Free Motion in Limine - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) )

HOMER J. HOLLAND, STEVEN BANGERT, co-executor of the ESTATE OF HOWARD R. ROSS, AND FIRST BANK Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 95-524 C (Judge G. Miller)

PLAINTIFFS' MOTION IN LIMINE TO PRECLUDE ADMISSION OF DX 1452, THE DECLARATION OF NICHOLAS C. WILSON Plaintiffs respectfully ask the Court to rule that the Declaration of Nicholas C. Wilson, dated February 25, 2004 (DX 1452) (attached hereto as Exhibit A), cannot be admitted into evidence. The declaration is hearsay under FRE 801(c) -- "a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted." Under FRE 802, therefore, the declaration is inadmissible unless one of the exceptions provided in Rules 803 and 804 applies. The only plausible exception, the "former testimony" exception of FRE 804(b)(1), is foreclosed -- the declaration could only be admitted under that provision if Mr. Wilson were "unavailable" to testify at trial. But Mr. Wilson is not "unavailable" -- the defendant has represented that it "will call" Mr. Wilson as a witness. The declaration is inadmissible hearsay. Moreover, Mr. Wilson's deposition testimony shows that the content of the declaration is so unreliable as to be irrelevant under FRE 401 and inadmissible under FRE

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402 and 403, and the language of the declaration itself establishes that Mr. Wilson lacked personal knowledge of the purportedly underlying facts, rendering the document inadmissible under FRE 602. Mr. Wilson testified at his deposition that when the defendant induced him to make the declaration he was "fairly heavily drugged" 1 because he "had significant health problems."2 Specifically, Mr. Wilson stated that he "had had quintuple bypass surgery in January [2004], was on dialysis for failed kidneys and had a kidney transplant in March of 2004."3 He explained further: I had end stage kidney failure -- renal failure, and had had a heart attack in September of 2002, and subsequent to that had been diagnosed with the end-stage renal failure, that I have a choice between long-term dialysis or a kidney transplant. As the doctors evaluated me, I needed to have the bypass -- quintuple bypass surgery before they could do the kidney transplant operation in March [2004]. I was on dialysis from December of '03 through the time of the kidney transplant on March 17 of 2004.4 Thus, Mr. Wilson's mental state when he signed the declaration in February 2004 was such that, as he testified during his deposition, "if someone had asked me [later], I am not so sure I would have said I knew there was a declaration." 5 In fact, Mr. Wilson was asked at deposition "Do you remember signing [the declaration]" and he responded that "If you would ask me that question, and I did not have the document in front of me, I would not have recalled signing it."6 Moments later, he acknowledged that "I don't

1 2

Exhibit B, Wilson Dep. Tr. (Feb. 15, 2006) at 22. Id. at 21. 3 Id. 4 Id. at 23. 5 Id. at 178. 6 Id. at 40. 2

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remember attesting to it," and "I don't even remember signing any document, I guess."7 Mr. Wilson also testified in his deposition that he had no recollection of formulating the assertions set forth in the declaration: Q: . . . [M]y sense is that you don't remember how this document was created; is that correct? A: Correct. Q: So you don't know whether you drafted these statements or the government drafted them? A: I don't recall.8 Mr. Wilson's best recollection, which he described as his "assumption," was that the declaration "was not drafted by me but [was] drafted by the -- whoever I was talking to at th[e] time."9 In addition, when asked by Defendant whether he "ha[d] any doubt that when [he] signed th[e] [declaration]," that he "intended to sign [that] document," and not "something else," Mr. Wilson stated that he "d[id]n't recall," and that he "d[id]n't even recall the document."10 The defendant then asked Mr. Wilson, "But you don't doubt that that is your signature?" Mr. Wilson acknowledged his signature and began to explain that "[a]s the signature page is separate from the other pages --" but the defendant interrupted his explanation and changed the subject.11 It is doubtful that Mr. Wilson consciously intended to make the statements attributed to him in the declaration, and it is questionable (and unascertainable) whether he knew what he was signing. Even the critical statements in the declaration itself --

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Id. at 41. Id. at 41. 9 Id. at 42. 10 Id. at 166. 11 Id. 3

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such as whether Mr. Wilson personally prepared the key "document[] sent to me by the government" -- consist of material Mr. Wilson admits in the declaration that he was forced to "assume" because he "d[id] not specifically recall that fact."12 The declaration acknowledges that Mr. Wilson was "unable to recall from independent memory the details concerning [his] work," and demonstrates that the assertions it contains stem not from Mr. Wilson's actual personal knowledge but instead consist merely of post hoc conjecture as to whether certain "conclusions reached in [a 1991] letter appear to be reasonable."13 For these reasons, the assertions in the declaration are so unreliable that they do not "tend 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 declaration. They are, accordingly, irrelevant under FRE 401 and inadmissible under FRE 402. In addition, the circumstances under which the defendant procured the declaration demonstrate that the danger of unfair prejudice outweighs whatever probative value the declaration might have, and thereby requires exclusion under FRE 403. Finally, Mr. Wilson's statement in the declaration that he lacked "independent memory" of the facts purportedly underlying his conclusions render the declaration inadmissible under FRE 602, which establishes "lack of personal knowledge" as a ground for exclusion. Mr. Wilson's declaration, which the Defendant procured from a gravely ill and heavily medicated person who cannot recall signing it, is of no evidentiary value to the Court and should be excluded from trial. Defendant has stated that it intends to call Mr. Wilson as a witness in its case-in chief. At that time, the Court may hear whatever
12 13

Exhibit A, Wilson Dec. (Feb. 24, 2004) at ¶¶3-4. Id. at ¶6. 4

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relevant and admissible testimony Mr. Wilson may be able to provide.

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Respectfully submitted,

Of Counsel: Melvin C. Garbow Howard N. Cayne Michael A. Johnson Joshua P. Wilson ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Co-counsel for First Bank: Donald J. Gunn, Jr., Esq. Sharon R. Wice, Esq. Gunn and Gunn First Bank Building Creve Coeur 11901 Olive Blvd., Suite 312 P.O. Box 419002 St. Louis, Missouri 63141 (314) 432-4550 (tel.) (314) 432-4489 (fax)

/s/ David B. Bergman David B. Bergman ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 (tel.) (202) 942-5999 (fax) Counsel for plaintiffs Holland and Ross and First Bank.

Dated:

November 5, 2007

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CERTIFICATE OF SERVICE I certify that on this 5th day of November 2007, I caused the foregoing PLAINTIFFS' MOTION IN LIMINE TO PRECLUDE ADMISSION OF DX 1452, THE DECLARATION OF NICHOLAS C. WILSON to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

Dated: November 5, 2007

/s/ Joshua P. Wilson Joshua P. Wilson

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