Defense Fights Admission of Documents
The main action in an otherwise mundane afternoon in court revolved around government exhibit 180. Exhibit 180 is a Grace memo from a Dr. Borgstedt to Dr. Yang regarding a draft report of the final results of the Grace hamster study. Borgstedt was reviewing the draft along with a Dr. Smith, and in the memo Borgstedt mentioned to Yang that Smith was substantially revising the draft report.
The government attempted to introduce exhibit 180 during its direct examination of Duecker, who was copied on the memo but did not remember receiving it, and reading it did not refresh his memory. Because Duecker could not remember the document or its contents, defense attorney Krakoff objected to the admission of the memo, and Judge Molloy did not allow the document into evidence.
After the jury left the courtroom, government prosecutor Cassidy again requested that 180 be admitted into evidence. Cassidy recognized that Duecker could not testify about the content of the document, but because the defense stipulated to the authenticity of the memo in a pretrial stipulation hearing before Judge Ostby, he believed it should be admitted into evidence. Stipulation is a time-saving procedure wherein one party admits to the admissibility of evidence prior to trial.
Krakoff responded that the only reason the government wanted to admit 180 was because it highlighted the substantial changes made from the draft report to the final report of the hamster study results. Apparently these changes are damaging to Grace’s case, and Krakoff pointed out that both the draft and the final reports were admitted into evidence; thus, the jury can determine the differences between the reports for themselves. Krakoff argued that the memo was inadmissible for the following reasons: it is highly prejudicial to Grace because Borgstedt is deceased and cannot be cross-examined regarding the memo, it is irrelevant, cummulative, and is inadmissible hearsay. He also argued that just because the defense stipulated to the authenticity of the memo does not mean it is admissible as to its testimony. Mrs. Kubota, representing defendant Jack Wolter, also objected to the memo because Borgstedt is not an alleged co-conspirator, but was only a consultant to Dr. Yang, and thus is not a representative of Grace and his testimony should not be admitted.
Cassidy responded that Federal Rule of Evidence 801(d)(2) allows admissions by party opponents, including agents of a corporation such as consultants. He also argued that the memo was written on Grace letterhead and Duecker testified that Borgstedt was an employee of Grace when he wrote the memo, so it was admissible. Finally, he believed that all of these issues should have been raised at the stipulation hearing, and the defense waived their opportunity to object by not raising their objections at the hearing.
Judge Molloy agreed that the stipulation hearing only covered the source and authenticity of the documents, and the testimonial issue was separate and not included in the defense attorneys’ stipulations. He did not allow admission of 180, but said it would be admitted if the government had an expert witness explain it to the jury.
Molloy also addressed Cassidy’s rather slow method of admitting documents through Duecker, who did not remember any of the documents and could not explain any of the documents to the jury. For over an hour, Cassidy attempted to admit several Grace memos regarding the hamster studies, studies performed by the McDonalds about health problems of workers at O.M. Scott, and attic simulation tests performed by Grace to determine the similarities of tremolite and chrysotile asbestos. The defense objected to these documents on foundation and relevance grounds, and all but one of their objections were sustained. The result of this unorthodox direct examination and the continued defense objections was confusion and frustration among those of us watching the trial (and probably the jury), as well as long pauses between questions while Cassidy was trying to locate documents and phrase his questions to get documents admitted.
Molloy addressed this inefficiency after he dismissed the jury, and said he hoped the government would not go over all of these same documents with Dr. Yang. He suggested that the parties disclose to each other what exhibits they will attempt to admit with each witness before calling that witness. Then the parties could determine if there were any objections prior to calling the witness, and foundation would not have to be laid for each document. Duecker’s direct examination continues tomorrow morning at 8:30.
Katy Furlong (posted at 7:40 p.m.)
Posted: March 17th, 2009 under Law.