Opinion
04 Civ. 9651 (KNF).
June 2, 2010
MEMORANDUM AND ORDER
I. INTRODUCTION
The Second Circuit Court of Appeals remanded this case to the Court to "retry only the factual issue of whether the allision [alleged by the plaintiffs] occurred and the issue of causation, with the burden of proof on the Plaintiffs." Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 215 (2d Cir. 2009). The Second Circuit found that the Court applied improperly the "Oregon Rule," see The Oregon, 158 U.S. 186, 15 S. Ct. 804 (1895), to create a presumption with respect to causation, and abused its discretion, when it precluded Hornbeck from presenting opinion testimony from Roderic Ellman ("Ellman") and Pierce Power ("Power"), two professional engineers.
Before the Court is Hornbeck Offshore Transportation LLC's ("Hornbeck") motion to: (1) introduce, into the trial record, the facts and data upon which Ellman and Power relied in forming the opinions about which each will now testify; (2) present the direct testimony of its witnesses orally, rather than in writing; and (3) elicit testimony from: (i) John Bowie ("Bowie"); (ii) David London ("London"); (iii) Christopher Todino ("Todino"); (iv) Louis Bruno ("Bruno"); (v) A. Wayne Cahilly ("Cahilly"); (vi) Richard Eberhart (Eberhart"); (vii) Steven White ("White"); and (viii) John Flynn ("Flynn"). In addition, Hornbeck requests that the Court withdraw all credibility findings it made previously, or, alternatively, that the Court recuse itself and grant Hornbeck leave to withdraw its consent to have a magistrate judge conduct all trial proceedings in this action and order entry of judgment.
The plaintiffs oppose the motion.
II. BACKGROUND
At the trial of this action, the plaintiffs sought to prove that the defendant's barge, ENERGY 2201, while being pulled along the Westchester Creek by its tug, Stapleton Service, came into contact with the relieving platform on the plaintiffs' Bronx County property, thereby: (1) weakening the relieving platform and, ultimately, causing its collapse; and (2) damaging an office building adjacent to the relieving platform. The trial witnesses' direct testimony was presented to the Court, via affidavits. Thereafter, the witnesses were cross-examined, by counsel, in open court, on the facts detailed in their respective affidavits. The Court published its findings of fact and conclusions of law, as required by Fed.R.Civ.P. 52, on October 23, 2007. The Clerk of Court entered judgment, for the plaintiffs, on January 8, 2008. Hornbeck appealed from the judgment.
The relieving platform has also been referred to as the "bulkhead" structure by the parties.
The Second Circuit reversed the judgment and, as noted above, directed the Court to "retry only the factual issue of whether the allision [the plaintiffs allege] occurred and the issue of causation, with the burden of proof on the Plaintiffs."Zerega, 571 F.3d at 215. The Second Circuit authorized the Court to "rely on the existing record, supplemented by" the testimony of Ellman and Power, "and whatever additional evidence the [Court] permits." Id. The Court was directed, by the Second Circuit, to "make distinct determinations as to whether the allision, if it occurred, has been shown to have caused damage to the bulkhead and to the office building. If causation is found, as to either or both structures, the findings already made as to the amount of damages sustained by both structures may stand."Id.
III. DISCUSSION
A. Evidence Relied Upon by Expert Witnesses
Rule 703 of the Federal Rules of Evidence provides the following:
The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Hornbeck asserts that Fed.R.Evid. 703 makes all facts and data Ellman and Power relied upon, in forming their respective opinions, admissible evidence, regardless of whether those facts or data would otherwise be inadmissible because, for example, they run afoul of proscriptions against hearsay.
The defendant's contention that an expert witness' mere reliance upon facts or data in forming the opinion(s) the witness will present at a trial renders the facts or data admissible, as substantive evidence, regardless of whether the facts or data relied upon by the witness would otherwise be inadmissible, under the Federal Rules of Evidence, is wrong. While an expert witness can testify to his or her opinions, arrived at by applying the witness' expertise to otherwise inadmissible evidence, the witness' opinion testimony, informed by inadmissible evidence, is permitted, "in that limited instance, [because] the evidence is not being presented for the truth of the matter asserted." United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007); see United States v. Dukagjini, 326 F.3d 45, 57-58 (2d Cir. 2003); Gissinger v. Yung, No. CV-04-0534, 2007 WL 2228153, at *5 (E.D.N.Y. July 31, 2007). The inadmissible evidence, upon which the expert has relied, may be used solely to explain the basis(es) for the expert's opinion. Therefore, in the case at bar, to the extent that Ellman and Power, in the affidavits containing their direct trial testimony, have discussed the facts or data which informed their respective opinions, that is permissible. However, if any of those facts or data has no independent basis for being admitted into evidence, it will not be received as substantive evidence in the case.
Fed.R.Evid. 703 informs that the touchstone for permitting an expert witness to testify to opinions, based on hearsay or other inadmissible evidence, is that experts in the field reasonably rely on such evidence in forming their opinions. In the instant case, the Second Circuit has directed the Court to receive, in evidence, the opinion testimony of Ellman and Power, which, according to the submissions made in connection with the motion before the Court, were based, in part, upon inadmissible evidence. The record before the Court is barren of any competent evidence establishing that experts in the engineering discipline(s), pertinent to the case at bar, reasonably rely on the type(s) of inadmissible evidence Ellman and Power relied on in forming their opinions. Therefore, a necessary predicate to receiving the opinions of Ellman and Power, to the extent they are based on inadmissible evidence, has never been established.
B. Additional Witness Testimony
The defendant maintains that the testimonial evidence from Bowie, London, Todino, Bruno, Cahilly, Eberhart, White and Flynn, and all associated demonstrative evidence, must be received in evidence by the Court. However, Hornbeck ignores the Second Circuit's directive that the Court employ its discretion in determining which evidence, beyond the testimony of Ellman and Power, it will permit the parties to present on remand. See Zerega, 571 F.3d at 215. In the exercise of its discretion, as detailed below, the Court has determined that, to aid it in resolving the factual issues remanded for trial — whether the allision occurred and causation — testimony from each of the witnesses proposed by the defendant is not necessary.
1. Bowie's Testimony
The Second Circuit determined that testimony Hornbeck sought to elicit from Bowie, respecting Laura Bruno, an officer of plaintiff Fred Todino Sons, Inc. ("Todino Sons"), was precluded improperly by the Court, although the error was harmless. Id., at 214. The Court has determined to allow the trial record to be supplemented by the inclusion of Bowie's previously precluded testimony.
2. Testimony from London, Flynn, Cahilly and Eberhart
The Court finds that, despite the defendant's contention otherwise, the testimony it proposes to elicit from London, Flynn and Eberhart, as fact witnesses, and Cahilly, as an expert witness, is evidence it had at its disposal, at the time of the trial, and elected not to use. For example, London, an engineer who assessed the relieving platform on the plaintiffs' property before it collapsed, and Flynn, an engineer who inspected the office building on the plaintiffs' property after the relieving platform collapsed, submitted to pretrial depositions, in connection with this action. Therefore, the parties were knowledgeable about the evidence each could impart at trial. Cahilly, an arborist, was identified in the parties' Amended Pretrial Order, as an expert witness for the defendant. Thus, Hornbeck was acutely aware of the nature of the opinion testimony he could have offered as a trial witness. Moreover, Eberhart was the captain aboard the defendant's tug, Stapleton Service, on October 29, 2002, the date on which the plaintiffs maintain an allision occurred. Consequently, Eberhart was known to Hornbeck and, presumably, was available to render assistance to Hornbeck in defending against this action, including testifying as a trial witness. No utility exists in allowing Hornbeck a second opportunity to present evidence it elected not to use previously, where the Court finds that evidence is not likely to aid it appreciably in deciding the two issues remanded for retrial. However, based on the defendant's reply papers, the Court is persuaded that receiving opinion testimony from London may aid it in determining whether an allision occurred and the issue of causation. Therefore, if Hornbeck can demonstrate to the Court, as contemplated by Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), that London is qualified to give opinion testimony, the Court will permit the trial record to be supplemented with that testimony.
3. Opinion Testimony from White
At the trial, White gave opinion testimony on the issue of the plaintiffs' damages. The defendant wishes to summon White to testify "on the issue of liability, not damages," because it believes, mistakenly, that White's trial testimony was not limited to opining on the measure of the plaintiffs' damages. Hornbeck's ignorance of the limited purpose for which the Court permitted White to offer opinion testimony is curious. A simple reading of the declaration containing White's direct trial testimony, submitted to the Court after it found him qualified to give opinion testimony, makes clear that White's testimony was limited solely to the issue of damages, specifically, the "probable costs [to replace] in kind the plaintiffs' relieving platform." Therefore, allowing Hornbeck to elicit opinion testimony from White, on a subject about which he was not qualified to give opinion testimony, will not be allowed.
4. Re-Examination of Todino and Bruno
The parties have already elicited trial testimony from Todino, the president of plaintiff Zerega Avenue Realty Corp., and Bruno, an employee of Todino Sons. Hornbeck seeks to examine them anew to attempt to impeach their credibility regarding the condition of the plaintiffs' property prior to the collapse of the relieving platform.
Hornbeck proposes to challenge Todino's and Bruno's credibility in two ways. First, it wishes to confront them with various photographs of the plaintiffs' property — some of which were taken by Bruno. In a number of the photographs, sinkholes and excavations on the relieving platform are visible; some of these openings on the platform are filled with standing water. During the trial, Hornbeck attempted to place some of the photographs into evidence; but, owing to its failure to comply with applicable provisions of the Federal Rules of Evidence, it was unable to do so. Hornbeck challenged the Court's evidentiary ruling, on this matter, in its appeal to the Second Circuit. The Second Circuit found that the Court sustained the plaintiffs' objections properly. Allowing Hornbeck to ignore the law-of-the-case doctrine, see O'Hagan v. Soto, 565 F. Supp. 422, 426 (S.D.N.Y. 1983), by revisiting a matter decided against it on appeal, is not warranted.
Second, Hornbeck seeks to re-examine Todino and Bruno for the purpose of attacking their credibility, based, upon opinion testimony to be elicited from Ellman and Power, informed, in part, by their reliance on London's deposition testimony, his photographs of the plaintiffs' premises and his daily activity reports. The Court finds that this is unnecessary. Hornbeck will be free to make any argument to the Court the record evidence supports concerning: (1) the verisimilitude of the testimony given by Todino and Bruno; (2) the weight, if any, their testimony should be accorded; and (3) any appropriate inferences that should be drawn, by the Court, based upon the trial record, as supplemented, on remand. Thus, allowing Hornbeck an additional opportunity to examine Todino and Bruno is neither reasonable nor appropriate.
C. Direct Testimony Via Affidavit
In its most pertinent part, Fed.R.Civ.P. 43(a) explains that "[a]t trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise." Fed.R.Evid. 611(a) provides that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for ascertainment of the truth; (ii) avoid needless consumption of time; and (iii) protect witnesses from harassment or undue embarrassment."
The defendant alleges that Fed.R.Civ.P. 43(a) "requires that testimony of witnesses be presented live and not by affidavit." As noted above, during the trial of this action, each witness' direct testimony was presented, in writing, via affidavit. Thereafter, each witness was cross-examined, in open court, respecting the facts recited in the witness' affidavit. By employing this method, the Court construed Fed.R.Civ.P. 43(a), see Fed.R.Civ.P. 1, and applied Fed. Evid. 611(a) to ensure that: (1) an efficient and economical trial would be afforded the parties; (2) testimony would be elicited effectively; and (3) the Court would be able to observe each witness' demeanor, under cross-examination, and, thereby, make reasonable credibility determinations. The Second Circuit has expressed its approval of the procedure employed by the Court, particularly when the parties to an action agree to it.See Ball Interoceanica Corp., 71 F.3d 73, 77 (2d Cir. 1995).
Hornbeck contends it did not — and does not — consent to presenting its witnesses' direct testimony via affidavit. However, the defendant fails to make citation to any pretrial proceeding at which, or any pretrial submission through which, it expressed its lack of consent to the procedure about which it objects. In like manner, Hornbeck makes no citation to the trial record to establish it lodged a protest to the mode in which the parties presented their witnesses' direct testimony. Moreover, Hornbeck made no assertion, in its appeal to the Second Circuit, that the Court erred either because it received the trial witnesses' direct testimony in writing, over Hornbeck's objection, or did so without Hornbeck's consent. Inasmuch as Hornbeck's claimed lack of consent is not corroborated by citation to the pretrial record, the trial record or any argument it advanced on appeal, the Court cannot conclude, as Hornbeck urges, that the defendant did not consent to presenting its witnesses' direct testimony, in writing, via affidavit.
In any event, even if Hornbeck had withheld its consent, Fed.R.Evid. 611(a) makes clear that it remains the providence of the Court to determine reasonably the mode in which trial evidence will be presented. Therefore, for all the reasons set forth above, Hornbeck's application, to have its witnesses present their direct testimony orally, in open court, is denied.
D. Credibility Findings
It is axiomatic that when a judge presides at a trial, without a jury, "issues of credibility, and those arising out of contradictory testimony, other inconsistencies and the general welter of exaggeration, hesitancy and half-truths" are to be disposed of by the judge. M.W. Zack Metal Co. v. S.S. Birmingham City, 311 F.2d 334, 336-37 (2d Cir. 1962).
Hornbeck demands that all credibility determinations made by the Court, on the basis of evidence adduced at the trial, be vacated, because the credibility of the testimony given previously by the plaintiffs' witnesses will be underminded by "the substantial new evidence that will be introduced" by Hornbeck.
The trial record will be supplemented with additional evidence. The Court will have to consider this additional evidence along with all other evidence existing in the trial record to determine whether an allision occurred and the issue of causation. In analyzing the record, as a whole, some determinations made previously, by the Court, concerning witness credibility, may of necessity, have to be revisited. This does not mean, as Hornbeck urges, that all credibility findings made previously have to be upset. At this juncture, it is not possible to know which, if any, credibility findings made previously will have to be jettisoned and which may remain intact. Once the trial record is supplemented and then closed, the Court will review the entire record and, thereafter, make the findings necessary to resolve the issues the Second Circuit's mandate directs it to resolve. Therefore, Hornbeck's request, that the Court issue an order withdrawing all credibility findings made previously, is denied.
E. Recusal
Judicial rulings alone rarely constitute an appropriate basis for a bias or partiality motion. See Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994); Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009). Hornbeck requests that the Court recuse itself, if it denies the defendant's request for an order withdrawing all credibility findings made previously. Hornbeck determined to make its recusal request prior to knowing what action would be taken on its application. The sole basis for Hornbeck's recusal request, a judicial ruling, is no ground upon which the Court must disqualify itself from handling this action. See 28 U.S.C. § 455. Accordingly, Hornbeck's recusal request is denied.
F. Withdrawal of Consent to Magistrate Judge's Jurisdiction
28 U.S.C. § 636(c) authorizes a full-time magistrate judge to "conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case," upon the consent of the parties. 28 U.S.C. § 636(c)(1). 28 U.S.C. § 636(c)(4) advises that:
The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under this subsection.
Hornbeck, expecting to be disappointed in its quest to obtain an order from the Court withdrawing all credibility findings made previously, or disqualifying itself from continuing to preside over this action, requested leave to withdraw its consent to have a magistrate judge conduct all trial proceedings and order entry of judgment. Any party is free to withdraw consent to proceeding before a magistrate judge, upon making a showing of extraordinary circumstances to the district judge who issued the reference to the magistrate judge. Hornbeck has not identified the extraordinary circumstances that warrant its seeking leave of the Court to move to withdraw its consent to the Court's jurisdiction. That fact notwithstanding, Hornbeck, like any litigant, is free to make any motion it believes, in good faith, the circumstances justify. However, insofar as Hornbeck's motion must be directed to the district judge who referred this matter to the undersigned, the Court will not entertain its application.
IV. CONCLUSION
For the reasons set forth above, the defendant's motion is granted, in part, and denied, in part. This order resolves Docket Entry No. 128.SO ORDERED: