Use of opposing party's expert's transcript is not automatically barred
Teva Pharmaceuticals USA, Inc. et al., v. Abbott Laboratories et al., No. 02-1512-SLR; Impax Laboratories, Inc. v. Abbott Laboratories, et al., No. 03-120-SLR; In re Tricor Direct Purchaser Antitrust Litigation, No. 05-340-SLR, November 5, 2008.
Robinson, J. The Court provides pre-trial guidance as to when a party may use the deposition testimony from the opposing party’s expert who is not expected to testify at trial.
Departing from her pervious view of experts as impartial witnesses, finding support for an agency relationship between the expert and the supporting party. It is therefore unclear why a statement adverse to the supporting party should not be admissible against that party. The Court outlines factors to consider under Fed. R. Evid. 403 to determine whether the prejudice substantially outweighs the probative value of the testimony, including whether the testimony is cumulative. Mischief can be minimized by allowing the party to use the transcript without identify the expert as associated with the opposing party and/or requiring the party to pay the costs of the deposition. The Court was without sufficient information to rule and required the parties to identify designations.
