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United States ex rel. Westrick v. Second Chance Body Armor Inc.

United States District Court, District of Columbia

February 1, 2018

UNITED STATES OF AMERICA, ex rel., AARON J. WESTRICK, Ph.D., Plaintiffs,
v.
SECOND CHANCE BODY ARMOR, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the motion in limine [Dkt. No. 376] filed by the United States to exclude pro se defendants Thomas Edgar Bachner, Jr. and Richard C. Davis from testifying as their own expert witnesses at trial. In its motion, the United States argued that Mr. Bachner and Mr. Davis, as pro se parties, should not be permitted to also serve as their own expert witnesses under Rule 702 of the Federal Rules of Evidence. In addition, it maintained that Mr. Bachner's repudiation of his prior testimony made him an unreliable witness and that, regardless, neither of the pro se defendants had made the expert disclosures required by Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure. Mr. Bachner and Mr. Davis filed a joint response in opposition [Dkt. No. 406], to which the United States filed a reply brief [Dkt. No. 417]. The Court held a motions hearing at Mr. Bachner's request on January 25, 2018. At the hearing, the relator joined the government's motion in limine.

         At the motions hearing, Mr. Bachner offered his updated curriculum vitae, dated December 27, 2017, which the Court admitted as Exhibit 1 for purposes of the hearing. Mr.

         Bachner discussed his many qualifications, including his bachelor's degree in chemistry and his fifty-year career involving both the technical and business aspects of the technical textile industry. After graduating from college, Mr. Bachner spent a quarter of a century working for DuPont in various capacities - as a chemist and in technical services, marketing, business product strategies, and account management, including in supervisory and managerial roles. He then served for over a decade as a Vice President at Second Chance Body Armor, Inc. All together, Mr. Bachner has three decades of experience specifically related to ballistics manufacturing and body armor and holds numerous related patents, including eighteen United States patents. Mr. Bachner also represented that Mr. Davis, who joined the hearing by phone, had been a founder in the industry of modern body armor design and had received some of the original patents in the field.

         At the conclusion of Mr. Bachner's direct representations to the Court, counsel for the United States clarified that it did not seek to preclude fact or opinion testimony regarding what Mr. Bachner and Mr. Davis personally knew or had observed, including discussions of events in which they had personally participated and their own ballistic testing, test results, and certification data. Rather, the United States only objected to opinions for which the pro se defendants lacked personal knowledge, due to the prejudice and confusion such testimony would create. Counsel further explained that neither Mr. Bachner nor Mr. Davis had provided a copy of Mr. Davis's curriculum vitae or a summary of the facts and opinions to which either party expected to testify as an expert.[1]

         The United States then called Mr. Bachner as a witness, explaining that it intended to ascertain what opinions he sought to offer as an expert and identify how his expert testimony had changed over time. When asked what specific expert opinions he expected to offer at trial, Mr. Bachner maintained that he would not be able to provide any specific opinions in advance of trial and also represented that he lacked personal knowledge of certain matters. Specifically, Mr. Bachner represented the following:

(1) He had not reviewed the expert reports prepared by Alan L. Price, would not do so in advance of trial, and would not use them as a source of any opinion offered at trial;
(2) He would not offer any opinion about the Zylon vest prepared by Mr. Price for purposes of litigation and did not have a personal knowledge basis to do so;
(3) He would not offer any opinion about the PSP vest containing a desiccant at trial, including as discussed in the report prepared by Bradley S. Field for purposes of litigation, and did not have a personal knowledge basis to do so;
(4) He had no personal involvement in or personal knowledge of what went on in the TSWG project testing, other than his reading of published reports and discussions with Kirk D. Rice and Michael A. Riley;
(5) He had no personal knowledge of the testing that was done by Natick on Kevlar, Zylon, or any other ballistic material, other than his reading of certain research reports;
(6) He had no personal knowledge of the testing behind the published NIST reports, other than his conversations with Mr. Rice and Dr. Riley; and
(7) He had no personal knowledge that the United States was testing used vests, other than his conversations with Lance Miller and “probably” Mr. Rice, which he was not able to clearly recall.

         After Mr. Bachner continued to assert that he could not provide a specific opinion in advance of trial, the Court interjected to explain that the Federal Rules of Civil Procedure required that expert witnesses make certain disclosures in advance of trial and, under these Rules, the United States had a right to this information, as would any other opposing party. The Court briefly explained the reasons for this requirement, including the Court's role as gatekeeper in determining what a jury will be permitted to hear from an expert witness at trial. It appeared, the Court noted, that Mr. Bachner and Mr. Davis might be using the term “expert” colloquially, and did not understand the implications of the legal term of art under the Federal Rules and as established by the United States Supreme Court. The Court then clarified that, even if they were not designated as experts, Mr. Bachner and Mr. Davis would still be permitted to testify as to their backgrounds and career histories, their various roles and how their positions evolved and their knowledge developed over time, and any facts or opinions based on their personal knowledge and experiences. The Court explained: “[T]he question is whether I'm going to let the jury be told you're an expert or whether I'm instead going to let the jury be told you're a very experienced man who spent fifty years in this company and knows a lot, but we're not going to give you that extra imprimatur of being called an expert.” At that point in the hearing, counsel for the United States proposed that, with time for the pro se defendants to consult with one another, perhaps all parties might agree that Mr. Bachner and Mr. Davis be permitted to testify about their backgrounds and the things of which they have personal knowledge, but not permitted to offer opinions as traditional expert witnesses on matters about which they had no basis in personal knowledge. The Court reiterated that, regardless of their expert designations, Mr. Bachner and Mr. Davis would be permitted to testify as fact witnesses - discussing facts and opinions for ...


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