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3rd Cir's. '95 Kirk v. Raymark Opinion that Expert Witness' Testimony doesn't make them the Hiring Party's Agent and discusses Expert Testimony pursuant to Federal Rules of Evidence 801(d)(2)(C) and 804(b)(1)
Because an expert witness is charged with the duty of giving his or her expert opinion regarding the matter before the court, we fail to comprehend how an expert witness, who is not an agent of the party who called him, can be authorized to make an admission for that party. We are unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, unless there is a finding that the expert witness is an agent of the party and is authorized to speak on behalf of that party.
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 94-1745 and 94-1746
SARAH A. KIRK ...
RAYMARK INDUSTRIES, INC., et al.
Owens-Corning Fiberglas Corp., Appellant
Appeal from the U.S. Dist. Court for the E.Dist. of Pennsylvania
D.C. No. 88-cv-03736
Argued February 14, 1995
Before Stapleton, Greenberg and Cowen, Circuit Judges
Filed April 14, l995
OPINION by Cowen.
In these consolidated appeals, we are called upon to determine whether the district court committed an error of law by: (1) allowing plaintiff to introduce into evidence the prior testimony of an out of court expert witness from an unrelated state court action. We conclude that the court erred as a matter of law in allowing the introduction of hearsay evidence.
Alfred Kirk ("decedent"), a retired painter, died... from malignant asbestos-induced mesothelioma. Kirk alleged that her husband's mesothelioma was caused by exposure to dust from asbestos products.
On Dec. 13, 1993, the trial... began with issues of medical causation and damages. At the conclusion of this phase of the trial, the jury returned a verdict in favor of the Estate of Alfred Kirk for $ 1.2 million and in favor of Sarah Kirk for $810,000. At the conclusion of the liability trial, the jury returned a verdict against Owens-Corning [who then] moved for a new trial alleging several trial errors. This application was denied by the district court. Owens-Corning appeals... argu[ing] that the district court made several errors at trial which unfairly prejudiced it during the damage and liability phases of the trial.
During the liability phase of the trial, Owens-Corning offered the expert testimony of Dr. Harry Demopoulos to prove that the overwhelming majority of asbestos-induced mesotheliomas are caused by crocidolite asbestos fiber. This supported Owens-Corning's defense that its product, which did not contain crocidolite fiber, could not have caused the decedent's mesothelioma. Over Owens-Corning's objection, Kirk was permitted to read to the jury the prior trial testimony of Dr. Louis Burgher from an unrelated N.J. State Court asbestos action in 1992. In that case, Dr. Burgher had been an expert witness for Owens-Corning and testified on cross-examination that it was possible for mesothelioma to be caused by chrysotile fibers contaminated with tremolite. Kirk was clearly attempting to discredit Owens-Corning's defense offered through Dr. Demopoulos by revealing to the jury that Owens-Corning's expert witness in a previous case voiced a contradictory opinion as to which asbestos fibers cause mesothelioma. After the jury returned a verdict in favor of Kirk, Owens-Corning made a post-trial motion for a new trial based in part on the alleged admission of hearsay evidence, i.e., the prior testimony of Dr. Burgher in an unrelated case. The district court denied this motion.
Normally, when a new trial is sought by reason of a district court's alleged error in allowing the introduction of evidence, we review for abuse of discretion. However, where as here the ruling on admissibility of hearsay evidence implicates the application of a legally set standard, our review is plenary.
Owens-Corning argues that the court erred in allowing the jury to hear this evidence in light of the fact that it was hearsay. Although the record is at best vague as to what the district court's basis was for allowing such testimony, Kirk attempts to justify its admission under two distinct theories -- either the testimony was not hearsay pursuant to Rule 801(d)(2)(C) of the Fed.R.Evid. or it was hearsay, but subject to an exception pursuant to Rule 804(b)(1). [fn.5]
Kirk first attempts to justify the district court's admission of the prior trial testimony of Dr. Burgher by arguing it is an admission by a party opponent since it is a statement by a person authorized by Owens-Corning to speak concerning mesothelioma and is thus not hearsay. See Rule 801(d)(2)(C) [fn.6]; see also Precision Piping v. E.I. du Pont, 951 F.2d 613 (4th Cir.'91) (authority in the context of 801(d)(2)(C) means "authority to speak" on a particular subject on behalf of someone else). In her brief, Kirk argues that Burgher was authorized by Owens-Corning to offer his expert opinion about medical literature regarding mesothelioma and fiber type... At oral argument, Kirk suggested that the testimony of any expert that Owens-Corning has previously used in a trial can be used in future litigation against it as an authorized admission.
In support of this, Kirk cites Collins v. Wayne, 621 F.2d 777 (5th Cir.'80), which held that deposition testimony of an expert employed by a bus manufacturer to investigate an accident was an admission under 801(d)(2)(C). However, in that case the court made a finding that the expert was an agent of the defendant and the defendant employed the expert to investigate and analyze the bus accident. Id. The court determined that in giving his deposition, the expert was performing the function that the manufacturer had employed him to perform. As such, the court concluded that the expert's report of his investigation and his deposition testimony in which he explained his analysis and investigation was an admission of the defendant. Id.; see also Theriot v. J. Ray McDermott, 742 F.2d 877 (5th Cir.'84) ("an agent's statement, made within the scope of his authority . . . is admissible against the principal as an admission").
Kirk misconstrues the entire premise of calling expert witnesses. In theory, despite the fact that one party retained and paid for the services of an expert witness, expert witnesses are supposed to testify impartially in the sphere of their expertise. Thus, one can call an expert witness even if one disagrees with the testimony of the expert. Rule 801(d)(2)(C) requires that the declarant be an agent of the party-opponent against whom the admission is offered, and this precludes the admission of the prior testimony of an expert witness where, as normally will be the case, the expert has not agreed to be subject to the client's control in giving his or her testimony. Since an expert witness is not subject to the control of the party opponent with respect to consultation and testimony he or she is hired to give, the expert witness cannot be deemed an agent. See Restatement (Second) of Agency 1 cmt. a (1958) ("The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act.")
Because an expert witness is charged with the duty of giving his or her expert opinion regarding the matter before the court, we fail to comprehend how an expert witness, who is not an agent of the party who called him, can be authorized to make an admission for that party.[fn.7] See Michael H. Graham, Federal Practice and Procedure: Evidence 6722, at 502 (Interim Edition 1992) (the authority of the agent to speak as to a subject must be established at trial). We are unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, unless there is a finding that the expert witness is an agent of the party and is authorized to speak on behalf of that party. Accordingly, we find Dr. Burgher's prior trial testimony to be hearsay in the context of the present trial.
Because the testimony of Dr. Burgher is hearsay, we must next inquire whether it falls within any of the hearsay exceptions enumerated in the Federal Rules. Kirk argues that Dr. Burgher's testimony falls within the former testimony hearsay exception of Rule 804(b)(1). In order for former testimony to be admissible as an exception to the hearsay rule: (1) the declarant must be unavailable; (2) testimony must be taken at a hearing, deposition, or civil action or proceeding; and (3) the party against whom the testimony is now offered must have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. See Fed.R. Evid. 804(a)(5), (b)(1).[fn.8] Because Dr. Burgher testified in open court during the state court action, no one disputes that the second element has been satisfied.
Regarding the first element, we note that it is an abuse of discretion for a district court to admit former testimony into evidence under Rule 804(b)(1) without a finding of unavailability. See O'Banion v. Owens-Corning, 968 F.2d 1011 (10th Cir.'92) (district court abused its discretion in admitting former testimony of expert where there was no showing of unavailability). Because there was no finding on the record as to unavailability, if the court based admitting this testimony on Rule 804(b)(1), we hold that the district court abused its discretion in allowing this former testimony into evidence.
Normally, our inquiry would end here after determining that former testimony cannot be admitted absent specific findings of unavailability. However, because of the likelihood that an offer may be made during the retrial of this matter to admit this testimony as former testimony, we believe further discussion is warranted.
We observe that it is the proponent of the statement offered under Rule 804 who bears the burden of proving the unavailability of the declarant. U.S. v. Eufracio-Torres, 890 F.2d 266 (10th Cir.'89); 2 John William Strong et al., McCormick on Evidence 253, at 134 (4th ed.'92) ("The proponent of the hearsay statement must . . . show that the witness cannot be found"). We can find nothing in the record which indicates any "reasonable means" employed by Kirk to procure the services of Dr. Burgher so that he might testify at trial.
Kirk claims that Dr. Burgher, a resident of Nebraska, was beyond her ability to subpoena and was thus unavailable. See Fed.R.Civ.P. 45(c)(3)(A)(ii).[fn.9] However, Kirk made no independent attempt to contact Burgher, offer him his usual expert witness fee, and request his attendance at trial.[fn.10] Because Burgher was never even as much as contacted, Kirk has failed to prove that she used "reasonable means" to enlist his services.
We next address whether Owens-Corning had an opportunity and similar motive to develop the testimony of Dr. Burgher at the prior unrelated state court trial.[fn.11] The similarity of motive requirement assures "that the earlier treatment of the witness is the rough equivalent of what the party against whom the statement is offered would do at trial if the witness were available to be examined by that party." U.S.s v. Salerno, 937 F.2d 797 (2d Cir.'91); see also 2 Steven A. Saltzburg, Federal Rules of Evidence Manual 400 (5th ed.'90) ("The way to determine whether or not motives are similar is to look at the similarity of the issues and the context in which the opportunity for examination previously arose.").
There was no finding by the district court that Owens-Corning had an opportunity and similar motive to examine Dr. Burgher. Further, during oral argument, counsel for Kirk indicated that the only document before the district court from the state court trial was the transcript of Burgher's testimony. The district court did not have the complaint, answer, or jury charge from the state court proceedings. Thus, even if the district court had attempted to make a finding as to opportunity and similar motive, it would have been unable to reach a well-reasoned conclusion based on the information before the district court.[fn.12] Accordingly, we must conclude that Kirk failed to prove that Owens-Corning had an opportunity and similar motive to examine Dr. Burgher.
5. Alternatively, Kirk argues that assuming arguendo it was error to admit the testimony of Dr. Burgher, it was harmless error because the weight of the medical testimony of his other witnesses was overwhelming. In light of our decision to remand for a new trial because the jury was improperly constituted, we need not address whether any evidentiary errors may be harmless.
6. Rule 801(d) of the Federal Rules of Evidence states in relevant part:
(d) Statements which are not hearsay. A statement is not hearsay if --
(2) Admission by party-opponent. The statement is offered against a party and is . . .
(C) a statement by a person authorized by the party to make a statement concerning the subject. Fed.R.Evid. 801(d)(2)(C).
7. In the case before us, unlike Collins, there was no explicit finding on the record that Dr. Burgher was an agent of the defendant. To the extent that Collins holds that an expert witness who is hired to testify on behalf of a party is automatically an agent of that party who called him and consequently his testimony can be admitted as non-hearsay in future proceedings, we reject this rule.
8. Rule 804 of the Federal Rules of Evidence states in relevant part:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Fed.R.Evid. 804(b)(1)
"Unavailability" is defined in Rule 804 as follows:
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant --
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance . . . by process or other reasonable means. R.804(a)(5).
9. Rule 45 of the Federal Rules of Civil Procedure states in relevant part:
(c) Protection of Persons Subject to Subpoenas.
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it --
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person . . . . R.45(c)(3)(A)(ii).
10. At oral argument, Kirk argued that it was the responsibility of Owens-Corning to locate and contact Burgher and establish his availability because the district court requested Owens-Corning to determine whether he would be available to testify. To the extent that the court placed the burden on Owens-Corning to establish the unavailability of Dr. Burgher, it made an error of law in shifting the burden of proof. Kirk then articulated what we term a "convenience" argument that Dr. Burgher was Owens-Corning's expert and Owens was in a better position to locate Burgher because it had Burgher's phone number. To the extent that Kirk is advocating that Owens should undertake the task of locating a witness for Kirk so that she may use that testimony against Owens, we reject any such notion. For the same reasons we protect an attorney's work product from discovery, see R.26(b)(3); Hickman v. Taylor, 329 U.S.495 ('47) ("Inefficiency, unfairness, and sharp practices would inevitably develop . . . . The effect on the legal system would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."), we do not believe that Owens-Corning had any duty to assist Kirk in preparing her case.
11. Again, although we need not reach this issue absent a finding of unavailability, because of the likelihood that an offer may be made during the retrial to admit this evidence as former testimony, we believe further discussion is warranted.
12. For instance, the statement elicited from Dr. Burgher during cross-examination at the state trial may not have warranted redirect by Owens-Corning in light of its theory of defense. See McCormick 302, at 307 ("Circumstances may differ sufficiently between the prior hearing and the present trial to bar admission . . . as where questions on a particular subject would have been largely irrelevant at the earlier proceeding."). Because we do not have the pleadings, we cannot determine whether an opportunity and similar motive existed.
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