Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:95-cv-00524-GWM

Document 403

Filed 10/09/2007

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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 TO INTRODUCE AT TRIAL THE DEPOSITION TESTIMONY OF DEFENDANT'S EXPERT PAUL A. GRIFFIN Pursuant to Federal Rule of Evidence 801(d)(2)(C) and this Court's Order of October 5, 2007, Plaintiffs hereby respectfully move for leave to introduce as substantive trial evidence portions of the deposition testimony of Defendant's testifying expert Paul A. Griffin. As this Court ruled in its October 5, 2007 Order, "Federal Rule of Evidence 801(d)(2) . . . provide[s] . . . [a] bas[i]s for the admission of deposition testimony in lieu of live testimony." Order of October 5, 2007 at 2 (citing Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91, 95-96 (2004). Among other types of "party admissions," identified by Rule 801(d)(2), Rule 801(d)(2)(C) classifies as "not hearsay" "statement[s] [] offered against a party" made "by a person authorized by the party to make a statement concerning the subject." The deposition testimony of an expert whom a party has authorized to speak on its behalf falls into this category, and constitutes "an admission against the party that retained him." Glendale Federal Bank v. United States, 39 Fed. Cl.

Case 1:95-cv-00524-GWM

Document 403

Filed 10/09/2007

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422, 425-26 (1997). Here, Defendant has listed Professor Paul A. Griffin as a witness it will call at trial: "Dr. Griffin will be called at trial to provide expert testimony in response to plaintiffs' damages theories." Defendant's Initial Witness Disclosures Pursuant to Appendix A, dated September 17, 2007 at 5. Further, Defendant has submitted to the Court as evidence in connection with summary judgment briefing a declaration authored and signed by Dr. Griffin concerning the opinions he provided during his February 2002 and June 2005 depositions. See Defendant's Supplemental Appendix, dated December 5, 2005, Exhibit 20. In taking these measures, Defendant has ratified Dr. Griffin's deposition testimony and authorized Dr. Griffin to speak on its behalf. See Glendale, 39. Fed. Cl. at 425 ("At th[e] point when an expert is put forward for trial it is reasonable and fair to presume that they have been authorized"). Accordingly, Plaintiffs respectfully request that the Court admit as substantive trial evidence the designated portions of Dr. Griffin's deposition testimony attached hereto as Exhibit 1.

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Case 1:95-cv-00524-GWM

Document 403

Filed 10/09/2007

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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:

October 9, 2007

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Case 1:95-cv-00524-GWM

Document 403

Filed 10/09/2007

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CERTIFICATE OF SERVICE I certify that on this 9th day of October 2007, I caused the foregoing PLAINTIFFS' MOTION TO INTRODUCE AT TRIAL THE DEPOSITION TESTIMONY OF DEFENDANT'S EXPERT PAUL A. GRIFFIN 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: October 9, 2007

/s/ Joshua P. Wilson Joshua P. Wilson