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Case 1:99-cv-00550-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) THE OSAGE TRIBE OF INDIANS OF OKLAHOMA,

Electronically Filed: February 22, 2006 Nos. 99-550L (into which has been consolidated No. 00-169 L) Judge Emily C. Hewitt

DEFENDANT'S MEMORANDUM REGARDING APPLICATION OF FEDERAL RULE OF EVIDENCE 615 TO MIXED FACT/EXPERT WITNESSES Defendant submits this memorandum pursuant to the Court's request for a research paper addressing whether mixed fact/expert witnesses should be sequestered from trial testimony under Federal Rule of Evidence 615. See February 16, 2006 Transcript at 13:14-24; 14:1-21. Rule 615 provides that witnesses may be excluded from hearing the testimony of other witnesses. The Rule carves out an exception for persons "whose presence is shown by a party to be essential to the presentation of the party's cause." F.R.E. 615(3). Courts have commonly held that expert witnesses qualify as essential persons exempt from exclusion under section (3) of Rule 615. See e.g., Malek v. Federal Ins. Co., 944 F.2d 49, 54 (2nd Cir. 1993). Rule 615 does not address the situation where a witness has been designated as both a fact and expert witness. There is also very little case law on the matter. In one of the few reported opinions on the issue, the Fourth Circuit held that a mixed fact/expert witness should be excluded from trial testimony under Rule 615. Opus 3 Ltd. v. Heritage

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Case 1:99-cv-00550-ECH

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Park, Inc., 91 F.3d 625 (4th Cir. 1996). In Opus, a property owner, Opus, sued a construction company, Heritage Park, for nonpayment of construction costs that had been approved by Heritage Park's general contractor. Id. at 627. Heritage Park claimed its general contractor exceeded his authority in approving the additional work. Id. In its pre-trial disclosures, Heritage Park designated its general contractor as an expert witness and as the "key" fact witness for the defense. Id. At the request of Opus, the lower court excluded the general contractor under Rule 615. Id. at 627-28. Heritage Park appealed arguing, among other things, that the general contractor was, as an expert witness, exempt from exclusion under Rule 615(3). Id. at 629. Noting that the general contractor had been identified as the "key fact witness" and that his fact testimony was "crucial to the disputed issues," the Fourth Circuit upheld the lower court's determination that the mixed fact/expert witness was not exempt under section (3) of Rule 615. Id. While the Fourth Circuit determined that the mixed fact/expert witness in Opus should have been excluded, it is unclear whether it or other courts would support the exclusion of a mixed/fact witness whose fact testimony was not "key" or "crucial" to the case and who was not at the center of the controversy. As a result, it is uncertain whether mixed fact/expert witnesses who provide factual testimony tangential/collateral to the primary issues of the case should be excluded under Rule 615. Respectfully submitted this 22nd day of February, 2006.

SUE ELLEN WOOLDRIDGE Assistant Attorney General

s/ Brett D. Burton BRETT D. BURTON 2

Case 1:99-cv-00550-ECH

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United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0212 Fax: (202) 353-2021 Counsel of Record for Defendant

s/ Martin J. LaLonde MARTIN J. LALONDE KEVIN WEBB United States Department of Justice Environment and Natural Resources Division P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0247/0479 Fax: (202) 353-2021 Attorneys for Defendant OF COUNSEL: Elisabeth Brandon Brenda Riel Attorneys Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior MS 6456 Washington, D. C. 20240 Telephone: (202) 208-7403 Fax: (202) 219-0559 Teresa E. Dawson Senior Counsel Office of Chief Counsel Financial Management Service U.S. Department of the Treasury 401 14th Street, S.W. Washington, D.C. 20227 Telephone: (202) 874-2567 Fax: (202) 874-6627

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