The Primerus Paradigm - Spring 2017 Page 27

S P R I N G 2 0 1 7 | C e l e b r a t i n g 2 5 y e a r s w i t h t h e w o r l d ' s f i n e s t l a w f i r m s

do have a strong weapon on your side:
A minority of courts have held that an
expert is not an agent of the party and,
therefore, the expert is not authorized
to make admissions.

If there is no

authorization to make an admission,
the hearsay exception discussed above
cannot come into play.

1 H.S. Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir.

1980).

2 See Long v. Fairbank Farms, Inc., 2011 U.S. Dist.

LEXIS 73887, 2011 WL 2516378 (D. Me. May 31,
2011); Kreppel v. Guttman Breast Diagnostic Inst., 1999
U.S. Dist. LEXIS 19602, 1999 WL 1243891 (S.D.N.Y.
Dec. 21, 1999); see also North Star Mut. Ins. Co. v.
CNH Am. LLC, 2014 U.S. Dist. LEXIS 28560, *9-10
(D.S.D. Mar. 6, 2014); Dean v. Watson, 1996 U.S. Dist.
LEXIS 2243, *9, 1996 WL 88861 (N.D. Ill. Feb. 16,

1996); Kreppel v. Guttman Breast Diagnostic Inst., Inc.,
1999 U.S. Dist. LEXIS 19602, 1999 WL 1243891
(S.D.N.Y. Dec. 17, 1999).

3 Federal Rule 801(d)(2)(C) provides in pertinent part as

follows:

Rule 801. Definitions that Apply to This Article;

Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement

that meets the following conditions is not
hearsay:

(2) An Opposing Party's Statement. The

statement is offered against an opposing party
and:

authorized to make a statement on the
subject;

USCS Fed Rules Evid R 801.

4 Dean, 1996 U.S. Dist. LEXIS at*9, 1996 WL 88861.
5 621 F.2d 777, 782 (5th Cir. 1980).
6 Id.
7 Long, 2011 U.S. Dist. LEXIS at *36-37; Collins, 621

F.2d at 780-82 superseded by rule on other grounds
as noted in Mathis v. Exxon Corp., 302 F.3d 448 (5th

Cir. 2002) (district court erred in ruling defendant's
expert's deposition testimony inadmissible pursuant to
Federal Rule of Evidence 801(d)(2)(C) when, in giving
his deposition, the expert performed the function the
defendant had employed him to perform);

Bianco v. Hultsteg AB, No. 05 C 0538, 2009 U.S. Dist.

LEXIS 9284, 2009 WL 347002, at *12 (N.D. Ill. Feb.
5, 2009) ("We agree that [the plaintiff's expert's] sworn
testimony constitutes admissions by a party opponent
within the meaning of Federal Rule of Evidence
801(d)(2), which [one of the defendants] may offer into
evidence against plaintiff without running afoul of the
Rule prohibiting admission of hearsay evidence.");

Dean, 1996 U.S. Dist. LEXIS 2243, 1996 WL 88861,

at *3-*4 (defendant's expert's testimony was admissible
pursuant to Rule 801(d)(2)(C) when he was authorized
by the defendant to make statements regarding the
issues in the cause of action).

8 Kirk v. Raymark Indus., Inc., 61 F.3d 147, 1995 U.S.

App. LEXIS 19940, 42 Fed. R. Evid. Serv. (Callaghan)
883, 155 A.L.R. Fed. 701 (3d Cir. Pa. 1995).