Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

Document 194

Filed 04/25/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) STONE, ERROL L. & SUSAN H., ) In their own right and as Trustees of the ) Susan H. Stone Trust and the Errol L. Stone ) Trust, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ) EUGENE J. FRETT, Individually and ) as trustee of the Victor J. Horvath and Frances ) B. Horvath Trust, and ) ) DONNA P. FRETT, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,

No. 99-4451 L Judge Emily C. Hewitt

No. 04-277 L Judge Emily C. Hewitt

No. 05-1353L Judge Emily C. Hewitt

DEFENDANT'S MOTION FOR LEAVE TO DESIGNATE DEPOSITION TESTIMONY

Case 1:99-cv-04451-ECH

Document 194

Filed 04/25/2007

Page 2 of 4

Pursuant to Rule 32(a) of the Rules of the Court of Federal Claims ("RCFC") and RCFC Appendix A ¶ 15(b), Defendant hereby moves for leave to file and present substantive evidence through the deposition testimony of Plaintiffs' expert witness, Dr. Guy Meadows. DISCUSSION At the outset, it should be emphasized that Defendant intends to rely on excerpts of Dr. Meadows' testimony only in the event that Plaintiffs ultimately choose not to call Dr. Meadows to the stand. If Plaintiffs call Dr. Meadows, as we expect they will, Defendant is prepared to elicit the necessary information through in-court cross examination, and reliance on deposition testimony will prove unnecessary. In the event that Dr. Meadows is not called to testify during the trial of this matter, Defendant seeks to designate the following pages from his December 2000 deposition: 1-2, 8-10, 20-25 and 46-51. Copies of the designated pages are attached as Exhibit A. According to RCFC 32(a)(3)(E), the deposition of a witness may be used for any purpose if the court finds "upon application and notice, that the witness is at a greater distance than 100 miles from the place of trial," unless the witness's absence "was procured by the party offering the deposition" or if the court determines "that it is not in the interest of justice" to allow use of the deposition. In this case, the deposition excerpts Defendant seeks to file and present as substantive evidence meet these standards. The trial is currently scheduled to take place in Niles, Michigan. According to plaintiffs' witness list, Dr. Meadows resides in Ann Arbor, Michigan, which is approximately 150 miles away from Niles. Defendant has not, and would not, procure the absence of Dr. Meadows. Indeed, Defendant anticipates that Dr. Meadows will most likely be

-2-

Case 1:99-cv-04451-ECH

Document 194

Filed 04/25/2007

Page 3 of 4

called by Plaintiffs, which would obviate the need for reliance upon excerpts from his deposition. Further, justice does not require the use of live testimony on the issues for which these deposition excerpts are offered. All parties had an opportunity to examine Dr. Meadows during his deposition. As the Court is aware, the upcoming trial will consist of numerous witnesses and trial exhibits. Allowing Defendant to present some substantive evidence by way of deposition testimony, only in the event that it becomes necessary, will allow courtroom proceedings to proceed more efficiently. CONCLUSION For the foregoing reasons, Defendant respectfully moves for leave to file and present substantive evidence through the deposition testimony of Dr. Guy Meadows. Dated: April 25, 2007 Respectfully submitted, s/ Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Tele: 303-844-1369 Fax: 303-844-1350 [email protected] HEIDE L. HERRMANN Environment and Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 202-305-3315 (phone) 202-305-0274 (fax) [email protected]

-3-

Case 1:99-cv-04451-ECH

Document 194

Filed 04/25/2007

Page 4 of 4

CERTIFICATE OF SERVICE I certify that I have served a copy of the "Defendant's Motion for Leave to Designate Deposition Testimony" by electronic filing with the Unites States Court of Federal Claims on the 25th day of April, 2007 on: John Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Counsel for Banks Plaintiffs **************** Drew Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, NW Suite 600, East Tower Washington, DC 20005 Counsel for Stone Plaintiffs **************** Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Counsel for Frett Plaintiffs **************** s/ Terry M. Petrie TERRY M. PETRIE