Opinion
92 Civ. 7584 (CSH)
September 11, 2000
MEMORANDUM AND OPINION
By letters dated August 22 and 25, 2000, counsel for defendant First Fidelity Bank moved the Court for an order permitting the substitution of Howard C. Buschmann as an expert witness for First Fidelity on issues of bankruptcy law. If that motion were granted, Mr. Buschmann would be substituted for Robert L. Ordin, the witness previously identified by First Fidelity as its expert on this subject.
Counsel for First Fidelity avoided referring to their letters as a "motion," although that is what the request clearly amounts to. Presumably counsel had in mind this Court's June 8, 2000 order, which provided as follows:
No further pre-trial motions will be entertained by the Court subsequent to August 15, 2000; provided however, that the parties are not precluded from making motions or voicing objections on evidentiary issues during the trial if the cause of the controversy was not reasonably foreseeable by counsel prior to the August 15, 2000 deadline.
Plaintiffs objected to First Fidelity's substitution of expert witnesses at a date so close to the beginning of trial, which commenced on September 11, 2000.
At a hearing conducted on September 6, 2000, the Court denied First Fidelity's motion in an oral ruling from the bench. This Opinion states the Court's reasons.
The Federal Rules of Civil Procedure contain particular provisions with respect to the discovery of an adverse party's expert witnesses. Rule 26(a)(2) requires a party to disclose to other parties the identity of expert witnesses it intends to call and to furnish the adverse parties with copies of the experts' written reports. Rule 26(b)(4) provides for the deposition of an adverse expert witness, thus identified, under certain circumstances.
The first trial of this case took place before Judge Mukasey in March 1998. During pre-trial discovery, First Fidelity had identified Robert L. Ordin as its expert witness on bankruptcy law questions. At that time Ordin was actively engaged in the practice of law, specialized in bankruptcy, had written a book on bankruptcy practice, and appeared as a panelist in several national panels on bankruptcy law. During the discovery process Ordin produced a written report stating his opinions. Ordin's deposition was taken. While Ordin attended the trial in March 1998, First Fidelity did not call him as a witness.
Following a jury verdict in the defendants' favor, Judge Mukasey entered an order dismissing the complaint. Plaintiffs appealed and the Second Circuit reversed. See LNC Investments, Inc. v. First Fidelity Bank, N.A. New Jersey, 173 F.3d 454 (1999). In the ruling most pertinent to the present motion, the Court of Appeals held that the District Court erred in leaving the jury to decide if plaintiffs' claims would have achieved superpriority status if the defendant Trustees had filed on plaintiffs' behalf a lift stay/adequate protection motion and the bankruptcy court denied it. The Court of Appeals held that the District Court should have decided that question as a matter of law. In remanding the case for a new trial, the Court of Appeals directed the District Court to decide that question in advance of trial.
On remand the case was reassigned to me. In an opinion dated March 31, 2000, I held that the denial by the bankruptcy court of a lift stay/adequate protection motion would not automatically confer superpriority status upon the plaintiffs' claims.
The second trial was scheduled to begin on April 24, 2000. Prior to that date, however, I certified my March 31, 2000 Opinion on the superpriority issue for interlocutory appeal under 28 U.S.C. § 1292(b). That seemed to me to be a practical course to follow, but the Second Circuit did not agree and refused to accept the certification. The trial was then scheduled for September 11, 2000.
During the weeks between March 2000 and the present, the parties have devoted considerable energy to attempts to improve their litigation positions for the second trial. For the most part, those efforts have taken the form of a series of motions whereby one side seeks to preclude the other side from offering evidence on a particular issue. The motion most pertinent to the present issue was the defendants' motion to preclude plaintiffs' expert witnesses, Klee and White, who had testified at the first trial, from giving their opinions as to what Bankruptcy Judge Lifland would probably have done if the defendants had made a lift stay/adequate protection motion on plaintiffs' behalf sooner than they did. I denied defendants' motion to exclude that expert opinion testimony in a decision dated July 24, 2000.
Counsel for First Fidelity state that they had not intended to call Ordin to testify at the second trial originally scheduled for April. However, counsel state, "the July 24 Opinion focused our minds on what might be needed to rebut the opinions of Ken Klee and Professor White." Affidavit of Richard W. Hill, Esq. at ¶ 5. Apparently counsel for First Fidelity concluded that they would need Ordin to testify after all. On August 4, 2000, Hill called Ordin, who resides in California, to arrange his availability to testify at the trial scheduled to begin on September 11. During that conversation Ordin advised Hill "that he was retired and for that reason and because of stress caused by the practice of law would be unavailable for trial." Hill Affidavit at ¶ 6. Hill had a number of subsequent telephone conversations with Ordin and members of his former firm, but on August 15 received Ordin's final decision that he would not be available to testify. Id. at ¶ 12. First Fidelity's counsel began a search for a substitute expert. They located Howard C. Buschmann (a former bankruptcy judge of this District) on August 25. First Fidelity thereupon made its motion to substitute Buschmann for Ordin.
The record on this motion includes an affidavit by Ordin, sworn to on August 30, 2000, which gives particulars with respect to Ordin's physical condition and his unavailability to testify at the trial in New York this month. Ordin will be 76 years of age on December 22, 2000. Affidavit at ¶ 1. As noted, Ordin had attended the first trial before Judge Mukasey in March 1998. In August 1998, Ordin retired from the practice of law, sold his law library, transferred to others all future writing and editing assignments for his bankruptcy text book, and declined to act further as a bankruptcy panelist. That retirement was the result of a cardiac condition for which Ordin was treated by an internist and a cardiologist in Santa Monica, California, whose names and addresses Ordin gives in his affidavit. ¶ 6. Ordin's affidavit concludes with these averments:
d. These doctors advised me that my heart condition was directly related to stress, and that unless I took steps to reduce the source of such stress, my heart condition could not be controlled or alleviated. They both agreed that the demands of my law practice were undoubtedly a major contributing factor with respect to my stress symptoms.
7. Since my retirement, my stress symptoms have almost entirely disappeared. I now attend UCLA, auditing courses in English Literature. (no tests; no written assignments; no grades).
8. Within a short time after retiring, I was able to reduce my medication by almost one-half; and, moreover, have experienced a substantial reduction in stress symptoms.
9. I have followed the advice of my physicians, and I am unwilling to become engaged in any activities related to the practice of law, either as an attorney, or as an expert witness, and have declined all offers of employment as such.
Ordin Affidavit ¶¶ 6(d)-9.
Counsel for plaintiffs oppose the substitution of Buschmann. They contend that the substitution motion is untimely, and that if it were allowed, the trial would have to be put off again so that plaintiffs' counsel could examine Buschmann's written report (which apparently does not yet exist), conduct his deposition, and otherwise prepare to meet his testimony.
Counsel for First Fidelity reply, with as much grace as they are able to muster, that they would be pleased to present Buschmann for a deposition and that First Fidelity would not oppose a continuance of the trial if requested by plaintiffs. But plaintiffs do not wish a continuance. They expressed a strong desire to have the trial commence on September 11, a date which this Court set on June 8, 2000.
In these circumstances, I deny First Fidelity's motion to substitute Buschmann for Ordin as its expert witness. The motion is untimely, to state the proposition mildly. The motion was not made by August 15, 2000, the cutoff date for pre-trial motions prior to the September 11 trial date, and First Fidelity offers no adequate reason why the motion was not made much earlier than that. Even accepting Hill's assertion that counsel for First Fidelity had concluded not to call Ordin at the second trial originally scheduled for April, counsel should have at least contemplated the possibility that First Fidelity's motion to exclude the testimony of Klee and White, plaintiffs' bankruptcy experts, might be denied, as indeed it was in the July 24, 2000 opinion. Such an assumption would, to coin a phrase, be imprudent. There is no justification for counsel's waiting until August 4, 2000 to inquire into Ordin's advisability. That inquiry should have been made in advance of the late April date originally selected for the second trial, at which time the various evidence-preclusion motions were being exchanged by the parties. Had counsel for First Fidelity inquired at that time into Ordin's availability in case of need at the second trial, they would have learned that Ordin had retired for medical reasons as long ago as August 1998.
First Fidelity is not entitled in these circumstances to impose upon plaintiffs a further continuance of the trial which would obviously be necessary to permit plaintiffs' further trial preparation if the Buschmann substitution were allowed. The situation is the result of First Fidelity's action, or more accurately inaction, and it would not be fair to disturb plaintiffs' arrangements for a trial beginning on September 11.
For the foregoing reasons, and in the exercise of my discretion, I denied First Fidelity's motion to substitute Mr. Buschmann for Mr. Ordin as their expert witness.
In the alternative, First Fidelity asks leave to introduce Ordin's deposition at the second trial on the basis of his unavailability to testify. Counsel for plaintiffs oppose that application as well. They profess to regard Ordin's demeanor as unimpressive, and prefer to have his deficiencies displayed before the jury. That should be required, plaintiffs contend, because the proof of Ordin's unavailability to testify at the second trial is insufficient.
There is no substance to these contentions. Rule 32(a)(3)(c), Fed.R.Civ.P., provides that the deposition of any witness, whether a party or not, is admissible at the trial if "the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment." Ordin's present circumstances as revealed in his August 30, 2000 affidavit clearly satisfy the first three of these four alternative indicia of unavailability. Plaintiffs' contention that the proof on this issue is insufficient borders on the frivolous. Plaintiffs' counsel say that during the March 1998 trial, Ordin appeared sufficiently robust to them to negate a finding of unavailability for medical reasons in September 2000. However, Ordin's affidavit demonstrates that the symptoms he experienced and the medical advice he received in August 1998 led to his retirement from the arenas of litigation combat. Ordin is a distinguished officer of the court and I have no reason to doubt the truthfulness of his affidavit; surely plaintiffs give me no basis for doing so. The fact of the matter is that the infirmities of age overtake us more suddenly and stealthily than we would prefer; perhaps my own awareness of that melancholy reality exceeds that of counsel. Certainly it is fanciful to suggest that Ordin orchestrated his retirement in August 1998 from the profession to which he had dedicated his life in order to lay the ground for a spurious claim of unavailability for a possible second trial of this case two years later.
It follows that First Fidelity may offer Ordin's deposition at the trial if so advised. If First Fidelity offers any part of that deposition then plaintiffs may offer all of it.
At the September 6 hearing, plaintiffs' counsel raised the question whether they could offer selections from Ordin's deposition as part of plaintiffs' case in chief. Plaintiffs' theory would appear to be that Ordin's opinions constitute admissions binding upon First Fidelity as the result of First Fidelity retaining Ordin as an expert to express those opinions. That question has not been fully briefed and I express no present view with respect to it, except to say that in that posture, plaintiffs would be the proponents of the evidence and would bear the burden of demonstrating that Ordin's deposition testimony constitutes admissions binding upon First Fidelity under the Rules of Evidence and the pertinent caselaw.
For these reasons, First Fidelity's motion to substitute expert witnesses was denied.