In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2486

Timothy K. Ueland,

Plaintiff-Appellant,

v.

United States of America,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2960--John W. Darrah, Judge.

Argued May 16, 2002--Decided June 3, 2002


  Before Easterbrook, Rovner, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. A collision
between a prison van and its chase car
has led to this suit under the Federal
Tort Claims Act. The van was carrying
four prisoners from the federal prison in
Pekin, Illinois, to the Metropolitan
Correctional Center in Chicago. The
driver of the chase car, trailing the van
for security, was supposed to ensure that
no other vehicle would come between the
two. During stop-and-go driving on a
congested road, the chase car hit the
van. According to the Bureau of Prisons,
the relative speed of the collision was
between 5 and 10 miles per hour, all
prisoners had been wearing seat belts, no
injuries ensued, and the van (which
suffered no damage from the impact) drove
to its destination. According to Timothy
Ueland, the plaintiff in this case, none
of the prisoners had been secured with a
seat belt, and he was thrown violently by
a high-speed impact into the "cage" at
the front of the van. Ueland contends
that he suffered back and neck injuries
that have caused him great pain.

  Ueland’s testimony at trial was
supported by a chiropractor and in part
by James Reed, a physician at the federal
prison to which Ueland was transferred
following his detention in Chicago. Dr.
Reed testified that Ueland has serious
back injuries. The United States’
position was supported by the testimony
of three guards who participated in the
transportation plus that of Dr. Reed, who
opined that Ueland’s back problem
predated the accident. At the close of
trial, the district judge ruled from the
bench. The judge did not make findings on
any of the concrete disputes (such as
whether the prisoners had the benefit of
seat belts, the speed difference between
the van and the car at the time of the
impact, whether the shock threw the
prisoners forward, and what the medical
consequences for Ueland had been).
Instead, after reciting a few uncontested
points, such as that a collision had
occurred and that the chase car’s driver
had been negligent, the judge stated:

I further find, however, that the
defendant [sic: must mean Ueland]
has failed to meet its [sic] burden
of proof that this negligent conduct
of the operator of the vehicle
following the one in which the
plaintiff was riding was the
proximate cause of any injuries to
the plaintiff. And I further find
that the plaintiff has failed to
meet its--his burden of proof that
the plaintiff suffered any damages
as a result of the negligence of
the defendant. Therefore, the
complaint filed by the defendant
[sic] herein and the relief sought
is denied, and judgment is entered
on that complaint in favor of the
defendant United States.

These uninformative conclusions do not
satisfy Fed. R. Civ. P. 52(a), which says
that "[i]n all actions tried upon the
facts without a jury . . ., the court
shall find the facts specially and state
separately its conclusions of law
thereon". Here the district judge did not
find any facts or reveal his resolution
of any of the factual disputes that had
received attention at trial. Cf. Jutzi-
Johnson v. United States, 263 F.3d 753
(7th Cir. 2001). We cannot rectify this
by remanding for compliance with Rule 52,
because the judge also committed a
serious evidentiary error.

  Ueland offered as substantive evidence
the deposition of Chong-Won Tai, another
of the prisoners in the van. This
deposition, taken by the United States in
a separate lawsuit, provided evidence
supporting Ueland’s description of the
events. Chong-Won Tai testified that the
van had been going fast and suddenly
decelerated before the collision,
implying that the relative speed of the
impact was high; he also testified that
the prisoners had not been wearing seat
belts and that the force threw them
against the cage. The Assistant United
States Attorney objected on hearsay
grounds. (Actually, the district judge
objected for her, and she then chimed in
to support the judge’s order sustaining
his own objection.) Yet the deposition
could not properly be excluded as
hearsay.

At the trial . . . any part or all
of a deposition, so far as
admissible under the rules of
evidence applied as though the
witness were then present and
testifying, may be used against any
party who was present or represented
at the taking of the deposition or
who had reasonable notice thereof,
in accordance with any of the
following provisions: . . .

(3) The deposition of a
witness, whether or not a
party, may be used by any
party for any purpose if the
court finds:

(A) that the witness is
dead; or

(B) that the witness is
at a greater distance
than 100 miles from the
place of trial or
hearing, or is out of
the United States,
unless it appears that
the absence of the
witness was procured by
the partyoffering the
deposition; or

(C) that the witness is
unable to attend or
testify because of age,
illness, infirmity, or
imprisonment; or

(D) that the party
offering the deposition
has been unable to
procure the attendance
of the witness by
subpoena; or

(E) upon application and
notice, that such exceptional
circumstances exist as
to make it desirable, in
the interest of justice
and with due regard to
the importance of
presenting the testimony
of witnesses orally in
open court, to allow the
deposition to be used.

Fed. R. Civ. P. 32(a)(3). Ueland’s lawyer
pointed out that Chong-Won Tai was being
held by the United States at a prison
more than 100 miles from Chicago, making
the deposition admissible under Rule
32(a)(3)(B). In excluding the deposition
as hearsay, the district judge relied on
Fed. R. Evid. 804, treating the testimony
as out-of-court statements offered for
the truth of the matter stated. Yet Rule
32(a) says that a deposition may be used
if "admissible under the rules of
evidence applied as though the witness
were then present and testifying". If
Chong-Won Tai had been "then present and
testifying", none of his statements could
have been excluded as hearsay. He was
reporting what he claims to have
experienced, not relaying what someone
else told him. Rule 32(a), as a free-
standing exception to the hearsay rule,
is one of the "other rules" to which Fed.
R. Evid. 802 refers. Evidence authorized
by Rule 32(a) cannot be excluded as
hearsay, unless it would be inadmissible
even if delivered in court. See Angelo v.
Armstrong World Industries, Inc., 11 F.3d
957, 962-63 (10th Cir. 1993); Southern
Indiana Broadcasting, Ltd. v. FCC, 935
F.2d 1340, 1342 (D.C. Cir. 1991); United
States v. Vespe, 868 F.2d 1328, 1339 (3d
Cir. 1989); Carey v. Bahama Cruise Lines,
864 F.2d 201, 204 (1st Cir. 1988).

  Use of depositions as substantive
evidence is normal in federal practice.
What is even more disappointing than the
district judge’s spontaneous refusal to
admit the deposition is the United States
Attorney’s defense of that decision. A
claim of harmless error would not be
tenable (and is not made); the judge
hearing Chong-Won Tai’s own suit believed
his testimony and awarded him $900 in
damages. Instead the United States asks
us to condition the use of any deposition
on proof that determined attempts to
bring the witness to court had failed--
here by asking the district judge to
issue a writ of habeas corpus ad
testificandum. In other words, the United
States contends that Rule 32(a)(3)(D)
should be the exclusive ground of
admissibility, and that no separate
function should be allowed to Rule
32(a)(3)(B). This is not a tenable
reading of the rule. Subsection (3) lists
five circumstances that make a deposition
admissible as substantive evidence. These
are separated by the word "or";
satisfying any one of the subsections
thus is enough. Subsection (3)(B) says
that a deposition is admissible if "the
witness is at a greater distance than 100
miles from the place of trial or hearing
. . . unless it appears that the absence
of the witness was procured by the party
offering the deposition". The party
offering the deposition is forbidden to
procure the deponent’s absence (or
distance); this is a far cry from
requiring the litigant to procure the
deponent’s presence. It is the United
States that by holding Chong-Won Tai
captive has placed him outside the 100-
mile radius from the court. The United
States readily could have produced him in
Chicago if it wanted to cross-examine him
in the judge’s presence. It does not sit
well for the United States to chastise
Ueland for employing a deposition rather
than live testimony.

  True enough, if Ueland had relied
exclusively on Rule 32(a)(3)(C)--which
allows use of a deposition if "the
witness is unable to attend or testify
because of age, illness, infirmity, or
imprisonment"--then imprisonment alone
would not have sufficed. Only if
imprisonment makes the witness "unable"
to attend does subsection (3)(C)
authorize the deposition’s use. If the
deponent had been in the Metropolitan
Correctional Center a few blocks from the
courthouse, Ueland should have asked the
United States to produce him. In this
respect subsections (3)(C) and (3)(D) are
similar; both depend on unavailability.
Subsection (3)(B), by contrast, does not
condition admissibility on the witness’
inability to show up in court; 100 miles
is a bright line. Chong-Won Tai was
located outside that line and the United
States does not contend that Ueland
"procured" his absence, so Ueland was
entitled to use the deposition as
substantive evidence.

  The United States Attorney principally
relies on Polys v. Trans-Colorado
Airlines, Inc., 941 F.2d 1404, 1410 (10th
Cir. 1991), which states that a court is
"not automatically required to admit the
deposition testimonies under Federal Rule
of Civil Procedure 32(a)(3)(B) just
because the witnesses were more than 100
miles away". That language has been
quoted out of context. The district court
excluded some proffered evidence, and the
proponent did not make an offer of proof.
Thus the decision was reviewable only for
plain error. Fed. R. Evid. 103(a)(2),
(d). The court’s point was that Rule
32(a) does not work "automatically" in
the sense that it relieves lawyers of
their obligation to make an offer of
proof. That’s not a problem in our case.
The tenth circuit added that Rule 32(a)
does not prevent a judge from excluding
evidence on grounds other than the
hearsay rule, such as surprise to
opposing counsel. Again that’s not a
problem; the district judge relied
exclusively on his belief that the
deposition was hearsay. (Chong-Won Tai
was on Ueland’s witness list, and as his
custodian the United States knew full
well that he would not be in court and
therefore would be testifying by
deposition.) Polys does not stand for the
proposition for which the United States
Attorney used it: that the proponent must
try and fail to procure live testimony
before offering a deposition under Rule
32(a)(3)(B). Nor does any other appellate
decision support that view, and at least
one rejects it. See Daigle v. Maine
Medical Center, Inc., 14 F.3d 684, 691
(1st Cir. 1994). We are the second. As is
true for many legal points, the paucity
of support in appellate opinions does
more to show that the proposition is too
clear to be questioned than to show that
it is debatable.

  Because this case must be tried anew, we
discuss briefly some issues that have
been covered in the appellate briefs and
are apt to arise again on remand.

  Ueland’s principal "medical" testimony
came from Jason Wilson, a college dropout
who claims to be a chiropractor with a
practice limited to acupuncture. Wilson
is not an osteopath, and the United
States questioned his qualifications to
give expert testimony about the etiology
of back and neck injuries. See Fed. R.
Evid. 702; Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579
(1993); Kumho Tire Co. v. Carmichael, 526
U.S. 137 (1999) (Rule 702 applies to non-
scientific expert evidence). The district
judge refused to apply Rule 702 or
conduct a Daubert inquiry, ruling instead
that Wilson’s lack of credentials and
experience concerns only the weight to be
accorded to his testimony. That ruling is
wrong. On remand, a Daubert inquiry must
be conducted, and Wilson’s testimony may
be received only if he is "qualified as
an expert by knowledge, skill,
experience, training, or education . . .
[and] (1) the testimony is based upon
sufficient facts or data, (2) the
testimony is the product of reliable
principles and methods, and (3) the
witness has applied the principles and
methods reliably to the facts of the
case." Fed. R. Evid. 702.

  The trial encountered a related problem
about expertise. The Assistant United
States Attorney asked questions of
Wilson, Dr. Reed, and Ueland himself
designed to show that Ueland’s back
problem predated the collision. This
subject was relevant, because the
questions tended to undermine Ueland’s
claim of causation, an essential
ingredient of a tort. See Voykin v.
Estate of DeBoer, 192 Ill. 2d 49, 57, 733
N.E.2d 1275, 1279 (2000). (The
substantive rules in this ftca case come
from Illinois law. See 28 U.S.C. sec.sec.
1346(b)(1), 2674.) But the questioning
did not begin with a demonstration that
each witness was well situated to deliver
a reliable opinion on the matter. Ueland
could be asked to describe his symptoms;
a first-party, factual narration does not
depend on expertise. But, Ueland
contended at trial, neither Wilson nor
Reed could be asked about this subject
without first qualifying as an expert.
Once again the district judge brushed
aside the objection, opining that it
concerned only the weight of the
evidence; once again this entailed an
error that should not be repeated on
remand.

  Ueland attributes the expertise
requirement to Voykin, which says that
expert testimony about the nature and
consequence of the prior injury is
essential to "relevance." That’s poor
diction. Evidence is relevant if it
possesses "any tendency to make the
existence of any fact that is of
consequence to the determination of the
action more probable or less probable
than it would be without the evidence."
Fed. R. Evid. 401. Evidence that the
plaintiff’s injury predated the supposed
tort has such a tendency. It is not as if
Illinois wanted to exclude a particular
line of exculpation and thus affect
primary conduct--as, for example, a rule
banning reference to seatbelt non-use
tends to do; see Barron v. Ford Motor
Co., 965 F.2d 195 (7th Cir. 1992). The
problem here concerns not relevance but
reliability, which is the domain of forum
law. Rule 702 covers this ground and
makes Voykin, well, irrelevant (and
unnecessary too). Neither Wilson nor Reed
had any personal knowledge of Ueland’s
medical condition before the collision;
neither began to treat him until some
time afterward. Their testimony about
Ueland’s medical condition before the
collision was admissible only if based on
sufficient facts, analyzed using
medically appropriate methods by a person
competent to give an opinion.
Acupuncturist Wilson probably flunks this
test (though the district judge is free
to inquire further on remand); physician
Reed may or may not pass, depending on
what evidence he gathered and whether his
fields of expertise include back and
soft-tissue injuries.

  One other dispute related to Reed may
crop up on remand. Before trial, Ueland’s
lawyers repeatedly conferred with Dr.
Reed, in apparent violation of 28 C.F.R.
sec.sec. 16.21-16.29, which provide that
private litigants and their lawyers may
contact federal employees only under
defined circumstances--principally
through discovery depositions, when a
lawyer for the United States will be
present, though affidavits and other
means are available too. An Assistant
United States Attorney informed Dr. Reed
of these rules, and he ceased talking
with Ueland’s lawyers, who then applied
for relief from the district court.
Ueland made two contentions: first, that
his lawyers should be allowed
unrestricted confidential access to Reed;
second, that the United States should be
precluded from eliciting any testimony
from Reed at trial, as a sanction for its
supposed ex parte contacts with him.

  In response to the first argument, the
Assistant United States Attorney filed a
memorandum discussing the regulations
that govern the means of obtaining
information from federal employees. The
district judge refused to read this
memorandum or listen to argument on the
subject. Instead he peremptorily
announced that, because the Supreme Court
had required President Nixon to provide
evidence, see United States v. Nixon, 418
U.S. 683 (1974), no limits may be placed
on private lawyers’ contacts with federal
employees. We have no idea how the Nixon
case could be thought to support that
proposition. It dealt with a grand jury
subpoena for documents, not with secret
meetings designed to elicit oral
admissions. (Ueland contended at trial
that any helpful information Reed
provided, in or out of court, was
admissible under Fed. R. Evid. 801(d)(2)
as an admission by a party opponent.)
District judges must implement federal
regulations, no less than federal
statutes, and we have held that sec.sec.
16.21-16.29 are valid. See Edwards v.
Department of Justice, 43 F.3d 312, 317
(7th Cir. 1994). Access to federal
employees who may have evidence remains
available through the normal discovery
process. (The United States produced Reed
for a deposition and again at trial.)
Similarly, 5 C.F.R. sec.2635.805 defines
the circumstances under which a federal
employee such as Dr. Reed may be an
expert witness as opposed to a fact
witness on Ueland’s behalf. The district
court, which failed to apply this
regulation during the first trial, must
do so on remand.

  Because it was Ueland’s counsel, rather
than the Assistant United States
Attorney, who erred in speaking off the
record with Reed, there is no basis for
preventing the United States from
eliciting testimony from him at a second
trial. Ueland relies on Petrillo v.
Syntex Laboratories, Inc., 148 Ill. App.
3d 581, 499 N.E.2d 952 (1st Dist. 1986),
for the proposition that a litigant may
not meet in private with the other side’s
treating physician. We doubt that
Petrillo had in mind a situation where
the plaintiff’s physician is the
defendant’s employee (in Petrillo there
was no affiliation between the physician
and the adverse party). How could a court
demand that the Bureau of Prisons have no
contact with its staff physicians, or
even that federal lawyers not talk with
federal physicians (who may be needed as
witnesses in many cases pending
simultaneously)? Intoning "physician-
patient privilege" gets Ueland nowhere:
the Bureau of Prisons is entitled to up-
to-date medical information about persons
in its custody--indeed is
constitutionally obliged to obtain that
information, in order to prevent the
infliction of cruel and unusual
punishment--so it is entirely legitimate
for Dr. Reed to tell both prison
administrators and federal lawyers what
he knows about Ueland’s condition. No
rule of state law could block the
national government from obtaining
medical information from a federal
prison’s staff physician; the Supremacy
Clause makes state law subordinate to
federal, not the reverse. (The rule
articulated in Petrillo is not designed
to alter primary conduct, so it is not
absorbed into federal law by sec.1346(b)
or sec.2674.) This is not to say that the
federal government could gratuitously
reveal a prisoner’s medical information
to third parties; Ueland may have some
privilege with respect to particular uses
of information. But he does not contend
that counsel has wrongfully revealed any
medical information learned from Reed.
Instead Ueland makes a categorical
argument: that a lawyer representing the
United States may not meet at all, for
any purpose, with a federal employee who
has provided medical care to that
prisoner. That proposition has no support
in either state or federal law.

  The judgment is reversed, and the case
is remanded for further proceedings
consistent with this opinion. Circuit
Rule 36 applies automatically on remand.
