CIT Grants Bid to Reopen Expert Discovery Following Criminal Conviction of Expert Witness
Court of International Trade Judge Timothy Stanceu granted a motion from importer Nutricia North America that asked to reopen discovery to replace the company's expert witness in an ongoing case regarding classification of infant formulas (Nutricia North America v. United States, CIT #16-00008). Nutricia asked for the record to be reopened after it discovered that its witness, Dr. Joel Lavine, was convicted of sexually abusing an adult former patient. With the order from Judge Timothy Stanceu, Nutricia will replace Lavine with Dr. Jonah Essers.
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The six-year-old test case stems from Nutricia's claim that its formulas should be classified as medicaments of heading 3004 and also duty-free under special tariff provisions for articles for the handicapped under subheading 9817.00.96. In the same April 22 brief moving to reopen the record, Nutricia also asked the court to allow it to withdraw its earlier motion for summary judgment.
The previous judgment motion was based in part on the medical opinion of their former expert, Nutricia said. Over the course of the case, and unbeknownst to the parties, Lavine was arrested and convicted. After Lavine's Feb. 22 sentencing, DOJ made Nutricia aware of Lavine's conviction, a lawyer close to the matter said. DOJ lawyers agreed to allow Nutricia to find a new medical expert witness to for the case, leading to Stanceu's order.
Lavine had already provided his testimony and Nutricia had already filed its motion for judgment, leading to Lavine's conviction throwing a wrench in the proceedings. However, the plaintiff, through a third-party firm, was able to replace Lavine with Essers, whose testimony will lay out nearly the same facts as Lavine's, the lawyer said. As for due diligence relating to the selection of witnesses going forward, the lawyer floated the possibility of requiring potential witnesses to declare that they will alert the litigants to any ongoing criminal matters. However, this ultimately would not have changed Nutricia's move to replace Lavine.
Both Nutricia and the government believe this is the "best and most efficient course of action to ensure that the underlying tariff classification issues involving infant and children’s medical foods are not unnecessarily tainted or distracted" by the criminality of the previous expert witness, Nutricia's motion said. Under the consent motion, reopening of discovery is limited to allowing a new expert witness his opinions on the same five topics that Lavine had addressed. Namely, (1) the expectation of the ultimate purchasers regarding the products; (2) physical characteristics of the merchandise; (3) its use; (4) any recognition in the trade of its use; and (5) whether the products are suitable for persons with disabilities and what disabilities the products treat.