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Case 1:15-cv-07433-LAP Document 1331-7 Filed 01/05/24 Page 5 of 21 Epstein will invoke the Fifth Amendment, if permitted by this Court, does not constitute exceptional circumstances that would permit use of his deposition at trial. /d. Likewise, Mr. Rizzo, who lives in North Salem, New York, was served with a deposition subpoena in New York, and his deposition was conducted in New York, all within 100 miles of the courthouse. See Menninger Decl. Ex. A 2:2-4:18 (Rizzo Dep.) There is no basis to claim that either of these witnesses cannot be procured for trial through subpoena, nor is there any indication that Plaintiff has unsuccessfully attempted to issue such subpoenas. Having failed to establish the essential element of unavailability, Mr. Epstein and Mr. Rizzo’s depositions cannot be used affirmatively as evidence at trial and all such testimony is hearsay — an out of court statement offered for the truth of the matter — to which no exception or exclusion applies under Federal Rules of Evidence 804(a) and (b)(1). B. As a Retained Expert, Phillip Esplin Cannot Be Deemed Unavailable Phillip Esplin is a rebuttal expert, retained by the Defendant in rebuttal of the improper credibility opinions offered by Plaintiffs experts Dr. Gilbert Kliman and Professor Terry Coonan, both of which are subject to pending motions in limine. Plaintiff has attempted to designate portions of Dr. Esplin’s deposition for use in her case in chief. All of the proposed testimony concerns matters which were outside of the scope of Dr. Esplin’s opinion, as discussed in more detail below. As a preliminary matter, however, the attempt to introduce the deposition testimony of Dr. Esplin is improper under Second Circuit law because, as an expert, he is not deemed unavailable simply because he resides outside of the 100-mile radius of the courthouse. Rather, in the Second Circuit, to use the deposition or other sworn testimony of an expert based on alleged unavailability of that expert, the Plaintiff must prove that 1) she attempted to secure the voluntary attendance of the witness, and 2) that no similar expert is available.