Emhart Industries, Inc. v. New England Container Company, Inc et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 06-218 S
)
NEW ENGLAND CONTAINER COMPANY, 	)
INC; et al., 	)
)
Defendants and Counterclaim )
Plaintiffs. 	)
___________________________________)
)
EMHART INDUSTRIES, INC., 	)
)
Plaintiff and Counterclaim 	)
Defendant, 	)
)
v. 	) 	C.A. No. 11-023 S
)
UNITED STATES DEPARTMENT OF THE 	)
AIR FORCE; et al., 	)
)
Defendants, Counterclaim 	)
Plaintiffs, and Third-Party )
Plaintiffs, 	)
)
v. 	)
)
BLACK & DECKER, INC.; et al., 	)
)
Third-Party Defendants. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Defendants, 	New 	England 	Container 	Co. 	and 	the 	United 	States
Department 	of 	the 	Air 	Force 	(collectively, 	“Defendants”), 	have
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filed 	motions 	in 	limine, 	seeking 	exclusion 	of 	a 	statement
executed 	by 	Thomas 	Cleary 	(“Cleary 	Statement”) 	on 	the 	ground
that 	it 	is 	inadmissible 	hearsay. 	(ECF 	Nos. 	452, 	459.)1 In
opposition, 	Plaintiff, 	Emhart 	Industries, 	Inc., 	and 	Third-Party
Defendant 	and 	Counterclaim 	Plaintiff, 	Black 	& 	Decker, 	Inc.
(collectively, 	“Emhart”), 	assert 	that 	the 	Cleary 	Statement
qualifies 	for 	admission 	under 	the 	residual 	exception 	to 	the
hearsay 	rule, 	see 	Fed. 	R. 	Evid. 	807. 	For 	the 	reasons 	that
follow, Defendants’ Motions are GRANTED.
I. 	Background
The 	parties 	are 	familiar 	with 	the 	background 	of 	this 	case;
consequently, 	only 	a 	brief 	sketch 	of 	the 	factual 	landscape 	is
necessary 	to 	set 	the 	stage. 	Metro-Atlantic, 	Inc. 	(“Metro-
Atlantic”) 	operated 	a 	chemical 	manufacturing 	facility 	on 	a
portion 	of 	the 	Centredale 	Manor 	Restoration 	Project 	Superfund
Site 	(“Site”) 	from 	1940 	to 	1968. 	For 	a 	brief 	period 	in 	the 	mid-
1960s, 	Metro-Atlantic 	manufactured 	hexachlorophene 	at 	the 	Site
in 	accordance 	with 	a 	process 	invented 	and 	patented 	by 	Cleary.
Cleary worked with Metro-Atlantic to get things up and running.
Several 	decades 	later, 	it 	was 	discovered 	that 	the 	Site 	was
polluted 	with 	dioxin. 	Suspecting 	that 	Metro-Atlantic’s
manufacture 	of 	hexachlorophene 	was 	a 	culprit, 	the 	Environmental
1 ECF 	numbers 	provided 	herein 	correspond 	with 	C.A. 	No. 	06-
218.
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Protection 	Agency 	designated 	Emhart, 	Metro-Atlantic’s 	corporate
successor, 	a 	potentially 	responsible 	party 	for 	the 	cleanup 	costs
associated 	with 	the 	Site. 	Soon 	after, 	Emhart 	sued 	its 	insurers
to 	cover 	its 	cleanup 	and 	defense 	costs 	in 	Emhart 	Indus., 	Inc. 	v.
Home 	Ins. 	Co., 	C.A. 	No. 	02-53 	(“Home 	Insurance”). 	Emhart
deposed Cleary in the Home Insurance case.
Emhart 	initiated 	the 	instant 	case 	on 	May 	11, 	2006. 	In 	late
February 	2008, 	when 	Cleary 	was 	over 	90 	years 	old,2 Emhart’s
attorneys 	and 	an 	organic 	chemist 	employed 	by 	Emhart’s 	counsel
telephoned 	Cleary, 	seeking 	clarification 	on 	certain 	aspects 	of
Cleary’s 	Home 	Insurance 	deposition 	(“Cleary 	Deposition”) 	and 	his
patented 	hexachlorophene-manufacturing 	process. 	This 	initial
telephone 	conversation 	was 	followed 	by 	multiple 	additional
telephone 	conferences 	in 	the 	ensuing 	weeks. 	These 	conversations
culminated 	in 	the 	Cleary 	Statement, 	which 	was 	prepared 	by
Emhart’s attorneys and signed by Cleary on April 8, 2008.
On 	August 	29, 	2008, 	Emhart 	subpoenaed 	Cleary 	to 	compel 	his
deposition, 	which 	had 	been 	noticed 	for 	September 	8, 	2008.
Emhart 	later 	learned 	that 	Cleary 	had 	died 	sometime 	in 	July 	2008.
He was never deposed in this case.
In 	November 	2011, 	Emhart 	produced 	the 	Cleary 	Statement 	to
Defendants. 	Defendants 	now 	seek 	exclusion 	of 	the 	statement,
2 Although 	the 	record 	is 	not 	clear 	on 	Cleary’s 	precise 	age,
Emhart 	represented 	at 	oral 	argument 	that 	Cleary 	was 	94 	years 	old
at the time that the Cleary Statement was executed.
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both 	at 	trial 	and 	in 	connection 	with 	any 	upcoming 	summary
judgment motions.
II. 	Discussion
The 	Cleary 	Statement, 	an 	out-of-court 	statement 	that 	will
be 	offered 	for 	the 	truth 	of 	the 	matters 	asserted 	therein, 	is
hearsay. 	See 	Fed. 	R. 	Evid. 	801(c). 	Emhart 	concedes 	as 	much,
but 	insists 	that 	it 	qualifies 	for 	admission 	under 	Rule 	807 	of
the Federal Rules of Evidence.
Rule 	807(a) 	provides 	that 	a 	hearsay 	statement 	not
specifically 	covered 	by 	the 	hearsay 	exceptions 	in 	Rules 	803 	and
804 	is 	not 	barred 	by 	the 	hearsay 	rule 	where 	the 	following 	four
requirements are met:
(1) 	the 	statement 	has 	equivalent 	circumstantial
guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) 	it 	is 	more 	probative 	on 	the 	point 	for 	which 	it 	is
offered 	than 	any 	other 	evidence 	that 	the 	proponent 	can
obtain through reasonable efforts; and
(4) 	admitting 	it 	will 	best 	serve 	the 	purposes 	of 	these
rules and the interests of justice.
Fed. 	R. 	Evid. 	807(a). 	This 	rule 	“is 	‘to 	be 	used 	rarely, 	and 	in
exceptional 	circumstances 	and 	applies 	only 	when 	certain
exceptional 	guarantees 	of 	trustworthiness 	exist 	and 	when 	high
degrees 	of 	probativeness 	and 	necessity 	are 	present.’” 	United
States 	v. 	Awer, 	502 	F. 	Supp. 	2d 	273, 	276 	(D.R.I. 	2007) 	(quoting
United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004)).
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Assessment 	of 	whether 	Rule 	807’s 	requirements 	are 	met 	in 	a
given 	case 	“is 	a 	fact-specific 	inquiry,” 	United 	States 	v.
Trenkler, 	61 	F.3d 	45, 	57 	(1st 	Cir. 	1995), 	in 	which 	the 	totality
of 	the 	circumstances 	must 	be 	examined; 	“[n]o 	single 	factor 	is
dispositive,” 	Brookover 	v. 	Mary 	Hitchcock 	Mem’l 	Hosp., 	893 	F.2d
411, 	420 	(1st 	Cir. 	1990). 	Because 	this 	analysis 	“depends 	on
judgment 	calls,” 	United 	States 	v. 	Pagán-Santini, 	451 	F.3d 	258,
264 	(1st 	Cir. 	2006), 	a 	district 	court 	is 	granted 	considerable
discretion 	in 	conducting 	it, 	see 	Trenkler, 	61 	F.3d 	at 	57. 	In
this 	case, 	the 	Cleary 	Statement 	cannot 	surmount 	at 	least 	two 	of
Rule 	807’s 	high 	hurdles: 	circumstantial 	guarantees 	of
trustworthiness 	and 	probative 	value 	in 	relation 	to 	other
evidence.
A. 	Circumstantial Guarantees of Trustworthiness
The 	requirement 	that 	the 	statement 	have 	equivalent
circumstantial 	guarantees 	of 	trustworthiness 	is 	“the 	most
important 	issue” 	in 	the 	Rule 	807 	analysis. 	Trenkler, 	61 	F.3d 	at
58. 	The 	requisite 	guarantees 	of 	trustworthiness 	must 	be
“equivalent 	to 	those 	possessed 	by 	the 	other 	listed 	exceptions 	to
the 	hearsay 	rule.” 	Id.; 	see 	also 	United 	States 	v. 	Burdulis, 	753
F.3d 	255, 	263 	(1st 	Cir. 	2014). 	This 	Court 	“must 	determine
whether 	the 	totality 	of 	the 	circumstances 	surrounding 	the
statement 	establish 	its 	reliability 	sufficiently 	enough 	to
justify 	foregoing 	the 	rigors 	of 	in-court 	testimony 	(e.g., 	live
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testimony 	under 	oath, 	cross-examination) 	that 	ordinarily
guarantee trustworthiness.” 	Trenkler, 61 F.3d at 58.
The 	Cleary 	Statement 	lacks 	the 	necessary 	circumstantial
guarantees 	of 	trustworthiness 	for 	two 	main 	reasons. 	First, 	the
circumstances 	surrounding 	the 	compilation 	and 	execution 	of 	the
Cleary 	Statement 	undermine, 	rather 	than 	enhance, 	its
reliability. 	Second, 	the 	Cleary 	Statement 	is 	inconsistent 	with
the 	Cleary 	Deposition 	in 	important 	respects. 	Each 	reason 	is
briefly discussed in turn.
1. 	Surrounding Circumstances
Several 	circumstances 	surrounding 	the 	formulation 	of 	the
Cleary 	Statement 	are 	problematic. 	For 	starters, 	the 	Cleary
Statement 	was 	prepared 	while 	litigation 	was 	in 	full 	swing 	and
while 	Emhart 	was 	formulating 	its 	expert 	strategy. 	See 	Colasanto
v. 	Life 	Ins. 	Co. 	of 	N. 	Am., 	100 	F.3d 	203, 	212 	(1st 	Cir. 	1996)
(affirming 	“the 	district 	court’s 	conclusion 	that 	the 	statements
were 	suspect 	because 	litigation 	was 	in 	the 	wind 	when 	they 	were
made”). 	Additionally, 	the 	involvement 	of 	Emhart’s 	attorneys 	—
to 	the 	exclusion 	of 	Defendants 	— 	in 	the 	preparation 	of 	the
Cleary 	Statement 	undercuts 	its 	value; 	unsurprisingly, 	the
culmination 	of 	the 	back-and-forth 	dialogue 	between 	Cleary 	and
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Emhart’s 	attorneys 	is 	highly 	favorable 	to 	Emhart.3 See 	Polansky
v. 	CNA 	Ins. 	Co., 	852 	F.2d 	626, 	631 	(1st 	Cir. 	1988) 	(finding
abuse 	of 	discretion 	in 	admitting 	a 	letter 	under 	Rule 	807
because, 	inter 	alia, 	it 	“was 	merely 	a 	self-serving 	statement
written 	by 	a 	representative 	of 	the 	party 	who 	seeks 	its 	admission
to prove the truth of what the letter implicitly asserts”).
Most 	importantly, 	Emhart 	elected 	to 	perpetuate 	Cleary’s
testimony 	in 	a 	manner 	that 	deprived 	Defendants 	of 	an 	opportunity
for 	cross-examination. 	To 	be 	sure, 	the 	absence 	of 	cross-
examination 	is 	not 	determinative 	in 	the 	Rule 	807 	analysis. 	See
United 	States 	v. 	Zannino, 	895 	F.2d 	1, 	6 	(1st 	Cir. 	1990). 	But,
in 	this 	case, 	Emhart’s 	failure 	to 	depose 	Cleary 	looms 	large.
When 	this 	case 	commenced 	in 	2006, 	Cleary 	was 	over 	90 	years 	old.
Emhart 	knew 	from 	the 	Home 	Insurance 	case 	that 	he 	was 	an
important 	witness, 	yet 	it 	waited 	nearly 	two 	years 	before
reaching 	out 	to 	Cleary. 	Moreover, 	when 	it 	finally 	did 	contact
Cleary 	in 	late 	February 	2008, 	Emhart 	did 	not 	promptly 	notice 	his
deposition, 	but 	instead 	spent 	over 	a 	month 	compiling 	the 	Cleary
Statement. 	Even 	after 	the 	Cleary 	Statement 	was 	executed, 	Emhart
waited 	almost 	five 	more 	months 	before 	seeking 	to 	depose 	Cleary.
By that point, it was too late.
3 This Court does not in any way suggest that Emhart engaged
in 	any 	unethical 	or 	inappropriate 	conduct 	in 	connection 	with 	the
Cleary Statement.
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Although 	Cleary’s 	death 	was 	untimely, 	it 	was 	hardly
unforeseeable, 	and 	Emhart’s 	choice 	to 	create 	the 	Cleary
Statement 	— 	a 	process 	that 	excluded 	Defendants 	— 	in 	lieu 	of
deposing 	Cleary 	— 	which 	would 	have 	afforded 	Defendants 	an
opportunity 	for 	cross-examination 	— 	undermines 	the
trustworthiness 	of 	the 	Cleary 	Statement. 	See 	Stokes 	v. 	City 	of
Omaha, 	23 	F.3d 	1362, 	1366 	(8th 	Cir. 	1994) 	(finding 	abuse 	of
discretion 	in 	the 	admission 	of 	an 	affidavit 	of 	a 	deceased
affiant 	and 	remarking 	that 	the 	affiant’s 	“death, 	although
untimely, 	was 	not 	unexpected[;] 	[i]f 	[the 	proponent 	of 	the
statement] 	had 	believed 	that 	[the 	affiant’s] 	testimony 	was
important 	to 	his 	case, 	then 	he 	should 	have 	deposed 	[the
affiant]”). 	The 	absence 	of 	cross-examination 	is 	especially
critical 	in 	this 	case 	because 	of 	the 	inconsistencies 	between 	the
Cleary 	Statement 	and 	the 	Cleary 	Deposition, 	discussed 	infra,
which Defendants had no opportunity to examine or clarify.
In 	light 	of 	these 	trustworthiness 	pitfalls, 	Emhart’s
assertions 	of 	reliability 	are 	unpersuasive. 	Emhart 	places 	great
reliance 	on 	the 	degree 	to 	which 	the 	Cleary 	Statement 	was
corroborated 	by 	the 	sworn 	statements 	of 	Emhart’s 	attorneys 	who
transcribed 	the 	telephone 	conferences 	with 	Cleary, 	the 	typed
notes 	of 	the 	calls, 	and 	a 	prior 	draft 	of 	the 	Cleary 	Statement.
However, 	these 	materials 	were 	created 	by 	Emhart 	— 	the 	proponent
of 	the 	hearsay 	statement 	— 	while 	litigation 	was 	pending, 	so 	they
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are 	entitled 	to 	little 	weight. 	Cf. 	Brookover, 	893 	F.2d 	at 	413,
418 	(affirming 	admission 	of 	the 	plaintiff’s 	statement 	under 	the
residual 	exception 	where 	it 	was 	corroborated 	by 	notes 	that 	the
defendant’s agent made shortly after the incident).
Similarly, 	Emhart’s 	reliance 	on 	the 	fact 	that 	the 	Cleary
Statement 	was 	signed 	under 	the 	penalties 	of 	perjury 	is
unavailing. 	For 	one 	thing, 	“[a]n 	oath 	alone 	. 	. 	. 	is 	an
inadequate 	safeguard 	to 	meet 	the 	requirement 	. 	. 	. 	that 	the
statement 	have 	‘equivalent 	circumstantial 	guarantees 	of
trustworthiness.’” 	Stokes, 	23 	F.3d 	at 	1366-67 	(quoting 	United
States 	v. 	Fernandez, 	892 	F.2d 	976, 	981 	(11th 	Cir. 	1989)). 	For
another 	thing, 	the 	Cleary 	Statement 	was 	not 	originally 	signed
under 	the 	penalties 	of 	perjury; 	it 	was 	only 	after 	one 	of
Emhart’s 	attorneys 	noticed 	the 	absence 	of 	this 	language 	that
Cleary 	was 	asked 	to 	execute 	a 	version 	of 	the 	Cleary 	Statement
under 	the 	penalties 	of 	perjury, 	(see 	Decl. 	of 	Phillip 	C. 	Swain
¶¶ 	5-6, 	ECF 	No. 	474-13), 	and 	there 	is 	no 	indication 	that 	the
significance 	of 	this 	belatedly-added 	language 	was 	explained 	to
Cleary. 	This 	case, 	therefore, 	is 	unlike 	Furtado 	v. 	Bishop, 	604
F.2d 	80, 	90-91 	(1st 	Cir. 	1979), 	where 	the 	First 	Circuit 	upheld
the 	district 	court’s 	admission 	of 	an 	affidavit 	of 	a 	deceased
affiant 	because 	the 	affiant 	was, 	as 	conceded 	by 	opposing
counsel, 	an 	“eminent 	attorney” 	who 	“could 	not 	have 	failed 	to
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appreciate 	the 	significance 	of 	the 	oath 	he 	took 	in 	executing 	the
affidavit.”
The 	sole 	remaining 	arrow 	in 	Emhart’s 	reliability 	quiver 	is
the 	fact 	that 	Cleary 	was 	neither 	a 	party 	to 	this 	litigation 	nor
a 	person 	with 	a 	financial 	stake 	in 	the 	outcome. 	This 	fact 	does
favor 	reliability, 	but, 	in 	light 	of 	the 	weighty 	considerations
indicating 	a 	lack 	of 	trustworthiness, 	it 	cannot 	alone 	carry 	the
day. 	In 	sum, 	this 	Court 	cannot 	say 	that 	“the 	totality 	of 	the
circumstances 	surrounding 	the 	[Cleary 	Statement] 	establish 	its
reliability 	sufficiently 	enough 	to 	justify 	foregoing 	the 	rigors
of 	in-court 	testimony 	. 	. 	. 	that 	ordinarily 	guarantee
trustworthiness.” 	Trenkler, 61 F.3d at 58.
2. 	Inconsistencies with Cleary Deposition
In 	addition 	to 	the 	unhelpful 	circumstances 	surrounding 	the
creation 	and 	execution 	of 	the 	Cleary 	Statement, 	three
inconsistencies 	between 	the 	statement 	and 	the 	Cleary 	Deposition
further 	doom 	its 	admission 	under 	Rule 	807. 	In 	his 	deposition,
when 	asked 	how 	many 	times 	he 	visited 	the 	Site 	over 	the 	years,
Cleary 	responded, 	“Oh, 	over 	a 	period 	of 	perhaps 	four 	or 	five
years, 	maybe 	two 	or 	three 	times 	a 	year.” 	(Cleary 	Deposition
92:2-92:5, 	ECF 	No. 	474-2.) 	By 	contrast, 	Cleary 	declared 	in 	the
Cleary 	Statement 	that, 	“[a]fter 	commercial 	operation 	started, 	I
visited 	the 	[Metro-Atlantic] 	plant 	about 	once 	a 	week.” 	(Cleary
Statement ¶ 7, ECF No. 474-14.)
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Additionally, 	the 	Cleary 	Statement 	is 	inconsistent 	with 	the
Cleary 	Deposition 	with 	respect 	to 	Metro-Atlantic’s 	storage 	of
trichlorophenol 	(“TCP”) 	at 	the 	Site. 	In 	his 	deposition, 	Cleary
admitted 	that 	he 	did 	not 	know 	where 	the 	TCP 	was 	stored. 	(See
Cleary 	Deposition 	59:15-59:16.) 	However, 	the 	Cleary 	Statement
asserts 	that 	the 	TCP 	“solution 	was 	transferred 	from 	the 	tanker
[truck] 	directly 	into 	the 	reaction 	vessel.” 	(Cleary 	Statement 	¶
11.)
Finally, 	the 	Cleary 	Statement 	and 	the 	Cleary 	Deposition
appear 	to 	be 	inconsistent 	on 	the 	number 	of 	times 	that 	Nuchar, 	a
charcoal-based 	decolorizing 	product, 	was 	used 	in 	the
hexachlorophene-manufacturing 	process. 	The 	parties 	agree 	that
it 	was 	used 	at 	the 	end 	of 	the 	process, 	and 	both 	the 	Cleary
Statement 	and 	the 	Cleary 	Deposition 	support 	this 	agreement.
(See 	Cleary 	Statement 	¶¶ 	5, 	16; 	Cleary 	Deposition 	41:1-41:11
(referring 	to 	the 	use 	of 	“special 	kinds 	of 	charcoal 	which 	absorb
the color” at the end of the process).)
However, 	a 	discrepancy 	exists 	over 	whether 	Nuchar 	was 	used
during 	the 	initial 	stage 	of 	the 	process, 	when 	the 	crude 	TCP 	was
purified. 	In 	his 	deposition, 	Cleary 	suggested 	that 	Nuchar 	was
used 	at 	this 	stage. 	When 	discussing 	“the 	phase 	of 	purifying 	the
[TCP],” 	which 	took 	place 	at 	the 	very 	beginning 	of 	the 	process,
he 	referred 	to 	a 	list 	of 	chemicals 	that 	were 	used 	to 	purify 	the
TCP. 	(Cleary 	Deposition 	50:14-50:15; 	see 	id. 	at 	40:18-40:21,
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48:13-48:20.) 	This 	list, 	which 	was 	marked 	as 	Exhibit 	8 	to 	the
Cleary 	Deposition, 	(see 	id. 	at 	48:13-49:2), 	bears 	the 	headings
“Phase 	I” 	and 	“Purification 	Equipment”; 	it 	also 	is 	accompanied
by 	a 	handwritten 	notation 	(presumably 	penned 	by 	Cleary) 	that
explains 	that 	it 	is 	a 	“bill 	of 	materials 	for 	purification 	of
trichlorophenol.” 	(Ex. 	7 	to 	Pls.’ 	Opp’n 	(“Exhibit 	8 	to 	the
Cleary 	Deposition”), 	ECF 	No. 	474-7.) 	Nuchar 	is 	one 	of 	the
materials 	listed 	in 	Exhibit 	8 	to 	the 	Cleary 	Deposition. 	(See
id.)
The 	deposition 	testimony, 	therefore, 	appears 	to 	indicate
that 	Nuchar 	was 	used 	in 	the 	initial 	phase 	of 	the 	process 	when
the 	TCP 	was 	purified. 	However, 	the 	Cleary 	Statement 	suggests
otherwise. 	After 	discussing 	the 	use 	of 	Nuchar 	at 	the 	end 	of 	the
hexachlorophene-manufacturing 	process, 	the 	Cleary 	Statement
proclaims, 	“This 	is 	the 	only 	step 	where 	Nuchar 	was 	added.”
(Cleary 	Statement 	¶ 	16.) 	The 	Cleary 	Statement 	makes 	no 	mention
of the use of Nuchar in the initial TCP purification phase.
Taken 	together, 	these 	inconsistencies 	further 	undermine 	the
trustworthiness 	of 	the 	Cleary 	Statement. 	Even 	more 	troubling,
the 	Cleary 	Statement 	makes 	no 	effort 	to 	reconcile 	these 	passages
with 	the 	contrary 	testimony 	of 	the 	Cleary 	Deposition. 	Although
Emhart 	attempts 	to 	demonstrate 	consistency 	between 	the 	Cleary
Statement 	and 	the 	Cleary 	Deposition, 	these 	belated
justifications 	are 	both 	wholly 	unpersuasive 	and 	beside 	the
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point. 	The 	fact 	remains 	that 	Cleary 	– 	the 	declarant 	— 	made
hearsay 	statements 	that 	are 	inconsistent 	with 	his 	prior
deposition 	testimony, 	which 	was 	given 	under 	oath 	while 	Cleary
was 	subject 	to 	cross-examination, 	and 	he 	offered 	no 	explanation
in 	the 	Cleary 	Statement 	for 	these 	apparent 	inconsistencies.
Because 	Cleary 	was 	not 	deposed 	in 	the 	present 	case, 	Defendants
here 	never 	had 	the 	opportunity 	to 	cross-examine 	Cleary 	on 	these
inconsistencies. 	As 	the 	proponent 	of 	the 	hearsay 	Cleary
Statement, 	Emhart 	has 	failed 	to 	shoulder 	its 	burden 	of
establishing trustworthiness.
B. 	Probative Value in Relation to Other Evidence
In 	addition 	to 	requiring 	circumstantial 	guarantees 	of
trustworthiness, 	Rule 	807 	also 	mandates 	that 	the 	hearsay
statement 	be 	“more 	probative 	on 	the 	point 	for 	which 	it 	is
offered 	than 	any 	other 	evidence 	that 	the 	proponent 	can 	obtain
through 	reasonable 	efforts.” 	Fed. 	R. 	Evid. 	807(a)(3). 	A
“statement 	will 	be 	considered 	‘more 	probative’ 	if 	the 	court
determines 	that 	the 	hearsay 	is 	relevant 	and 	reliable, 	and 	that
no 	other 	evidence, 	or 	very 	little 	other 	evidence, 	is 	available
on 	the 	same 	point.” 	5 	Weinstein’s 	Fed. 	Evid. 	§ 	807.03[3][a], 	at
807-25 (2d ed. 2014).
Emhart 	cannot 	satisfy 	the 	Rule 	807(a)(3) 	requirement. 	It
concedes 	that 	the 	Cleary 	Deposition 	is 	admissible 	in 	this 	case.
(See 	Pl.’s 	Opp’n 	14 	n.9, 	16, 	ECF 	No. 	474.) 	The 	Cleary
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Deposition, 	which 	explains 	the 	hexachlorophene-manufacturing
process 	in 	detail, 	is 	at 	least 	as 	probative 	as 	the 	Cleary
Statement 	on 	the 	points 	for 	which 	the 	statement 	is 	offered.
This 	conclusion 	defeats 	Emhart’s 	claim 	that 	the 	Cleary 	Statement
is 	more 	probative 	than 	the 	deposition 	testimony. 	See 	Awer, 	502
F. 	Supp. 	2d 	at 	276 	(“[T]he 	conversations 	are 	not 	highly
probative 	or 	necessary 	because 	[the 	declarant’s] 	written
statement, 	the 	best 	evidence 	of 	her 	assertions, 	is 	admissible.
Allowing 	the 	conversations 	would 	be 	merely 	cumulative, 	and
therefore inappropriate for admission under Rule 807.”).
III. Conclusion
For 	the 	reasons 	articulated 	above, 	this 	Court 	determines
that 	the 	Cleary 	Statement 	does 	not 	qualify 	for 	admission 	under
Rule 	807. 	It 	remains, 	therefore, 	inadmissible 	hearsay.4 As
4 In 	a 	last-ditch 	effort, 	Emhart 	argues 	that, 	because 	this
case 	will 	be 	tried 	by 	this 	Court 	and 	not 	a 	jury, 	the 	evidence
rules 	are 	relaxed 	such 	that 	this 	Court 	can 	“consider 	all
relevant 	evidence 	and 	weigh 	its 	probative 	value 	in 	rendering 	a
decision.” 	(Pl.’s 	Opp’n 	14, 	ECF 	No. 	474.) 	Although 	Emhart’s
position 	is 	not 	wholly 	unsupported, 	see 	United 	States 	v.
Raymond, 	697 	F.3d 	32, 	39 	n.6 	(1st 	Cir. 	2012) 	(suggesting, 	in
dicta, 	that 	“[i]t 	is 	at 	least 	arguable 	that, 	in 	a 	bench 	trial, 	a
district 	court 	has 	wider 	latitude 	in 	the 	admission 	of 	Rule
404(b) 	evidence”), 	this 	Court 	declines 	to 	relax 	the 	hearsay 	rule
to 	permit 	admission 	of 	the 	Cleary 	Statement. 	“The 	hearsay 	rule
of 	course 	applies 	in 	bench 	trials[,]” 	30B 	Charles 	Alan 	Wright
et 	al., 	Fed. 	Practice 	& 	Proc. 	§ 	7031, 	at 	333 	n.1 	(2011 	Interim
ed.); 	see 	also 	Broadcast 	Music, 	Inc. 	v. 	Xanthas, 	Inc., 	855 	F.2d
233, 	238 	(5th 	Cir. 	1988), 	and 	this 	Court 	discerns 	no 	reason 	to
excuse Emhart from its burden of satisfying Rule 807.
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such, 	it 	cannot 	be 	admitted 	at 	trial 	or 	relied 	on 	at 	the 	summary
judgment stage.5 Defendants’ Motions are GRANTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: 	November 7, 2014
5 This 	Court 	expresses 	no 	opinion 	at 	this 	juncture 	on
whether 	Emhart’s 	experts 	may 	permissibly 	rely 	on 	the 	Cleary
Statement in forming their opinions.
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