Opinion
80-CV-960, 80-CV-930
July 27, 2001
MARISCAL WEEKS McINTRYRE GLENN M. FELDMAN, ESQ. FRIEDLANDER ATTORNEYS FOR PLAINTIFF-INTERVENORS, Phoenix, Arizona.
RUBINBAUM LLP MARTIN R. GOLD, ESQ., Attorneys for Plaintiffs RAYMOND J. HESLIN, ESQ., Cayuga Indian Nation of New York, New York, NY.
HON. ELIOT SPITZER DAVID B. ROBERTS, Attorney General of the CHRISTOPNER HALL State of New York HOWARD ZWICKEL, Attorney for State Defendants JOHN J. PICKETT, The Capitol Asst. Attorneys General, Albany, N.Y.
U.S. DEPARTMENT OF JUSTICE, HANK MESHORER, Environment Natural Division ROGER A. MARTELLA, JR., Attorney for United States Assistant U.S. Attorneys Special Litigation Section, Washington, D.C.
INTERIM ORDER
On July 24, 2000 during the course of the trial of Phase II in this matter the United States Government, through its counsel Hank Meshorer, proffered to the court a reading into the record of the affidavit of Francis G. Hutchins, Ph.D., dated June 25, 1991. Counsel for the State of New York, Christopher Hall, objected to same. The Government's offer of this affidavit was predicated upon its contention that the same was not hearsay pursuant to Fed.R.Evid. rule 801(d)(2) because it constitutes an admission by a party opponent. The defendant State of New York objected to this proffer, taking the position that said affidavit was not a party opponent admission by the State defendants; that affiant Hutchins was never retained by the State defendants; and that he was an expert for the non-State defendants, namely, the Counties. Co-Counsel for the State, Howard Zwickel, pointed out to the court that this affidavit was submitted at pretrial proceedings in connection with cross-motions for summary judgment on the issue of laches, and that since the State was not offering Dr. Hutchins' testimony at trial, it could not be an admission which would bind the State.
Mr. Martella on behalf of the United States responded that this affidavit was filed with the court on June 26, 1991, as an attachment to the
"MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT;"
that the memorandum was a joint brief on behalf of the non-State defendants and the State of New York and was signed by Assistant Attorney General David B. Roberts on behalf of the State. Mr. Martella further referred to the United States' exhibit G-445, a memo from Attorneys Roberts and Hall to the State's expert witness von Gernet, wherein it indicates, among other things, that the Hutchins' affidavit is to be considered by von Gernet in forming his "opinions with respect to the Cayugas delay". See Tr. (7/24/00) at 3693-98. The offer of the affidavit was confined to the material highlighted in black in same. (See id. at 3700) The court stated that it would consider it offered as to the high lighted portions and reserved on the admissibility of same pending post-trial briefs.
After due consideration of the Government's revised post-trial memorandum of law (pp. 68-71) and the defendant State's post-hearing reply memorandum (pp. 38, 39), the court concludes that the highlighted portions of the Hutchins affidavit are admissible pursuant to Fed.R.Evid. 801(d)(2)(B). It appears that, inadvertently, this document was not marked as an exhibit at the time of its offer, although it was filed with the court on June 16, 2000 and given docket number 794. The court directs the Clerk to now mark the same as exhibit G-600, and the same is received as to its highlighted portions and will be given due consideration by the court in connection with the proceedings now before it.
IT IS SO ORDERED.