BEFORE THE POSTAL RATE ComISSIoD WASHINGTON, D.C. ,- SPECIAL SER"ICES FEES AND CLASSIFICATIONS Docket 1 No. ~~96-3 MAJOR MAILERS ASSOCIATION'S OPPOSITICXN TO UNITED STATES POSTAL SERVICE'S WOTIlON TO STRIKE TESTIMONY OF KKA WITNESS BENT:LEY Major Postal Mailers Association asks Service's Motion, dated to testimony of pertains the the Commission November 14, MMA witness to 1996, deny the insofar as Bentley. / fly;!t~ .i'-', ' . i:.,:: INTRODUCTION The witness Postal Bentley reference 1 and to LR-2 and and Reference witness and the is 5). its is authorizes which is and other the declarant "need to Docket in not that or for LR-2 of theyiz,"make Lb, References complaint is not is sponsored evidence. the motion to motion that the Service's ~.+g f , ,; ..J ' J : ".. PRC-LRthat by in R94-l--a MM?+ c ,,. .r ' b This any Service strike that the R94-l/63). Docket in No. law. R94-1, Rule 703 witnesses be admissible to in experts to are admissible some as Service's to No. testimoni.es Library admissible expert permit facts and (POR No. motion the insofar identical unsupportable Evidence The not in denied have w!!ly@~.~- Commission PRC-LR-1 filed Like purpose p. to stricken upon" substantively Commission data rely therefore Service motion wants others (Motion, Library motion ,I. Service it not other base the base Federal their opinion "[T]he on reliable because Rules opinions evidence." reason..." 1 of current of the (2 Graham, of on rule's hearsay absence Of Handbook of .'- -1 ,- Federal Evidence relaxed standards like this 5703.1 of the Commission "irrelevant,, (4th Ed. 1996)). And Administrative need not immaterial, or under Procedure exclude unduly the more Act, evidence agencies unless repetitious" it i-s (5 U.S.C. §556(d)). In addition, Bentley but is is not using only. Even that approach, with Commission Bentley's There use, motions another submitted strike in November stand. the or is no exhibit The business There refusal to that Service the Commission days valid deny comply Mr. can refute has the (p. materials before Service's before excuse Special 1, are the motion the 51.C): to "All be sczheduled is Bentley Mr. for Postal Commission's provide 14 days least witness." four 14, a "second the to The proceeding testimony at reason untimely. this writing of appearance that LR-2, purposes is believes inaccurate, and illustrative notes, Mr. file. is for belief, PRC-LR-1 Service's Service important It Practice to to of Bentley information Service Service's for the the are motion. of Mr. If the Postal accuracy by orders. is Service's the necessitated the the references limited illustration directed Rules to library by providing them to testifying those best" the contrary dated is due Service's to take delay. DISCUSSION A. The that ,.._ An Expert's Opinion Testimony Is Admissible Even If It Relies Upon Materials That Are Not Themselves Admissible In Evidence Postal an expert's sources. Nor Service testimony could the does not offer cannot Service rely do so, any upon since citations for its Viai non-evidentiary all authority is to 2 -- -- - the contrary. _- The Federal of Evidence opinions have upon evidence. Rule Rules. For permitted facts Rule or 703 over twenty expert data the to base witnesses that provides years, are (56 not F.R.D. Federal their themselves 183, Rules admissible 283; in 28 U.S.C.A. 703): BASES OF OPINION TESTIMONY BY EXPERTS. The facts or particular case upon which an expert bases an opinion inference may be those perceived by or made kTlOWn to or before the hearing. If of a type reasonably relied upon in the particular field in forming opinions or upon the subject, the facts or data need not be in evidence (Emphasis supplied). by experts inferences admissible The data in or him at Advisory Committee's (Id.) Note emphasizes that: In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practj.ce in line with the practice of the experts themselves when not in court. The based result not some 703 annotations to into error. Federal authorizing that F.2d is not evidence absence (7th of Nonetheless --- of "and of Handbook of have witnesses itself admissible Rule case Cir. courts to Evidence other the be facts declarant Federal that or for Evidence to a defective survey the of Court __ v. the There, 1980). rely in Baumholser is uniformly interpreted upon nonrecord evidence (See 703). was Appeals 3 -.. Rules 1995) expert 28 U.S.C.A. illustrative 550 the (2 Graham, Decisions. as of testimony 1996)). information One ,- Ed. expert Federal Callaghan because reason... (4th "allows 703 Boardman admissible Court 630 Rule (Rothstein, (Clark other s703.1 Rule that on hearsay...." 290.6-290.7 are is Amax Coal lower held, ruled Company, court's admission on appeal, that to an expert be the could ,,-. the properly testify inadmissible said (630 about survey. F.2d at his conclusion Citing Rule that 703, the was Court based of upon Appeals 553): Barnes was testifying as an expert and as such was entitled to rely on hearsay evidence to support his opinion, so long as that evidence was of a type reasonably relied upon by other experts in the field. That evidence need not be independently admissible. The Seventh Standard denied, Oil 356 Circuit Company U.S. v. 975 (Id.) quoted Moore, (1958), 251 a Ninth F.2d 188, Circuit 222 decision, (3.957), cert. stating: It is common practice for a prospective witness, in preparing himself to express an expert opinion, to pursue pretrial studies and investigations of one kind or another. Frequently, the information so gained is hearsay or double hearsay....This, however, does not necessarily stand in the way of receiving such expert opinion in evidence. The Administrative administrative more Law Procedure agencies relaxed 528.01 that (Matthew "apply those used Bender)). Act. rules by It of courts" Thus (Id. is hornbook evidence (4 Stein, at s26.01): law that considerably Administrative Even before enactment of the Administrative Procedure in a long line of cases, established the Supreme Court, Act, the general rule that administrative agencies are not to be One of the direct bound by formal rules of evidence. results of this decision was the elimination of the usual This rule which declares hearsay evidence inadmissible. view has been statutorily adopted in the Administrative Procedure Act which provides for the admission of all evidence which is not "irrelevant, immaterial, or unduly repetitious" (citing 5 U.S.C. §556(d) and other authorities). Whether judged relaxed" standards Bentley's opinion upon the Commission's by for the standards for administrative testimony library courts agencies, would be references. .r- 4 admissible or the “more MMA witness even if was based OG59lb B. Mr. Bentley's Testimony Is Not Dependent Upon the Commission's Workpaper, Which Is -Only For Illustrative Purposes ,- A second that Mr. reason Bentley's LR-2. "The oppose the Postal of of attributing city substantiate Mr. to disclosing the Service's predicated proposal carrier his Postal not is Service's using the my testimony," without consequences upon Bentley position, costs" Mr. Bentley PRC-LR-1 new rates (Test., p. his to and the methodology states and "is showing Commission-approved is states, establish information delivery motion for 1). To opinion that 1. The a:Ll 2. If the Commission does not insist upon the use of consistent methodologies, there will be difficulties comparing financial data from one proceeding to another, from one year to another, or from Commi.ssion opinions to CRA reports (Test., p. 4); Commission should cases (Test., p. use 2); consistent methodologies in 3. The importance of using consistent methodologies is underscored by comparing the dollar amount of overhead costs assigned by the Service's preferred methodology, as compared with the Commission-approved methodology (Test., pp. 4-7); 4. The Commission should adopt a regulation in all future proceedings, Postal Service, information showing its costs under the approved methodology (Test., pp. 7-8); 5. The Commission should insist upon full disclosure in this proceeding in order to forestall the Service from filing future rate and classification requests with inadequate information (Test. pp. 2-3). Before LR-2, the Mr. illustrated Docket library /- denying testimony purpose classifications and for testimony Commission Bentley point No. R94-1 (3) cost references, be had extended issued drafted by using numbers MMA asked allow Library testimony After data. "to its that it 5 Reference in derived which from the Commission the date to requiring the to provide Commission- for incorporate PRC-LR-1 he outmoded issued filing the those its 1995 cost in ,/- information made PRC-LR-2. (POR No. Mr. and that similar LR-2 "it Mr. data would to (Test., p. Mr. seek use purport to On the that the have record that the Service refused that for to a Postal Service information--and the after access" by Postal basis say contrary, to on the such of PRC-LR-1 Mr. of carrier is "I the am thus calculation"' LR-2 Bentley's choosing data costs are is for that (Id.). huge..." from the attribution of Service Cannot Object and LR-2 of PRC-LR-1 To Hr. Bentley's apparent the thus for or is not is conclusi.on a methodology delivery true and whether and No. the only. consequences conclusion C. not helpful a second-best city used, been noted purposes apportioning Docket have for Bentley's dollar This and 4). illustrative "the References...PRC-LR-1 correct. "presented request compelled does are Bentley Commission's are testimony calculations witness," Library MC96-3115). Bentley's PRC-LR-1 noting available...in PRC-LR-I. and LR-2 postal data costs R94-1. The Use As A "Second-Best" Source When That Is Necessitated By the Service's Withholding of Data That the Commission Has Ordered the Service To Prcm In any Commission to rely event, orders upon Service '*It .- (Test., is in PRC-LR-1 should disentangle to is not the the provide PRC-LR-1 calculation" that it and p. Postal Service's data LR-2 that to best position" and LR-2 approximate left to the parties of the Postal effect provide (Order 6 required or to Mr. basis Commission the be has a "second-best as "[T]he 4). refusal found the 1134, Bentley for that cost p. obey the the information 4) the Commission Service's proposed and that to changes in to ,- established proposed has changes ordered Service the has orders..." object that attribution to the Rules of fees" Service failed to (Order No. Mr. that [these] 1134, p.16). The employment conduct of has case 12). of The Commission but lawful Postal its "the Commission Service a "second-best" cannot approach necessitated.' Was Filed After The In the Commission's Excuse For the Delay! motion this effects information, with Service's for p. comply own Practice the 1126, supply The Service's Motion Deadline Established Rules, With No Valid Postal from (Order to Bentley's Service's D. The in methods is untimely. (p.1 §l.C), In the its Spec:ial Commission specified: 1.. EVIDENCE C. Motions to strike are requests Motions to Strike. for extraordinary relief and are not substitutes for briefs or rebuttal evidence. All motions to strike testimony or exhibit materials are to be submitted in writing at least 14 days before the scheduled appearance of the witness... (2d emphasis suppli.ed). The Service's motion is dated Thursday, November 14., which is ' The Service's failure to produce the requested which would prove or disprove the accuracy of PRCinformation, LR-1 and LR-2, justifies a presumption that PRC-LR-1 and LR-2 are correct and are an accurate update of the Commission's Docket No. "It is generally held that, R94-1 cost attribution methodology. .possesses positive and complete knowledge where [one] party.. or has peculiar knowledge or concerning the existence of facts... control of evidence of such matters, the burden rests on him to produce the evidence, the negative averment being taken as true unless disproved by the party having such knowledge or control." Evidence $113 (1964)(citations omitted). "In the 31A C.J.S., the failure or refusal of a party to absence of explanation, produce evidence may create an adverse inference where such evidence is within his knowledge, and where, the courts have declared, the evidence which the party fails or refuses to is not equally accessible produce is within his power to produce, and is such that he would naturally produce it to his opponent, Id. at $156(l)(citations omitted). if it were favorable to him." Accord, 2 Wigmore on Evidence §§285-91 (Chadbourne Rev. 1979); Jones on Evidence §3:91 (1972). 7 only 1- four business November day (The 19. to days notify Service 1, pp. is no valid ago, on September his response to use the acknowledged detailed calculations" apportionment of "accept[ed] the until about excuse 30, of its for Mr. PRC-LR-1 Service's Bentley Bentley is due mid-day testify on the See motion. to on following USE'S' date stamp l-2.) There explaining Mr. waited MMA counsel on Attachment weeks before that costs Service's Bentley and First that the filed his And of Interrogatories, Set he had "not the Service on October attempted and representation" make about that he had in 25, in Mr. to requested Six testimony, LR-2. (USPS/YMA-6(c)) Commission's tardiness. PRC-LR-1 the the simply and LR-2 (USPS-MMA-8(a)).* The its Postal Service's is sufficient reason to deny motion. FOR THE FOREGOING Service's to tardiness Motion MMA witness to REASONS, Strike, Bentley's MMA asks dated November that 14, the E'ostal 1996, be denied as testimony. Nineteenth St. N.W. Suite 400 Washington, DC 20036 Phone: (202) 466-8260 November -. 18, Counsel 1996 for MMA elaborated these points in his 2 Although Mr. Bentley November 7 response to the Service's Second Set of Interrogatories, the Service did not need to await these in order to file its motion (especially since it had filed a similar motion to strike Mr. Bentley's testimony that relied upon a similar PRC workpaper in Docket No. R94-1). 8 CERTIFICATE OF SERVICE _- I hereby certify that I have this day served the foregoing document (1) upon the U.S. Postal Service by facsimile (transmitted at 11:30 a.m. )(2) upon the Office of the Consumer Advocate by hand delivery and (3) upon the other parties by First-Class Mail. November 18, 1996 ,- ATTACHMENT 1 TO MMA'S RESPONSE TO USPS' MOTION TO STRIKE TESTIMONY OF MMA WITNESS BENTLEY (USPS Facsimile to MMA Counsel, Dated November 15, 1996, pages l-2) NOV 15 ‘96 ll:lZRfl USPS LAW DEPRRTflENT FAX COVER SHEET TO: Dick Jeff FAX NO.: (202) 293~+-97 PRONE NO. : (202) 466-8260 NO. OF PAGES (including this RE: Littell Plummcr page): 8 MC96-3 MESSAGE: FROM: Susan M. Duchek Attorney United States Postal Service 475 L'Enfant Plaza West, S.W. Washington, D.C. 20260-1137 (202) 268-2990; fax -5402 ., ., NO\, 15 ‘96 11: 1ZFlFl LISPS LRW DEPARTMENT BEFORETHE POSTAL RATE COMMISSION WASHINGTON, D.C. 20266-0001 SPECIAL SERVICES REFORM, 1995 Docket No MC96-3 UNITED STATES POSTAL SERVICE MOTION TO STRIKE TESTIMONY OF WITNESSES BENTLEY AND THOMPSON, OR, IN THE ALTERNATIVE, FOR PRODUCTION OF A COMMISSION WITNESS (November 14, 1996) On September references, 20, 1996, the Commission gave notice that it had placed two library PRC LR-1 and I-R-2, in the Docket Section for public use,. According Commission, these workpapers Commission’s to the provided “cost information described in the Order No. 1134.” which was also issued on September 20. 1996. Notice of Filing of Workpapers (September 20, 1996).’ In Order No. 1134, the Commission indicated that the two library references were produced pursuant to the Commission’s instruction to its staff “to prepare documents showing the base year 1995 calculation the direct and indirect city carrier costs using the established methodology of of single subclass stops,” and “showing the base year costs attributed to the classes and service using approved methods, and the established test year attributions employing, to the extent possible, the roll-forward procedure used by Postal Service witness Patelunas.” Order No. 1134 at 16 Following issuance of the two Commission library references, various parties to this proceeding have made reference to, and relied upon, those library references ’ The Commission revised these library references on September Notice of Filing of Revised Workpapers (September 30, 1996). in written 30, 1996
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