Bully v. Hess Oil Virgin Islands Corp.

MEMORANDUM OPINION

(July 2, 2010)

THIS MATTER came before the Court on Defendant Hess Oil Virgin Islands Corp. (hereinafter “HOVIC”) and Defendant Hess Corporation’s *54(hereinafter “Hess”) Motion In Limine to Exclude Trial Testimony from Dr. Richard Bernstein and Deposition Testimony of Non-Party and Non-Corporate Witnesses, filed on October 26, 2009. On November 9, 2009, Plaintiffs filed a Response in Opposition to Defendants’ Motion In Limine to Exclude Testimony from Dr. Richard Bernstein and Certain Deposition Testimony. On November 24, 2009, Defendants filed a Joint Reply to Plaintiffs’ Oppositions to Defendant HOVIC’s Motion In Limine to Exclude Evidence.

FACTS

Plaintiffs filed this action against Defendant HOVIC and Defendant Hess,1 alleging that they developed mixed dust pneumoconiosis as a result of occupational exposure to catalyst at Defendant HOVIC’s refinery on St. Croix, U.S. Virgin Islands. Plaintiffs allege that Defendants possessed and/or exercised control over the work site and assert claims for negligence/premises liability and supplying chattel dangerous for intended use.

DISCUSSIONS

Defendant HOVIC moves in limine for the Court to exclude any and all proffered trial testimony from Dr. Richard Bernstein and deposition testimony of non-party and non-corporate witnesses.

1. Trial Testimony from Dr. Richard Bernstein

Plaintiffs plan to call Dr. Richard Bernstein to testify at trial. Dr. Richard Bernstein is not the treating physician to any of the Plaintiffs in this matter. In Plaintiffs’ Rule 26(a)(1) Supplemental Disclosures, Plaintiffs asserted that Dr. Richard Bernstein “may testify regarding his B-reading Report of the x-ray of Mr. Emile [sic], as well as standards and qualifications for B-reading in general.”2 Defendants argue that, despite Plaintiffs’ designation of Dr. Richard Bernstein as a fact witness and not as an expert witness, Dr. Richard Bernstein will still be testifying to *55expert opinions. Defendants further argue that Dr. Richard Bernstein is prohibited from testifying as an expert witness because Plaintiffs did not produce a signed expert report prepared by Dr. Richard Bernstein regarding Plaintiffs, the standard and qualifications for B-reading in general or a complete statement of all opinions to be expressed and the basis and reasons therefore, as required by Fed. R. Civ. P. 26(a)(1)3 and (2)4 Defendants note that Plaintiffs did provide a single page, unsigned B-reading Report consisting of checkmarks indicating film quality, *56opacities, and negative indications of pleural abnormalities and other abnormalities of Plaintiff Alexander Emile’s x-ray; however, the page was devoid of any complete statements regarding Dr. Richard Bernstein’s opinions or interpretations of Plaintiff Alexander Emile’s x-ray. Defendants cite to Fed. R. Civ. P. 37(c)(1), which provides: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Therefore, Defendants argue that Dr. Richard Bernstein should not be allowed to testify at trial.

Plaintiffs assert that compliance with Fed. R. Civ. P. 26 is irrelevant here because Dr. Richard Bernstein is designated as a fact witness, not an expert witness. In their Opposition, Plaintiffs stated:

“Dr. Bernstein will not offer medical opinions, either on causation in general or whether his reading of an x-ray supports a diagnosis of pneumoconiosis. He is being tendered as a fact witness to explain to a jury what x-rays represent, explain what the National Institute of Occupational Safety and Healthy (hereinafter “NIOSH”) certified ‘B reader’ is, and to recite what he saw and recorded on a standardized ILO form when he viewed the x-ray of Mr. Emile.” See Plaintiffs’ Re*57sponse in Opposition to Defendants ’ Motion In Limine to Exclude Testimony of Dr. Richard Bernstein and Certain Deposition Testimony at 2.

Plaintiffs cite to 5 Y.I.C. § 833, which provides qualifications for witnesses. 5 V.I.C. § 833 requires that the witness has personal knowledge or experience, training or education on the subject matter of such testimony.5 Plaintiffs argue that all the prerequisites have been met by Dr. Richard Bernstein; Dr. Richard Bernstein is a National Institute of Occupational Safety and Healthy (NIOSH) certified “B reader” who has reviewed Plaintiff Alexander Emile’s x-ray and therefore, Dr. Richard Bernstein is qualified through training and education to give factual testimony on this subject.

In their Joint Reply to Plaintiffs’ Opposition, Defendants cited to Hadley v. Pfizer Inc., where the Third Circuit held “that treating physicians so disclosed may testify as to facts within their knowledge, as opposed to offering expert testimony.” 2009 U.S. Dist. LEXIS 47363, at *11 (E.D. Pa. 2009) (citing Frederick v. Hanna, 2007 U.S. Dist. LEXIS 18626, at *19 (W.D. Pa. 2007)).6 Accordingly, Defendants argue that Dr. Richard Bernstein cannot testify as a fact witness because he did not treat any of the Plaintiffs in this matter and Dr. Richard Bernstein cannot *58testify as an expert witness because of Plaintiffs’ failure to comply with Fed. R. Civ. P. 26.

The Court finds that Dr. Richard Bernstein cannot testify as a fact witness to what he perceived of Plaintiffs because he is not the treating physician to any of the Plaintiffs in this matter. The Court further finds Plaintiffs’ Rule 26(a)(1) Supplemental Disclosures’ description of what Dr. Richard Bernstein may testify to at trial, “his B-reading Report of the x-ray of Mr. Emile [sic], as well as standards and qualifications for B-reading in general” is based on scientific, technical or other specialized knowledge within the scope of Fed. R. Evid. 702, and thereby, making Dr. Richard Bernstein an expert witness. FED. R. Evid. 702 provides,

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Emphasis added.

Accordingly, due to Plaintiffs’ failure to comply with Fed. R. Civ. P. 26, Dr. Richard Bernstein cannot testify as an expert witness at trial. Defendants would be unduly prejudiced if Dr. Richard Bernstein is permitted to testify to his expert opinions at trial since Defendants did not have the opportunity to establish whether or not Dr. Richard Bernstein’s testimony would meet the Daubert requirement Therefore, the Court will grant Defendants Motion In Limine to exclude trial testimony from Dr. Richard Bernstein.

2. Deposition Testimony of Witnesses at Trial

Plaintiffs plan to rely on the deposition testimony of the following individuals at trial:

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a. Whether Deposition Testimony of a Non-Party Corporate Witness is Permitted at Trial

Defendants assert that Deposition Testimonies of Uzi Halevy and John C. Willet should not be permitted at trial because they are not adverse parties.7 Both Litwin and Shell have been dismissed from this case. Defendants cite to Fed. R. Civ. R 32(a)(3), which provides that “An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).” Emphasis added. Defendants further cite to Northlake Marketing & Supply, Inc. v. Glaverbel, S.A., where the court granted defendant’s motion in limine to preclude plaintiff from relying upon the deposition testimony of a corporate representative of Foseco, a dismissed defendant. 1996 U.S. Dist. LEXIS 19306, at *2 (N.D. Ill., December 17, 1996). The Northlake Court stated, “with Foseco now a nonparty, [plaintiff] has not satisfied the requirements of Fed. R. CIV. P. 32 as to the use of Money’s (an officer of the dismissed defendant Foseco) deposition.” Id. Accordingly, Defendants request the Court to exclude the deposition testimonies of Uzi Halevy and John C. Willet.8

*60Plaintiffs did not address this point in their Opposition, aside from stating that Uzi Halevy and John C. Willet will be unavailable to testify at trial, as explained below.

The Court wants to bring to Plaintiffs’ attention that, according to Defendants’ Amended Rule 26(a)(3) Pretrial Disclosures, Defendants expect to present Uzi Halevy and John C. Willet as witnesses. Therefore, Plaintiffs cannot contend that Uzi Halevy and John C. Willet are unavailable to testify at trial. The Court will address the unavailability issue in more details below. Assuming arguendo that Defendants are not planning to present Uzi Halevy and John C. Willet as witnesses at trial, Uzi Halevy and John C. Willet’s deposition testimonies should still be excluded at trial because they are no longer adverse parties to this case. Uzi Halevy was deposed as a corporate representative of Litwin and John C. Willet was deposed as a corporate representative of Shell. Since both Litwin and Shell are dismissed from this case, Plaintiffs are no longer adverse parties to Uzi Halevy and John C. Willet. According to Fed. R. Civ. P. 32(a)(3), “An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).” Emphasis added. Accordingly, Plaintiffs have not satisfied the requirements of FED. R. Civ. P. 32(a)(3) as to the use of Uzi Halevy and John C. Willet’s deposition testimonies.

b. Whether Deposition Testimony of a Witness is Permitted at Trial Without a Showing of Unavailability

Fed. R. Civ. P. 32 sets forth the requirements for using depositions at trial. Fed. R. Civ. P. 32(a)(1) provides that “At a hearing or trial, all or part *61of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8).” Defendants assert that the deposition testimonies of Uzi Halevy, Paul Bucknam, Robert Sidler, John D. Piwonka, Orville Henderson, Thomas Fuller and John C. Willet should not be permitted at trial because Plaintiffs failed to show that they are unavailable to testify at trial, as required by Fed. R. Civ. P. 32(a)(4). Fed. R. Crv. P. 32(a)(4) provides:

(4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:

(A) that the witness is dead;

(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition;

(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;

(D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or

(E) on motion and notice, that exceptional circumstances make it desirable in the interest of justice and with due regard to the importance of live testimony in open court to permit the deposition to be used.

Defendants argue that Plaintiffs have not shown that these witnesses are dead, located more than 100 miles from the place of trial or outside the United States or cannot testify because of age, illness, infirmity or imprisonment. Defendants also argue that Plaintiffs have not show that they could not procure the witnesses’ attendance by subpoena or that exceptional circumstances exist to permit the use of these witnesses’ deposition in lieu of live testimony at trial. Accordingly, Defendants request the Court to exclude the deposition testimonies of the foregoing individuals.

*62(1) Unavailability because the witness is more than 100 miles from the place of trial

Plaintiffs counter that Defendants’ Motion In Limine to exclude the deposition testimonies is premature because they have until the date of trial to demonstrate compliance with the requirements of Fed. R. Civ. P. 32. Hartman v. U.S., 538 F.2d 1336, 1345 (8th Cir. 1976). In their Opposition, Plaintiffs demonstrated the unavailability of the abovementioned witnesses through the November 9, 2009 Affidavit of Attorney Thomas Alkon’s Affidavit. In his November 9, 2009 Affidavit, Attorney Thomas Alkon confirmed the following information:

1. John Willett is currently a resident of Houston, Texas.

2. John Piwonka is currently a resident of Texas.

3. Uzi Halevy is currently a resident of Houston, Texas.

4. Thomas Fuller is not employed at Hovensa in the Virgin Islands.

5. Paul Bucknam is employed at the Hess Corporation in New Jersey.9

In their Joint Reply to Plaintiffs’ Opposition, Defendants argue that the witnesses’ unavailability is not determined now but when Plaintiffs seek to introduce their deposition testimony at trial. Defendants also cite to Hartman v. U.S., where the court stated,

“Rule 32(a)(3)10 provides that the deposition of a witness may be offered in evidence in lieu of his testimony if the trial court finds, among other things that the witness is more than one hundred miles from the place of trial. The proximity of the witness to the place of trial is to be determined as of the time at which the deposition is offered.” 538 F.2d at 1345.

According to Defendants’ Rule 26(a)(3) Pretrial Disclosures, Defendants anticipate that all of these individuals will be called as *63witnesses at trial.11 Therefore, Defendants argue that these witnesses cannot be considered unavailable for trial.

The Court wants to bring to Plaintiffs’ attention that, according to Defendants’ Amended Rule 26(a)(3) Pretrial Disclosures, in addition to Uzi Halevy and John C. Willet, Defendants also expect to present Paul Bucknam, Robert Sidler and Thomas Fuller as witnesses. Therefore, Plaiñtiffs cannot contend that Uzi Halevy, John C. Willet, Paul Bucknam, Robert Sidler and Thomas Fuller will be unavailable to testify at trial pursuant to Fed. R. Crv. P. 32(a)(4)(B).

On the other hand, John D. Piwonka and Orville Henderson is not on the list of witnesses expected to be called by Defendants. The Court finds that John D. Piwonka, as a current resident of Texas, is located more than 100 miles from the place of trial. Therefore, John D. Piwonka is an unavailable witness under Fed. R. Civ. P. 32(a)(4)(B) and his deposition testimony will be permitted at trial. However, the Court does not find Orville Henderson to be an unavailable witness under Fed. R. Civ. P. 32(a)(4)(B) because Attorney Thomas Alkon’s November 9, 2009 Affidavit did not mention Orville Henderson’s current residence. Therefore, at this juncture, Orville Henderson’s deposition testimony will be excluded at trial.

(2) Unavailability because Plaintiffs could not procure the witness’s attendance by subpoena

Additionally, Plaintiffs also claim that a duly licensed Virgin Islands process server has been attempting to locate all seven witnesses in the Virgin Islands and once all reasonable steps have been taken by the process server, a Return of Service will be produced. Accordingly, Plaintiffs assert that the deposition testimonies of the abovementioned witnesses should be permitted at trial because the conditions enumerated in Fed. R. Civ. P. 32(a)(4)(D) have been met.

As iterated above, according to Defendants’ Rule 26(a)(3) Pretrial Disclosures, Defendants anticipate that some of these individuals will be called as witnesses at trial. Therefore, Defendants argue that Plaintiffs will *64be unable to demonstrate these witnesses’ unavailability púrsuant to Fed. R. Civ. P. 32(a)(4)(D).

The Court finds that Plaintiffs have not duly tried to procure Paul Bucknam and Robert Sidler’s attendance by subpoena. In Defendants Amended Rule 26(a)(3) Pretrial Disclosures, it states that “Persons who hold current management positions at HOVIC or Hess and 30(b)(6) witnesses that are listed below should be contacted through counsel for HOVIC and Hess.” Paul Bucknam and Robert Sidler were both deposed as corporate representatives of Defendant Hess. If Plaintiffs wish to have Paul Bucknam and Robert Sidler’s testimony at trial, they should serve Defendant HOVIC or Defendant Hess’ counsel rather than relying on Paul Bucknam and Robert Sidler’s deposition testimonies at trial. Therefore, the Court does not find Paul Bucknam and Robert Sidler to be unavailable witnesses under Fed. R. Civ. P. 32(a)(4)(D).

In regard to the remaining witnesses, Uzi Halevy, John C. Willet, Orville Henderson and Thomas Fuller,12 the Court cannot find that Plaintiffs have duly tried to procure their attendance by subpoena until Plaintiffs present a Return of Service to the Court. Therefore, the Court does not find them unavailable as defined under Fed. R. Civ. P. 32(a)(4)(D) at this juncture. Accordingly, the deposition testimonies of Paul Bucknam, Robert Sidler, Uzi Halevy, John C. Willet, Orville Henderson and Thomas Fuller will be excluded at trial.

CONCLUSION

The Court finds that Dr. Richard Bernstein will be testifying based on scientific, technical or other specialized knowledge within the scope of Fed. R. Eved. 702, despite being labeled as a fact witness. The Court finds that Uzi Halevy and John C. Willet are no longer adverse parties to Plaintiffs, and therefore, their deposition testimonies cannot be permitted at trial pursuant to Fed. R. Crv. P. 32(a)(3). The Court finds John D. Piwonka to be unavailable for trial, as defined under Fed. R. Civ. P. 32(a)(4)(B), and therefore, his deposition testimony will be permitted at *65trial.13 The Court does not find Uzi Halevy, Paul Bucknam, Robert Sidler, Orville Henderson, Thomas Fuller and John C. Willet to be unavailable for trial, as defined under FED. R. Civ. P. 32(a)(4)(B), and therefore, their deposition testimonies will be excluded at trial. And at this time, the Court does not find Uzi Halevy, Paul Bucknam, Robert Sidler, Orville Henderson, Thomas Fuller and John C. Willet to be unavailable for trial, as defined under Fed. R. Civ. P. 32(a)(4)(D), and therefore, their deposition testimonies will be excluded at trial. Accordingly, the Court will grant in part and deny in part Defendant HOVIC’s Motion In Limine Exclude Trial Testimony from Dr. Richard Bernstein and Deposition Testimony of Non-Party and Non-Corporate Witnesses.