Sidebar: Edward Blake testimony

📄 Sidebar: Edward Blake testimony — Thursday, November 14, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\14\SIDEBAR-EDWARD-BLAKE-TESTIMONY.DOC

TRIAL

▲ Day 15 of 57

◀ Direct examination of Gary Sims (morning, part 1) Direct examination of Gary Sims (morning, part 2) ▶

Date: Thursday, November 14, 1996 • Lines: 12

Blasier objected to questioning about whether the defense tested available evidence, arguing that a prior court had protected Dr. Blake from deposition as a consultant rather than a testifying expert and that the defense had no burden to conduct testing. Lambert countered that the evidence and experts were available and argued that, in a civil case, the jury could draw an inference from a failure to present available evidence. The supplied objection authority does not state the outcome of that objection episode.

# 1 THE COURT:

You may.

# 2 (The following proceedings were held at the bench, with the reporter.)

# 3 MR. BLASIER:

I object to this line of questioning.

The plaintiffs tried to take Dr. Blake's deposition, and the Court ruled that they could not do so because he was one of the consultants, not a witness. He is not an expert that we're calling to testify.

The allegation that we did testing or didn't test is improper. We have no burden to do any testimony, since there is no burden.

# 4 THE COURT:

Wait a minute. Go back about a paragraph.

# 5 MR. BLASIER:

Well, the plaintiffs attempted to take Dr. Blake's deposition in this case, and the Court -- not this Court, but the Court that was handling law and motion -- ruled that they could not do so because Dr. Blake was a consultant and was not a testifying expert for the defense.

And the implication that we did testing or didn't do testing is an improper one to raise. There's no burden on us to do any testing.

And I object to this line of inquiry based on that.

KEY QUOTE

# 6 MR. LAMBERT:

It has nothing to do with whether Dr. Blake is going to -- whether Dr. Blake is going to be a witness or not.

The point is, we're entitled to show to the jury that they had evidence available to test; they had experts available to do the testing. If they chose not to do the tests or if they did test, we don't know about it, and choose not to present the results, the jury is entitled to hear that evidence.

There's a specific evidence rule that says that the jury's entitled to make whatever inference they choose to draw from the defendant not presenting evidence that is available to them to present.

If they want to have -- this isn't a criminal case where there's some kind of a constitutional problem with presenting this evidence. In a civil case, it's clearly relevant and probative, and the jury should hear that they choose not to do testing.

That may be what inferences may be drawn from that.

# 7 MR. BLASIER:

I disagree with Mr. Lambert. Correct, we can do away with the ability to have a consultant. It is not available to the other side. I don't think that's appropriate. It's irrelevant; it's prejudicial. I object under 352.

# 8 MR. LAMBERT:

This isn't a consultant; this is somebody in the lab, watching everything being done, cutting slices, so it could be available for further tests if somebody wanted to do further testing. It's not a -- behind the scenes; it's something that's right there available to do it if they want to do it.

# 9 MR. BLASIER:

The Court already ruled he was a consultant.

# 10 MR. LAMBERT:

Only for purposes of me taking his deposition.

If you choose not to call him, that's fine.

# 11 THE COURT:

Irrelevant. Overruled.

KEY QUOTE

# 12 (The following proceedings were held in open court, in the presence of the jury.)

Temperature

tense

Key Quotes (4)

Tom Lambert

There's a specific evidence rule that says that the jury's entitled to make whatever inference they choose to draw from the defendant not presenting evidence that is available to them to present.

States Lambert's argument that jurors may draw an inference when a defendant does not present available evidence.

Tom Lambert

This isn't a criminal case where there's some kind of a constitutional problem with presenting this evidence. In a civil case, it's clearly relevant and probative.

Contrasts Lambert's view of relevance in this civil case with an unspecified constitutional problem he said could arise in a criminal case.

Robert Blasier

Well, the plaintiffs attempted to take Dr. Blake's deposition in this case, and the Court -- not this Court, but the Court that was handling law and motion -- ruled that they could not do so because Dr. Blake was a consultant and was not a testifying expert for the defense.

Establishes the procedural history: Blake's consultant status was already litigated, and Blasier argues that ruling should protect against any adverse inference from his non-use.

Hiroshi Fujisaki

Irrelevant. Overruled.

A terse court ruling whose relationship to the earlier objection is not established by the supplied objection authority.

Evidence (1)

Informal

Evidence Lambert described as available for testing, with Dr. Blake in the lab watching activity and cutting slices for possible further tests

discussed — plaintiffs argue it was available to be tested by the defense but was not presented

Notable Exchanges (2)

Robert Blasier•Tom Lambert

Blasier argued Blake's court-protected consultant status made any implication about defense testing improper; Lambert rebutted that the deposition ruling only governed discovery, not the jury's right to draw adverse inferences from the defense's failure to present available evidence.

strategic

Tom Lambert•Robert Blasier

Lambert clarified Blake was not a behind-the-scenes consultant but was physically present in the lab cutting slices — making the evidence concretely 'available' for further testing, not merely theoretically accessible.

strategic

Objections

2 objections (0 sustained, 1 overruled)

Proceeding 8262 • 12 lines

Civil Trial

Department 103