Barry v. United States of America
Filing
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ORDER Signed by Magistrate Judge Donna M. Ryu on 8/21/2012. (dmrlc2, COURT STAFF) (Filed on 8/21/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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STEPHEN BARRY,
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Plaintiff(s),
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v.
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ORDER RE OBJECTIONS TO
DEFENDANT'S TRIAL EXHIBITS AND
DEPOSITION EXCERPTS
UNITED STATES OF AMERICA,
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No. C 11-847 DMR
Defendant(s).
___________________________________/
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A.
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Plaintiff’s Objections to Defendant’s Exhibits
1.
Exhibit A (Vessel Report of Injury, 12/3/09) and Exhibit C (Incident Form, 12/23/09):
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Exhibits A and C are not admitted into evidence. Both exhibits constitute hearsay. Defendant did
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not establish that these exhibits are admissible as business records pursuant to Fed. R. Evid. 803(6).
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2.
Exhibit G (Statement of Gordon) and Exhibit H (Statement of Stillman): Exhibits G
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and H are not admitted into evidence. Defendant conceded that these written witness statements
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constitute hearsay. (Def.’s Evidentiary Br. 2-3 [Docket No. 35].)
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B.
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Plaintiff’s Objections to Defendant’s Deposition Excerpts
1.
Deposition of Claude Gordon
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19:25-26 and 36:1-10: Objection sustained. Gordon’s testimony regarding “breaking strain” and
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“maximum breaking strength” amounts to improper expert testimony.
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20:24 – 21:2; 21:9-15; 23:13-20; 34:20-25; and 48:14-24: Gordon’s perceptions regarding the
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tightness of the mooring line is admitted as lay opinion. It is rationally based upon the witness’s
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perceptions, is helpful to a clear understanding of his testimony as well as the determination of fact
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in issue, and is not based on scientific, technical, or otherwise specialized knowledge.
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2.
Deposition of John Mulderig
17:15-22 and 37:3-9: Objection sustained. Mulderig’s testimony regarding whether Barry was
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“standing in the bight of the line” lacks foundation.
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31:16-21; 36:5-37:2; 40:24-42:3; 42:10-42:25; and 60:2-20: Objection sustained. Mulderig’s
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testimony regarding what others told him about the mooring line's being “too tight” is hearsay.
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Mulderig’s opinions regarding the cause of the incident amounts to improper expert testimony.
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3.
Deposition of Daniel Page
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73:1-7: Objection sustained. Page’s testimony about what Stillman said, and what Stillman meant
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when he said it, is hearsay and also amounts to speculation.
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74:13-23 and 120:18-122:5: Objection sustained. Page’s testimony regarding what others told him
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about the mooring line being “too tight” is hearsay. Page’s opinion regarding the cause of the
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incident amounts to improper expert testimony.
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123:12-124:6 and 125:17-127:7: Objection sustained. Page’s testimony regarding the cause of the
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incident amounts to improper expert testimony.
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4.
Deposition of Jerry Stillman
38:16-39:14: Objection sustained. Stillman’s testimony regarding whether Barry was “standing in
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the bight of the line” lacks foundation.
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40:1-10: Objection sustained. Stillman’s testimony about the “protesting” of others is speculative
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and constitutes hearsay.
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IT IS SO ORDERED.
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Dated: August 21, 2012
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M. Ryu
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Judge D
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DONNA M. RYU
United States Magistrate Judge
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For the Northern District of California
United States District Court
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