Commercial Litigation and Arbitration

Expert Report and Deposition Testimony as Party Admission

Reports of retained experts and their deposition testimony constitute party admissions under Rule 801(d)(2)(B), (C), and/or (D). See Kreppel v. Guttman Breast Diagnostic Inst., Inc., No. 95 Civ. 10830(SWK)(MHD), 1999 WL 1243891 (S.D.N.Y. Dec. 21, 1999) (Rule 801(d)(2)(B)); Dean, by Williams v. Watson, 1995 WL 692020, at **9-10 (N.D. Ill. Feb. 28, 1996) (Rule 801(d)(2)(C): granting plaintiff’s motion in limine for leave to read into evidence the defendants’ expert deposition testimony and reasoning that defendant’s expert deposition statements were admissions because “[d]efendant's expert . . . was authorized by Defendant to make statements regarding the issues in this cause of action” (citing Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980)) (reversing the district court and holding that plaintiffs could submit as evidence defendant’s expert deposition testimony because “[i]n giving his deposition [defendant’s expert] was performing the function that [defendant] had employed him to perform. His deposition, therefore, was an admission of [defendant]”), cited with approval in Nichols v. Am. Risk Mgmt., No. 89 Civ. 2999(JSM)(AJP), 2000 WL 97282 (S.D.N.Y. Jan. 28, 2000)); Budden v. U.S., 748 F.Supp. 1374 (D. Neb. 1990) (admitting the adversary’s expert deposition testimony); Farr Man Coffee Inc. v. Chester, No. 88 Civ. 1692(DNE), 1993 WL 248799, at *45 (S.D.N.Y. May 28, 1993) (report “admissible as an admission by a party-opponent pursuant to Federal Rule of Evidence 801(d)(2)(D)”).

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