UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY,
a corporation, and

DOCKET NO. 9300

PITT-DES MOINES, INC.,
a corporation.

Nee

ORDER ON RESPONDENTS’ MOTION TO STRIKE TRIAL TESTIMONY

IL

On January 13, 2003, Respondents filed a Motion to Strike Trial Testimony Relating to
Exhibits CX 1577 and CX 1578. Complaint Counsel filed its opposition on January 15, 2003.
For the reasons set forth below, Respondents’ motion is GRANTED in part and DENIED in part.

16

Complaint Counsel asserts that Respondents’ expert, Dr. Barry Harris, testified on direct
examination that it is inappropriate to compare budget prices and firm prices. On cross
examination, Complaint Counsel sought to elicit testimony from Harris regarding CX 1577 and
CX 1578, two transcripts of the deposition taken of John Vaughn, an expert witness whom
Respondents chose not to call at trial. Complaint Counsel represented that it intended to use CX
1577 and CX 1578 to impeach Harris’ testimony.

At the time Complaint Counsel began its questioning of Harris about CX 1577 and CX
1578, the two exhibits were in evidence, but were subject to a pending motion to withdraw them.
Complaint Counsel was permitted to question Harris about the statements made by Vaughn in CX
1577 and CX 1578 for proper impeachment purposes only and was instructed that if CX 1577 and
CX 1578 were excluded from evidence, a motion to disregard portions of Harris’ testimony that
refer to those documents would be entertained. Tr. at 7602, 7612-13.



Subsequent to the testimony elicited from Harris about the statements made by Vaughn,
Respondents’ motion to withdraw CX 1577 and CX 1578 was granted. Tr. at 7666-74. The two
exhibits had previously been admitted pursuant to a joint stipulation. Respondents demonstrated
that inclusion of the two exhibits in the joint stipulation was inadvertent and demonstrated good
cause for withdrawing the two exhibits. Complaint Counsel’s independent bases for admission of
CX 1577 and CX 1578 were rejected. Thus, CX 1577 and CX 1578 are not in evidence.

It.

By this motion, Respondents seek to strike testimony elicited by Complaint Counsel from
Harris about the statements made by Vaughn in CX 1577 and CX 1578. Complaint Counsel
asserts that the out of court statements made by Vaughn are contradictory or inconsistent
statements that may be used to impeach the testimony of Harris. Complaint Counsel does not
assert, nor has it established, that the statements made by Vaughn were reviewed or relied upon
by Harris in forming Harris’ expert opinions in this case.

“The credibility of a witness may be attacked by any party, including the party calling the
witness.” Fed. R. Evid. 607. Complaint Counsel seeks to attack Respondents’ expert’s
credibility by confronting the witness with contradictory statements made not by this witness, but
by another expert witness who Respondents had retained but did not call to testify at trial. This is
not proper impeachment. In Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541 (5" Cir.
1978), the Court of Appeals held that cross-examining counsel’s use of the written conclusions
of a non-testifying expert “under the guise of impeachment” of a testifying expert was
impermissible. Jd. at 546-47. There, defendant’s expert witness had partially based his opinion
on statistical evidence established by two other non-testifying experts. The Court of Appeals held
that the conclusions reached by non-testifying experts did not impeach the testifying expert’s use
of the statistics. Jd. See also Box v. Swindle, 306 F.2d 882, 887 (5" Cir. 1962) (reports of non-
testifying expert examined by a testifying expert and conflicting with the testimony of the expert
could not be admitted even as impeachment evidence unless the testifying expert based his opinion
on the opinion of the examined report.) In the instant case, Complaint Counsel has not
established that Harris relied upon or even reviewed the conclusions reached by Vaughn.

Complaint Counsel, who proffered the statements made by Vaughn, has not demonstrated
that the statements are proper impeachment evidence, The cases cited by Complaint Counsel in
its motion in no way support its argument that the hearsay statements of a non-testifying witness
that are not in evidence may be used to impeach the credibility of an expert witness. The majority
of Complaint Counsel’s cases are criminal cases: U.S. v. Havens, 446 U.S. 620, 624-26 (1980)
(government permitted to use an item of clothing that had been seized through an invalid search
to impeach criminal defendant’s statement about such item of clothing); U.S. v. Abel, 469 U.S.
45, 55 (1984) (statement made at trial in criminal case by one witness that demonstrated bias of
another witness admissible for impeachment); U.S. v. Warren, 453 F.2d 738, 742 (2TM Cir. 1972)
(records showing how often criminal defendant gave drugs to patients admissible to impeach



defendant’s testimony that he had dispensed illegal drug to only a small percentage of his
patients); U.S. v. Jamieson, 806 F.2d 949, 952 (10" Cir. 1986) (where defendant testified he had
never prescribed drugs except for a legitimate medical purpose, defendant’s medical records
admissible to impeach); U.S. v. Dweck, 913 F.2d 365, 369 (7" Cir. 1990) (where wife of criminal
defendant testified she had met husband in 1979, government permitted to impeach wife by asking
if husband had been in prison in 1979 even though Fed. R. Evid. 609 prohibits impeachment of
defendants by convictions over 10 years old). The civil cases cited by Complaint Counsel are also
not on point: Lubbock Feedlots Inc., 630 F.2d 250, 261-62 (5" Cir. 1980) (where first witness on
the stand had made a prior inconsistent statement, second witness permitted to testify about first
witness’ previous out of court statement); DiStefano v. Otis, 1997 U.S. Dist. LEXIS 14039, *2
(ED. Fla. 1997) (plaintiffs’ expert witness’ own elevator maintenance records maintained when
he had been an elevator mechanic admissible to impeach him on the issue of the claimed
insufficiency of defendant’s maintenance records), Jones v. Southern Pac. RR, 962 F.2d 447, 449
(5" Cir. 1992) (records of safety infractions committed by train conductor admissible to impeach
testimony offered by that same train conductor). In the instant case, Complaint Counsel is clearly
not referring to any prior statement made by Harris or to any of Harris’ own records or
documents.

As previously ruled, the deposition statements of Vaughn are not in evidence. Use of
these statements with Harris is not proper impeachment. Thus, the portions of the trial transcript
containing or referring to the statements of Vaughn will be disregarded. However, Respondents
overreached in their motion to strike, seeking to strike more than just the testimony wherein
Harris was asked about the statements made by Vaughn. Accordingly, Respondents’ motion is
GRANTED in part and DENIED in part. The following portions of the trial transcript are not in
evidence and will be disregarded:

7604:24-7605:8; 7616:11-13; 7618:9-20; 7619:9-10; 7619: 18-7622:5; 7624:20-7625:11;
and 7629:18-7630:5.

ORDERED: itn Me wa ef
D

. Michael Chappell
Administrative Law Judge

Date: January 28, 2003