In Wammock v. Celotex Corporation, 793 F.2d 1518 (11th Cir. 1986), opinion withdrawn on other grounds, 835 F.2d 818 (11th Cir. 1988), an expert witness called by the plaintiff testified in apparent contradiction to testimony that he had given in other cases. Wammock 793 F.2d at 1520-21.
Plaintiff-appellee's expert witness, Dr. Schepers, testified frequently in asbestos litigation. In previous asbestos trials, he had testified that he had written to U.S. Gypsum Company in response to advertisements for products containing asbestos but that he did not recall having had dealings with defendant-appellant National Gypsum.
At the Wammock trial, Dr. Schepers testified to various matters, including the history of general medical knowledge of the potential hazards of asbestos from the 1930s to the time of the trial.
He also testified that he had corresponded with National Gypsum in the late 1950s in response to advertisements indicating that asbestos was one of the ingredients in its gypsum products.
Dr. Schepers testified that he advised National Gypsum that it would be "terrible to hide" asbestos with otherwise safe products. Wammock at 1520.
No copies of any such correspondence were produced. Dr. Schepers was dismissed by both parties, and he returned to his out-of-state home.
Defense counsel stated that he had been unaware of these inconsistencies until doing additional research after Dr. Schepers's testimony. Defense counsel further advised that he could not locate Dr. Schepers.
The trial court, although it made no specific finding of availability, premised its deliberations on the witness's unavailability and refused to admit Dr. Schepers's prior inconsistent testimony into evidence.
The Eleventh Circuit Court of Appeals affirmed, noting that, while the defendant's counsel may have had no knowledge of specific prior inconsistent statements, he did have sufficient knowledge of the witness's past performance to realize that his testimony in the present case that he corresponded with National Gypsum was inconsistent with the "general body of testimony" in other cases. Wammock at 1524.
In other words, he knew that Dr. Schepers's previous testimony indicated no communication of his concern to National Gypsum about its products.
The Court held that the case did "not involve the type of subsequently discovered prior inconsistent statements that would require a lower court to admit those statements in the witness's later absence." Wammock at 1525.
The Court also stated:
Where there is a reasonable explanation for the prior inconsistent statement that Dr. Schepers had reviewed records prior to the trial and located documents tying his former laboratory to National Gypsum and the witness is no longer available to present it, the interests of justice do not necessarily weigh more heavily in favor of admitting the prior statement than excluding it. Wammock at 1526.