Filed: Jan. 26, 2015
Latest Update: Jan. 26, 2015
Summary: ORDER RE DEPOSITION TESTIMONY OF MICHELLE BULLS AND MICHELLE BULLS' DECLARATION Re: Dkt. Nos. 147, 181 JON S. TIGAR, District Judge. Now before the Court are the parties' respective designations of the deposition testimony of Michelle Bulls. Portions of Bulls' deposition testimony is admissible because she resides more than 100 miles from the courthouse. Fed. R. Civ. P. 32(a)(4)(B). Plaintiff Gary Siebert originally designated a substantial portion of Bulls' deposition testimony for trial. E
Summary: ORDER RE DEPOSITION TESTIMONY OF MICHELLE BULLS AND MICHELLE BULLS' DECLARATION Re: Dkt. Nos. 147, 181 JON S. TIGAR, District Judge. Now before the Court are the parties' respective designations of the deposition testimony of Michelle Bulls. Portions of Bulls' deposition testimony is admissible because she resides more than 100 miles from the courthouse. Fed. R. Civ. P. 32(a)(4)(B). Plaintiff Gary Siebert originally designated a substantial portion of Bulls' deposition testimony for trial. EC..
More
ORDER RE DEPOSITION TESTIMONY OF MICHELLE BULLS AND MICHELLE BULLS' DECLARATION
Re: Dkt. Nos. 147, 181
JON S. TIGAR, District Judge.
Now before the Court are the parties' respective designations of the deposition testimony of Michelle Bulls. Portions of Bulls' deposition testimony is admissible because she resides more than 100 miles from the courthouse. Fed. R. Civ. P. 32(a)(4)(B).
Plaintiff Gary Siebert originally designated a substantial portion of Bulls' deposition testimony for trial. ECF No. 134 at 2-6. On January 5, 2015, Siebert withdrew his prior designations of Bulls' testimony and replaced them with a more modest set, ECF No. 147, and it is that set this order addresses.
On January 18, 2015, Defendant Gene Security Network, Inc. ("GSN") filed objections to Siebert's designations, counter-designations of its own, and a chart summarizing the parties' respective designations. GSN's objections address, and its chart includes, portions of Bulls' testimony that Siebert is no longer offering. ECF No. 181.
The Court ordered Siebert to file objections to GSN's designations by January 22, 2015 at 4:30 p.m. ECF No. 195 (Rep. Tr., Jan. 21, 2015) at 349. Siebert did not file any objections.
Addressing only those portions of Bulls' depositions that the parties have actually designated most recently, and the objections thereto, the Court now rules as follows:
Designating
Page Objection Ruling
Party
17:9-20 GSN None Admitted.
19:8-12 GSN None Admitted.
20:12-22:2 GSN None Admitted, except that
on its own motion, the
Court will order that
the colloquy at 20:19-21:6
not be played for
the jury.
23:20-23 GSN None Admitted.
34:8-39:7 GSN None Admitted.
50:20-51:21 GSN None Admitted.
57:15-65:2 GSN None Admitted, except that
on its own motion, the
Court will order that
the colloquy at 64:14-22
and 64:24-65:2 not
be played for the jury.
65:9-67:24 GSN None Admitted.
68:13-23 GSN None Admitted.
69:15-70:17 GSN None Admitted, although the
excerpt should start at
69:14.
74:21-77:7 GSN None Admitted, although the
excerpt should start at
74:18 and the colloquy
at 76:5-9 must be
excluded.
78:18-85:4 Siebert Testimony is incomplete and Overruled, although the
misleading because it fails to excerpt should start at
include relevant testimony on the 78:14. The Court will
same issue (85:7-86:5). also adopt GSN's
counter-designation.
85:7-86:5 GSN None Admitted.
87:9-19 Siebert Testimony is incomplete and Overruled, although the
misleading because it fails to Court will adopt
include other relevant testimony on GSN's counter-the
same issue (87:20-24). designation.
87:20-24 GSN None Admitted.
89:8-94:14 Siebert None Admitted.
95:2-98:12 Siebert Testimony is based on and refers to Overruled.
an inadmissible portion of the Bulls
Declaration (¶ 4); testimony
includes improper expert opinion
and states legal conclusions about
"material condition[s]" for NIH
grants.
102:7-103:4 Siebert Testimony is incomplete and Overruled; also moot
misleading because it fails to in light of the Court's
include other relevant testimony on admission of GSN's
the same issue (103:5-104:21). next deposition
designation.
102:11-104:21 GSN None Admitted.
105:10-106:3 GSN None Admitted.
106:8-16 GSN None Admitted, although the
excerpt should start at
106:4.
108:4-109:16 GSN None Admitted.
126:24-127:25 GSN None Admitted, although the
excerpt ends at 127:21.
131:20-132:1 Siebert Testimony constitutes improper Sustained.
leading questions that lack
foundation; testimony is speculative
and irrelevant because Bulls
previously testified that she has no
personal knowledge about
how reviewers at NIH may have
applied standard policies and
procedures to the applications by
GSN (e.g., 59:3-8).
132:20-133:19 Siebert Testimony constitutes improper Overruled.
leading questions that lack
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances;
testimony is irrelevant because
Siebert has stated that his FCA
claims are not based on allegations
that an "unauthorized
person" at GSN completed the
questionnaire.1
133:20-134:12 Siebert Testimony constitutes improper Overruled. Also, the
leading questions that lack excerpt ends at 134:15.
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances;
testimony is irrelevant because
Siebert has stated that his FCA
claims are not based on allegations
that an "unauthorized
person" at GSN completed the
questionnaire.
134:16-135:11 Siebert Testimony constitutes improper Overruled.
leading questions that lack
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances;
testimony is irrelevant because
Siebert has stated that his FCA
claims are not based on allegations
that an "unauthorized
person" at GSN completed the
questionnaire.
136:6-23 Siebert Court has ruled that testimony is Sustained.
inadmissible. See Order (Jan. 16,
2015) (Dkt. No. 180) at 4.
136:24-137:13 Siebert Testimony constitutes improper Overruled, although the
hypothetical questions that lack colloquy at 137:9-11
foundation; testimony constitutes must be excluded. The
improper expert testimony about colloquy to which GSN
what NIH would have done in objects at 137:14-15 is
hypothetical circumstances; and not part of the
excerpt concludes with improper designated testimony.
and gratuitous comment by
counsel, which is not part of the
testimony from the witness ("I'm
confident I have represented the
facts correctly") (137:14-15).
137:20-139:4 Siebert Testimony begins with an Sustained. The
incomplete question and answer; question is
testimony constitutes improper incomprehensible.
leading questions and hypothetical
questions that lack foundation;
testimony constitutes improper
expert testimony about what NIH
would have done in hypothetical
circumstances.
The Court previously ordered that Michelle Bulls' declaration was admissible "for the non-hearsay purpose of explaining Bulls' deposition testimony." ECF No. 180 at 4. Having now reviewed the portions of Bulls' deposition that the parties designated, the Court concludes that only those portions of Bulls' declaration to which the designated deposition testimony refers are admissible. When the parties submit a redacted copy of Bulls' declaration, id., they should redact it accordingly.
IT IS SO ORDERED.
