Wednesday, September 23, 2009
Kahrs II: Revenge of the Import Specialst
Returning now to the saga of Kahrs International, we have some more evidence questions to resolve. Before that, and with all due respect to the guy who complained about my Audi post, I say, "Hey Kahrs, nice floors you have there." I notice only because my kitchen floor is a wreck.
In this second published opinion, the government moved for summary judgment, in part, on the basis of two declarations from Customs personnel. Kahrs moved to strike portions of those statements. Motions like this are decided on the basis of the judge's sound exercise of discretion and can only be reversed if the judge abused that discretion. In other words, the judge has pretty wide latitude here.
The motion to strike comes down to an ages-old question in customs litigation: Are Customs Import Specialists "experts" for purposes of giving testimony in court. A run of the mill witness is generally only allowed to testify as to facts. "The light was green." "It was 8:00 PM." Expert witnesses, on the other hand, can review information and, drawing upon their technical knowledge, offer opinions based on the facts. "From those skid marks, in my opinion he was traveling 80 MPH." Because of this leeway, a party seeking to use an expert has to provide the other side with background information establishing the witness' credentials and also the facts upon which the opinions are based. The latter is usually done through an expert's report.
In Kahrs, the witnesses from Customs gave what the plaintiff considered to be opinion testimony but were not identified as experts and were not treated as such. Kahrs, therefore, moved to strike some of the statements. But, the government noted that Federal Rule of Evidence 701 permits non-expert opinion testimony in certain limited cases, including when based upon personal knowledge and experience, "often on the job."). This is the difference between personal knowledge and technical knowledge. So a machine shop operator can give an opinion as to how something might have been made based on her personal experience while a professor of engineering can give the same opinion based on years of academic work even if he never set foot on a shop floor.
Turning to the two witnesses, the Court found that each had significant personal experience dealing with wood products and the wood-products industry. They have also read the relevant materials from Customs and the trade. Thus, they had acquired knowledge through personal experience and were, therefore, permitted to offer lay opinions within the area of their personal knowledge.
This does not really resolve the question of whether an Import Specialist is an expert. It does, however, appear to create the path by which they will be permitted to give opinion testimony.
The Court then turned to numerous objections plaintiff raised with respect to the government's proposed findings of fact. These are numbered paragraphs of individual facts presented to the Court with a reference to backup evidence. Courts can construct their decisions based on uncontested or proven facts submitted in this way. Each of the plaintiff's objections was overruled or the Court stated it would not consider some objectionable information.
Coming soon Kahrs III: On the Merits