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


Comments

Anonymous said…
Seems lame, but I'm actually on the edge of my seat, looking forward to your analysis of III. Mostly so I don't have to wade through it myself...
Sep 24, 2009, 7:24:00 AM
Matt said…
I'm also looking forward to not reading the opinions. Can we expect some good titles, like "Wrath of Kahrs," "Judge Tskes Kahrs out for a Spin", "Getting Better Mileage out of Kahrs"?
Sep 26, 2009, 10:51:00 AM
Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance topic. So, let's
Read more

Precious Tritium

Image
One thing I have learned as a customs lawyer who does a lot of classification work is that there are millions of odd items moving in international trade the existence of which I am completely ignorant. Such is the case of the gaseous tritium light sources used in, among other things, firearm sights. These things use tritium sealed in a glass that has been coated in phosphor. The radioactive tritium decays, releasing beta particles, which interact with the phosphor causing it to emit light. In other words, it creates light with no external power source. Pretty cool.  Tritium is, of course, a real thing. It is an isotope of hydrogen. We know this from the excellent documentary "Spider-Man." This comes up in relation to the Court of International Trade decision in Trijicon, Inc. v. United States  in which the importer challenged the tariff classification of several versions of the gaseous tritium light sources ("GTLS"). The plaintiff uses them to make gun sights. The
Read more