendance at trial through “other
reasonable means.” Fed.R.Evid. 804(a)(5). Defendants
argue that Dr. Asch has appeared at previous trials as
Plaintiffs' witness; Defendants asked Plaintiffs to make
Dr. Asch available for this trial and Plaintiffs declined;
Dr. Asch charges $5, 000 a day to testify; and Plaintiffs
themselves are asserting that Dr. Asch is unavailable for
purposes of using his deposition under Federal Rule of Civil
Procedure 32(a)(4). After considering each of these
arguments, the Court concludes that Defendants have not met
804(a)(5) “places the duty on the proponent of the
hearsay statement to attempt to secure the attendance of the
person making the statement.” United States v.
Vasquez-Ramirez, 629 F.2d 1295, 1297 (9th Cir. 1980)
(rejecting the government's assertion that the witness
was unavailable for trial because the defendant could have
subpoenaed the witnesses but did not). Defendants made no
attempt to contact Dr. Asch directly and request his
attendance at trial. Defendants contend that any attempt on
their part to secure his presence at trial would have been
futile, but the Supreme Court has instructed that “the
possibility of a refusal is not the equivalent of asking and
receiving a rebuff.” Barber v. Page, 390 U.S.
719, 724-25 (1968) (citation omitted). “The advisory
committee's note to Rule 804(a)(5) refers to Barber .
. . as the standard for the reasonableness of efforts to
obtain non-resident witnesses, and Barber holds that
a [proponent] may not omit making a request just because the
answer is not a sure thing.” United States v.
Kehm, 799 F.2d 354, 360 (7th Cir. 1986); see Ohio v.
Roberts, 448 U.S. 56, 74 (1980) (noting that the law
does not require the doing of a futile act, such as
attempting to procure the attendance of a witness who has
died, but if there is a possibility, albeit remote, that
affirmative measures might produce the declarant, then good
faith efforts may be required), abrogated on other
grounds by Crawford v. Washington, 541 U.S. 36 (2004).
note that Dr. Asch charges $5, 000 a day to testify, but
Defendants do not claim that this amount is unreasonable or
unaffordable, and many other witnesses have been paid
comparable amounts in this case. Nor have Defendants
otherwise shown that the fee is a basis for finding Dr. Asch
unavailable under Rule 804(a)(5). See Kirk, 61 F.3d
at 165 (“Kirk made no independent attempt to contact
Dr. Burgher, offer him his usual expert witness fee, and
request his attendance at trial. Because Dr. Burgher was
never even as much as contacted, Kirk has failed to prove
that she used ‘reasonable means' to enlist his
intend to present Dr. Asch's deposition testimony at
trial under Rule 32 of the Federal Rules of Civil Procedure,
which they can do only if he is unavailable. Defendants argue
that if Dr. Asch is unavailable to Plaintiffs under Rule
32(a)(4), then he likewise is unavailable to Defendants under
Rule 804(a)(5). But the standards of the two rules are not
the same. Rule 32 is an “independent exception”
to the hearsay rule; it does not rely on Rule 804.
Nationwide Life Ins. Co. v. Richards, 541 F.3d 903,
914 (9th Cir. 2008) (citing Fed.R.Evid. 802 advisory
committee's note (identifying Rule 32(a) as one of the
“other rules” that allows for the admission of
hearsay); Fletcher, 895 F.3d at 1020 (citing
Nationwide and noting that decisions from around the
country have concluded that Rule 32(a) operates as an
independent exception to the hearsay rule). A witness is
unavailable under Rule 32(a)(4) simply if he is more than 100
miles from the place of trial or outside the United States.
Fed.R.Civ.P. 32(a)(4)(B), (D). Unlike Rule 804(a)(5), Rule
32(a)(4) “does not require ‘the party seeking to
admit the deposition testimony to show that it was unable to
procure the attendance of the [witness] through
‘process or other reasonable means.'”
Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 n.2
(1st Cir. 1988); see Nationwide, 541 F.3d at 914
(“[B]ecause [the deposition] testimony properly was
admitted under Rule 32(a)(4)(B), it need not also meet the
requirements for admissibility set forth in Rule
804[.]”); Fletcher v. Tomlinson, 895 F.3d
1010, 1020 (8th Cir. 2018) (same). Thus, the fact Dr. Asch is
unavailable for purposes of Rule 32(a)(4) does not mean that
he is unavailable for purposes of Rule
short, Defendants have not shown that Dr. Asch is unavailable
under Rule 804. Many other cases have reached similar
conclusions. See United States v. Pena-Gutierrez,
222 F.3d 1080, 1086 (9th Cir. 2000) (holding that a foreign
witness was not unavailable where the government had his name
and address but made no effort to contact him in his native
country); Pfingston v. Ronan Eng'g Co., 284 F.3d
999, 1004 (9th Cir. 2002) (the proponent failed to show that
the witness was unavailable where he proffered no evidence
that the witness refused or was unable to testify);
Kirk, 61 F.3d at 165 (district court abused its
discretion in admitting prior trial testimony where there was
no evidence of reasonable means employed by the proponent to
procure the witness's attendance); Glob. Med. Sols.,
Ltd. v. Simon, No. CV-12-04686-MMM-JCX, 2013 WL
12065418, at *12 n.114 (C.D. Cal. Sept. 24, 2013) (finding
Rule 804 not applicable where the proponents did not try to
obtain the witness's attendance); see also Rodriguez
v. Hayman, No. CIV. 08-4239 RBK/KMW, 2013 WL 1222644, at
*2 (D.N.J. Mar. 25, 2013) (noting that whether a party used
reasonable means to locate a witness is generally left to the
district court's discretion and “the touchstones of
‘reasonable means' under Rule 804(a)(5) are
variation and repetition”) (citations
final pretrial conference, Defendants also argued that Dr.
Asch's trial testimony is admissible under Rule 807, the
residual hearsay exception. That rule requires, however, that
the offered evidence be “more probative on the point
for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts.”
Fed.R.Evid. 807(a)(3). Defendants asserted that this
requirement is satisfied, but they did not explain why, and
the Court cannot conclude that Dr. Asch's previous trial
testimony is more probative than other reasonably available
evidence. Dr. Asch was deposed by Defendants and Plaintiffs
before trial, and his deposition spans more than 200 pages.
Additionally, his deposition testimony was videotaped and
would permit the jury to view and assess his demeanor, unlike
the prior trial testimony that would be available only
through a written transcript to be read to the jury. What is
more, various other witnesses and documents concern the study
Dr. Asch conducted of Bard filters and could be presented in
support of positions Defendants wish to make. The Court
accordingly cannot conclude that Defendants have satisfied
the requirement of Rule 807(a)(3).
IS ORDERED that Dr. Asch's prior trial testimony
is inadmissible hearsay in the Hyde trial.
 Defendants suggested at the final
pretrial conference that Plaintiffs' failure to arrange
for Dr. Asch's attendance at trial means that his absence
“was procured by the party offering the
deposition” within the meaning of Rule 32(a)(4). If
true, this would prevent Plaintiffs from using Dr. Asch's
deposition at trial, but it would not authorize
Defendants' use of his prior trial testimony under Rule
804. In addition, the Court cannot conclude that Plaintiffs
“procured” Dr. Asch's absence simply by not
arranging for him to attend trial. Cases have held that
“procuring absence” requires active steps and not
just “doing nothing to facilitate presence.”
See Carey, 864 F.2d at 204; Wal-Mart Stores,
Inc. v. Cuker Interactive, LLC, No. 5:14-CV-5262, 2017
WL 1312968, at *2 (W.D. Ark. Apr. 5, 2017) (citing
Given this ruling, the Court need not
decide whether Booker and Jones were predecessors in interest
who had an opportunity and similar motive to develop Dr.