Experts — Improper to Cross Examine Expert with Report or Deposition Testimony of Non-Testifying Expert

In In re Hanford Nuclear Reservation Lit., 2008 U.S. App. LEXIS 16479 (9th Cir. July 29, 2008), the defendants succeeded in barring expert 1 (Dr. Ruttenber) from testifying. Plaintiffs instead called expert 2 (Dr. Davies), who never read the report or deposition of expert 1, but did rely on expert 1’s dosage estimates. At trial, defense counsel on cross-examination used expert 1’s deposition to impeach expert 2’s testimony. Held, error:

Dr. Ruttenber's statements should not have been used to impeach Dr. Davies because they were inadmissible hearsay on which Dr. Davies did not rely. We agree with the Fifth Circuit that reports of other experts cannot be admitted even as impeachment evidence unless the testifying expert based his opinion on the hearsay in the examined report or testified directly from the report. Bryan v. John Bean, 566 F.2d 541, 546-47 (5th Cir. 1978) (citing Box v. Swindle, 306 F.2d 882 (5th Cir. 1962)); see also United States v. Layton, 549 F. Supp. 903, 920-21 (N.D. Cal. 1982). Because Dr. Davies did not rely on Dr. Ruttenber's deposition, and because the trial court had excluded the deposition testimony as inadmissible hearsay, Defendants should not have been allowed to use the testimony to impeach Dr. Davies' credibility.

Error not harmless; new trial ordered.

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