Colloquy
153 linesTHE COURT: All right. Just for planning purposes, Sammy asked Mr. Tobin to be here as early as noon, just in case. With the fluidity of trial, I'm not sure what time we can get to that motion.
THE COURT: Just to let you know.
MS. BREDEHOFT: We have to know who i is.
THE COURT: Yeah, they need to work on that. They're going to find out who the next witness is. So let's go ahead and take a recess until 10:55, okay?
COURT BAILIFF: All rise.
COURT BAILIFF: All rise. Please be seated and come to order.
THE COURT: All right. Are we ready for the jury?
THE COURT: Okay. Sure.
MS. MEYERS: Your Honor, I think earlier when we were discussing the expert issue --
THE COURT: Oh, we're going backwards?
MS. MEYERS: I understand that. But this is why I wanted to grab this.
THE COURT: Sure.
MS. MEYERS: This is our rebuttal designations.
THE COURT: Right.
MS. MEYERS: We incorporate, by reference, the affirmative designations of both Mr. Neumeister and Dr. Collins.
THE COURT: Right.
MS. MEYERS: And so, we are offering to rebut -- not a fact witness, but evidence that was presented in their defensive case. We understand that rebuttal evidence is evidence that a plaintiff offers to explain or repel evidence that 9.9 the defendant offered -- the defendant offered --
THE COURT: It's only to rebut an expert.
MS. MEYERS: Your Honor, I think the rule.
THE COURT: I didn't work that way when I didn't let their expert testify.
MS. MEYERS: Well, Your Honor, I think that was a different issue because their expert was only designated in rebuttal to rebut the testimony of our expert doctor -- or Ms. Frost. In this case, we designated them affirmatively. In fairness --
THE COURT: In your case-in-chief.
MS. MEYERS: In our case-in-chief. And then those affirmative.
THE COURT: It's not in your defense.
MS. MEYERS: But this is also our rebuttal case, Your Honor, and we identified them as rebuttal witness that incorporated their expert testimony from their affirmative designations.
THE COURT: Right, so you could have called them in your case-in-chief.
MS. MEYERS: But we also designated them as rebuttal witnesses that would testify to --
THE COURT: Testify to what?
MS. MEYERS: To rebut the evidence that was provided during their --
THE COURT: And expert can only rebut an expert --
MS. MEYERS: So, Your Honor, my understanding is that an expert can be call --
THE COURT: It is reversible error if] let an expert testify unless they are designated.
MS. MEYERS: So we designated --
THE COURT: Reversible error is what I'm trying to avoid in this case.
MS. MEYERS: I understand that, Your Honor. So my understanding is that the rule is not that an expert can't be called in rebuttal unless they're rebutting another expert. But they can be called an expert -- you know, under that rule, an expert can never be called in rebuttal if there's no expert testimony on -- in the defensive case.
THE COURT: Okay.
MS. MEYERS: And so, what we are -- basically, during their defensive case -- so this is an issue of fairness. In our affirmative case the -- I would like to make a record, if I may.
THE COURT: Yes. Sure.
MS. MEYERS: Right. So the testimony of our experts, Mr. Neumeister and Dr. Collins, only became relevant once the photographic evidence of Ms. Heard's purported injuries came into evidence. That did -- we cannot control -- we obviously were not offering that, and they did not offer it when they were crossing Mr. Depp or anyone else during our case-in-chief.
THE COURT: They tried to offer it when they did the depositions of the police officers, which was objected to.
MS. MEYERS: Which was objected to. And then, it came in during their defensive case. And so, the testimony of Mr. Neumeister and Dr. Collins only became relevant once that evidence came in during their defensive case. And so, we are now offering -- which we -- you know, trials are fluid, we can't anticipate when or if certain evidence will come in. Photographs only came in during their defensive case, as well as Ms. Heard's testimony about how those injuries occurred. And so, now, the -- after their defensive case, the testimony of Mr. Neumeister and Dr. Collins has now become relevant based off of that evidence that they put in.
MS. MEYERS: And we submit that those experts, because we designated them at the first available date, we have designated what they intended to testify about, at that time, and then we incorporated, by a reference, that testimony, that they would respond to any photographic evidence and any purported injuries. We identified that when we submitted the experts for our rebuttal case, as well as identifying them to rebut to certain experts if they put them up. But we identified them as rebuttal witnesses who could testify about photographic evidence and other injuries that only came in during their defensive case. So we submit that that's proper and fair to permit them to testify.
MR. ROTTENBORN: I don't have anything to add to my arguments from this morning, Your Honor, unless you have any questions.
THE COURT: So they're saying since they incorporated -- as their expert designated for their case-in-chief, that the evidence came up about photographs in your case and, therefore, they can bring an expert in to talk about the photograph is, I believe, their argument.
MR. ROTTENBORN: They could have put the experts on in their case-in-chief. They obviously objected, as Your Honor pointed out, to our attempt to get pictures in. And for all the reasons that we discussed this morning and that Your Honor ruled, they're going backward.
THE COURT: Mr. Murphy, do you want to -- this is your motion, so...
MR. MURPHY: Yes, absolutely, Your Honor. Mr. Neumeister, Your Honor, the exact argument on Mr. Bercovici, I have the transcript, was that the expert was here to rebut the facts. And Your Honor said, no, experts essentially rebut experts. Now they're trying to say exactly what they argued against. Their expert is here to rebut the facts. That is a complete contradiction of Bercovici, from my understanding of it looking at the transcript.
THE COURT: Well, Bercovici was just a rebuttal expert. What they're saying the difference is -- so I want to go through this -- is that they actually had him designated, also, in their case-in-chief.
MR. MURPHY: They did, and they didn't call him. They also could have called Ms. Heard in their case-in-chief and put in the photographs, and they chose not to, that's, again, their choice. So there's no reason they can now put on an expert to rebut the factual testimony when he wasn't identified in the disclosure, and the rebuttal disclosure says he's here, over and over again, to rebut Ms. Ackert, who has not yet testified.
THE COURT: Well, no, it also says it incorporates the case-in-chief-
MR. MURPHY: In the line above that. But, Your Honor, if you can just insert incorporates everything previously in the case into every expert disclosure, it would just defeat the purpose of what the specific testimony is and 10-specific disclosures and specific parts of the case. I mean, Mr. Rottenborn said Your Honor ruled on this, this morning, and we're now trying to go backward.
THE COURT: Well, I want to make sure we get it right.
MS. BREDEHOFT: The incorporation, if you recall, Your Honor didn't let me have Dr. Hughes testify on things that we incorporated by reference into the designation for her testimony.
MS. MEYERS: So, Your Honor, a couple things. We can't be punished for not calling the defendant in our case-in-chief. The reason we objected to those pictures were foundational because there had not been a foundation laid for those photographs, and, you know, as we saw, some of these photographs actually did end up coming in for various reasons. So these experts truly only became relevant -- look, we couldn't have anticipated that. We identified them just in case these paragraphs did come in and that testimony did come in, in our case-in-chief, and it did not.
MS. MEYERS: And then on defendant's, they offered it in. I think that, you know, an expert can be called to rebut factual evidence --
THE COURT: Does anybody have case law for me? Any case law?
MS. MEYERS: We looked very hard. There's not a clear case law on this either way.
THE COURT: There's a reason for that.
MR. ROTTENBORN: They clearly knew they could have designated and called the experts in their case-in-chief because they put them in their January designations.
THE COURT: Designated them in their defense.
MR. ROTTENBORN: But they didn't.
MS. MEYERS: This is all rebuttal case. We're offering these not as a defense witness, but we're rebutting --
THE COURT: If you're offering them as rebuttal, then they don't testify.
MS. MEYERS: Well, we are offering them to rebut evidence that came in during their case -- in their defensive case.
THE COURT: All the case law I've ever read says you can't use an expert to rebut lay witness testimony.
MS. MEYERS: But it's not just lay witness testimony. We're rebutting fact -- documentary and photographic evidence.
THE COURT: That came in through lay witnesses, right?
MS. MEYERS: Yeah, but I think that -- again, I think the rule cannot be that an expert can't be called unless they're rebutting another expert, I think it has --
THE COURT: I'll tell you what, I'll give you until lunchtime to find me some case that says that in rebuttal, an expert can testify, even though an expert did not testify in direct, all right? I'll give them a chance to give me case law.
MR. ROTTENBORN: At some point, we just need to move on.
THE COURT: I'm giving them an hour and then we'll move on, okay? So we'll give you until lunchtime, which I guess will be around -- I'm not really sure. Who's up next?
MS. MEYERS: If we cannot call Dr. Collins, I think we will call Mr. Depp at this time.
THE COURT: We'll do that. So we're near the end. We're probably not going to have testimony tomorrow? Is that what we're thinking? Even if you get these witnesses in?
MS. VASQUEZ: So there is another So there is another issue, Your Honor. Our expert, Dr. Gilbert, who is rebutting and was designated just to rebut Dr. Moore, the hand surgeon, he can only testify in person tomorrow.
THE COURT: Okay.
MS. VASQUEZ: He's scheduled to fly this evening.
THE COURT: Well, I don't think the jury has any problems with me releasing them early. We can work on jury instructions if that's the case. Were you planning any rebuttal on evidence?
MS. BREDEHOFT: Yes, Your Honor, we're planning on calling Dr. Hughes and Amber Heard. That's it. And both are relatively short.
THE COURT: Is there any way -- well, I guess it'll depend on this, this issue.
MS. MEYERS: And, Your Honor, if may, and Ms. Vasquez just reminded me of this. I do believe, especially with respect to Dr. Collins, her testimony is rebutting the evidence that came 30693 to May 25, 2022 in from Dr. Moore, who testified about Mr. Depp's finger injury, and that was designated in her affirmative disclosure.
THE COURT: Okay.
MR. ROTTENBORN: No, that's -- I'll wait.
MS. MEYERS: And I believe that she could also be designated to come -- I think she's also rebutting the testimony from Dr. Hughes, that Ms. Heard's injuries resulting from IPV were more severe than Mr. Depp's, and she testifies to the severity of the injuries. So I think that was -- those types of information were disclosed in our affirmative designations and identified in rebuttal, which under Your Honor's ruling, can be offered to rebut expert testimony.
MR. ROTTENBORN: A couple things, Your Honor. She's designated to rebut the opinions of Dr. Jordan --
MS. MEYERS: But she is also designated -- her original designations are also incorporated by reference -- incorporated by reference--
MR. ROTTENBORN: If I may finish, Your Honor.
MS. MEYERS: -- on rebuttal.
MR. ROTTENBORN: Dr. Moore was not designated until February. Ms. Meyers just told you that she was designated to rebut the opinions of Dr. Moore. That's not true.
MS. MEYERS: I did not.
MR. ROTTENBORN: You did just say that. She was designated to rebut the opinion of Dr. Jordan, and I have her testimony where I asked her, are you rebutting the testimony of Dr. Moore, and she says no. I want to -- I can get it from the outline
MS. VASQUEZ: If I may, Your Honor, just briefly be heard. I'll wait.
THE COURT: Yes. Wait.
MS. VASQUEZ: If I may briefly be heard on that point.
THE COURT: Uh-huh.
MS. VASQUEZ: She, in her affirmative designations, Dr. Collins opined as to the cause of the finger injury.
THE COURT: Okay.
MR. ROTTENBORN: Here's page 87.
THE COURT: I have to go by designations. You understand that.
MS. VASQUEZ: We do.
THE COURT: Again, we're not getting reversible error in this case.
MS. VASQUEZ: We understand, Your Honor.
THE COURT: I'll read the designations to the rule.
MR. ROTTENBORN: Just because they told you that she was rebutting Dr. Moore's testimony, please, just read that.
THE COURT: You're not offering any expert opinion in reaction to or in rebuttal to Dr. Moore's opinion, correct? Correct.
MS. MEYERS: Okay, so, Your Honor, I think --
THE COURT: That's the deposition
THE COURT: That's the deposition.
MS. MEYERS: I understand that. Your Honor, I think the point is, is that we identified her -- what her testimony from her affirmative designations as potential rebuttal evidence, and we could not have known whether Dr. Moore was coming in. Her testimony -- she's not rebutting Moore specifically, and she won't opine onto any of his things. But her testimony about the finger injury is explanatory or, you know, rebuts what Dr. Moore testified to.
THE COURT: That needs to be designated. I have to go by the designations, okay?
MS. MEYERS: I understand.
THE COURT: So that was clear. Now, if you want to find me something, in the next hour, on Mr. Neumeister, we'll take that up.
MS. MEYERS: Well, I think the issue that we -- excuse me, the case law that you asked us to look for is whether an expert can be offered to rebut factual evidence that didn't necessarily come in through an expert witness. May 25, 2022
THE COURT: Right.
MS. MEYERS: We will look for that because that would apply to both of them.
MR. ROTTENBORN: I would disagree that that's the only issue. We can see what they come up with. We still think that there's the initial rebuttal things. As Your Honor will remember with Mr. Bercovici, he said I'll testify in rebuttal to Mr. Frost and there was a comma and he said --
THE COURT: Oxford comma.
MR. ROTTENBORN: I'm not going backwards on that. I'm just saying that was something that was designated.
THE COURT: Well, he was just designated as a rebuttal expert. I think this is apples and oranges, but I just -- I have never seen, and I don't want to create reversible error, I have just never seen an expert rebut lay testimony.
MR. ROTTENBORN: Particularly when they have the opportunity when they designated --
THE COURT: And I even took the on nNU PWN — oO Yes.
THE COURT: And I even took the metadata out of it, so there's not even any metadata in the evidence.
MS. MEYERS: I understand that. I think, particularly with respect with Dr. Collins, it's not so much that she's responding to -- not responding to Jay testimony, she's providing an expert opinion to explain the factual evidence that came in during the defense's case.
THE COURT: That's a no for sure. So if you want —-
THE COURT: Okay.
MS. BREDEHOFT: Your Honor, we have all our experts and we are releasing them all, I mean --
THE COURT: Excuse me. You're releasing -- oh, you have Dr. Ackert here. I can only give you until noon.
THE COURT: Yeah, I can only give you until noon to see what you can find out, okay? I don't think there's going to be much there.
MR. ROTTENBORN: Thank you, Your Honor.
THE COURT: I'm not creating reversible error. You have to understand this.
MS. VASQUEZ: We do understand that. The only point I'll make is that I don't understand that -- how a party can designate a rebuttal witness --
THE COURT: Rebuttal expert.
MS. VASQUEZ: A rebuttal expert witness only to testify if the defense puts on an expert?
THE COURT: That's what rebuttal experts are. In Virginia.
MS. VASQUEZ: I understand. But we'll find the case Jaw, I hope. Thank you, Your Honor.
MR. ROTTENBORN: Thank you, Your Honor.
THE COURT: Allright. Your next witness. I'm sorry, let's get the jury first, right? Are we ready for the jury? Are we ready for the jury?
MS. BREDEHOFT: Yes, Your Honor.
THE COURT: Allright. Thank you. Are we ready for the next witness?
MS. MEYERS: Yes. We call Mr. Depp.
THE COURT: Okay. Allright. Sir, just to remind you, you're still under oath, okay?
DR. CURRY: Yes, ma'am. Thank you, Your Honor.
THE COURT: Allright. Thank you.
[STAGE DIRECTION]: JOHN C. DEPP, II, being first duly sworn, was examined and testified as follows: