United States District Court, D. Oregon, Portland Division
WANKE CASCADE DISTRIBUTION LTD., an Oregon corporation, Plaintiff,
FORBO FLOORING, INC., a Delaware corporation, Defendant.
ORDER ON OBJECTIONS TO IMPEACHMENT WITNESSES
V. Acosta United States Magistrate Judge
Jury Trial Management Order entered on August 1, 2016 (the
“Order”), the court directed the parties to file
on or before February 24, 2017, a witness list and a detailed
witness statement of each witness's expected testimony
and estimated length of such testimony on direct. With regard
to impeachment witnesses, the parties were required to
identify any witnesses they intended to call for impeachment
purposes and provide a similar detailed witness statement
directly to the court. The court subsequently extended the
February 24, 2017, deadline for filing witness lists and
statements to March 3, 2017. The Order also required the
parties to file objections to witnesses on or before March
identified Mark Andrew Drozda, Raymond John Eppley, Terry
Goodall, Brian Heagy, Shawn William Loomis, Brian Radditz,
and Dale Reimer as impeachment witnesses and provided the
court a detailed witness statement for each on March 3, 2017.
On March 24, 2017, Wanke filed detailed objections to
Forbo's witnesses totaling twenty-seven pages but failed
to object to the identification of the impeachment witnesses.
At the May 3, 2017 pretrial conference, Wanke raised
objections to the impeachment witnesses for the first time.
Wanke seeks to limit the testimony of these impeachment
witnesses to impeachment evidence only.
Use of Impeachment Witnesses.
identifying the listed witnesses as impeachment witnesses,
Forbo properly prepared witness statements for the
impeachment witnesses and provided them to the court. Despite
not having access to the impeachment witness statements,
Wanke now impliedly objects to the contents of such witness
statements, or at least to the impeachment witnesses
testifying to the matters contained therein. Specifically,
Wanke seeks to limit the impeachment witnesses to testifying
about matters relevant solely to the impeachment of
Wanke's witnesses. Wanke argues that to the extent the
impeachment testimony is material to the merits of the case,
it should be excluded.
federal courts are split on the admissibility of impeachment
evidence relevant both to the impeachment of a witness and
the merits of the case. One view is that impeachment evidence
should be limited to evidence which has value solely for the
purpose of impeaching a witness. See Robert
Kubicek Architects & Assocs., Inc. v. Bosley, No. CV
11-2112-PHX DGC, 2013 WL 998222, *2, (D. Az. March 13, 2013);
Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir.
1998); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1122
(7th Cir. 1999). Under this view, any evidence which has
relevancy to both impeachment and the merits of the case must
be properly disclosed to the opposing party or be excluded.
Judge Hubel of this district, however, adopted the alternate
view that evidence offered to impeach a party is admissible
even thought it is relevant to the substantive issues in the
case. See Halsbasch v. Med-Data, Inc., 192 F.R.D.
641, 650 (D. Or. 2000). Judge Hubel reasoned “[i]t is
the rare case where an attack on a witness's credibility
cannot be linked to some substantive element of a
claim.” Id. at 649-50.
court adopts Judge Hubel's view in this instance for
three reasons. First, Forbo seeks to offer testimony which
contradicts other testimony in the record. Impeachment by
contradiction, a form of impeachment Wanke acknowledges as
proper in itsbrief, necessarily requires the offering of
evidence relevant to the merits of the case. Second, despite
having all of the relevant information, Wanke failed to
object to Forbo's intended use of its impeachment
witnesses at the time its objections to witnesses were due.
Failing to object to the impeachment witnesses in a timely
manner could be viewed as a waiver of such objection.
Finally, the impeachment witnesses Forbo identified are all
existing or prior employees of Buckwold Western or Wanke and
were deposed. Accordingly, the testimony of the impeachment
witnesses should not come as a surprise to Wanke and is
unlikely to be unduly prejudicial to Wanke's case in
light of the impeachment witness's bias in favor of
evident from a review of the witness statements Forbo
submitted it intends to elicit testimony relevant to its
defense and the merits of the case, not merely impeachment
testimony. Forbo may call the witnesses only for the purposes
of impeachment and is limited to eliciting testimony from the
impeachment witnesses that, in fact, serves to impeach one or
more of Wanke's witnesses. That this testimony is also
relevant to the merits of the case will not result in the
exclusion of such impeachment testimony.
II. Scope of Cross-Examination of Impeachment
witnesses identified by Forbo as impeachment witnesses have
also been identified as witnesses by Wanke, either in its
case-in-chief or in rebuttal. In its cross-examination of
these witnesses, Forbo may question the witness only on
matters within the scope of the direct testimony and matters
relevant to impeachment. The opportunity to cross-examine a
witness does not open the door to allow questioning on
matters unrelated to the testimony elicited on direct
examination or for purposes other than impeachment.
SUSTAINED IN PART, ...