Corporation Cannot Serve as Expert Witness, Del. Chancery Court Rules

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By Michael Greene

Feb. 27 — The defendants in a consolidated lawsuit arising out of Dole CEO David Murdock's take-private transaction of the company cannot designate a corporation to serve as their expert witness, according to a Feb. 27 Delaware Chancery Court ruling.

Vice Chancellor J. Travis Laster held that an expert witness must be a biological person, and therefore, the defendants could not rely on the corporation they designated to serve as their expert for valuing the transaction.

To mitigate the harm that the defendants might suffer if forced to proceed without an expert, Vice Chancellor Laster concluded that the defendants could substitute as an expert witness the biological person whom they intended to call as the corporation's agent.

Corporate Expert Witness

The defendants identified Stifel, Nicolaus & Co. as their expert witness on the subject of Dole's value at the time of the take-private transaction. The corporation additionally was listed as such on multiple expert reports served by the defendants.

After the plaintiffs noticed a deposition, Stifel produced its managing director, one of the actual humans who signed the report, as the person most knowledgeable about the reports.

When the managing director claimed authorship of the reports the defense counsel objected, asserting that “he's not the expert” and insisting that Stifel was the expert witness.

Biological Person Only

Vice Chancellor Laster found that even though Delaware law treats corporations as if they are people in many other contexts, Delaware's Rules of Evidence make clear that a witness must be a biological person.

He observed that corporations cannot do many of the actions required under the evidence rules to be capable of serving as a witness.

“Lacking a voice, a corporation cannot testify. Lacking ears, it cannot hear. Lacking a mind, it cannot have personal knowledge or a memory to be refreshed. Lacking a conscience, it cannot take an oath or provide an affirmation. And because of its incorporeal nature, it cannot even meet Delaware's statutory requirement that a person taking an oath do so ‘with the uplifted hand,'” Laster opined.

He additionally found that a corporation could not finesse its away around these problems by seeking to testify through an agent because witnesses are not permitted to testify through agents.

“Even a biological person cannot send another person to testify on his behalf,” he added.

Accordingly, Laster held that Stifel could not serve as the defendant's expert witness, but that to avoid prejudice the defendant could substitute the corporation's managing director who testified during the deposition.

“[The managing director] has a body and brain. Assuming he is otherwise qualified, he can serve as an expert witness. Stifel has neither and cannot,” he wrote.

Sweetheart Deal

Investors, including pension funds from Oklahoma and Massachusetts, have brought claims that Murduck's buyout of the company was the result of a sweetheart insider deal.

The investors are asking the chancery court to find that an independent directors' committee didn't fulfill its duty, and they question whether $13.50-a-share was the best possible price for the 60 percent of the world's largest fresh fruit and vegetable producer that the Murdock family didn't already own.

Trial began Feb. 23, and Andrew J. Conrad, the leader of the independent committee, has testified that the special four-member panel did everything it could to get Murdock to pay more when he took the company private.

To contact the reporter on this story: Michael Greene in Washington at mgreene@bna.com

To contact the editor responsible for this story: Kristyn Hyland at khyland@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/IN_RE_DOLE_FOOD_CO_INC_STOCKHOLDER_LITIGATION_IN_RE_APPRAISAL_OF_.