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EXHIBIT Y Case 1:11-cv-24599-MGC Document 55-30 Entered on FLSD Docket 04/16/2012 Page 1 of 8
EXHIBIT Y Case 1:11-cv-24599-MGC Document 55-30 Entered on FLSD Docket 04/16/2012 Page 1 of 8
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Dr. FARITH RICARDO SIMON AFFIDAVIT
My name is Farith Ricardo Campaña. I am an Ecuadorian national and a lawyer, and my
present occupation is that of university professor.
BACKGROUND AND PROFESSIONAL QUALIFICATIONS OF THE DEPONENT
1. I have the following degrees: B.S. in Legal Sciences, Lawyer in the Tribunals and Courts
of the Republic (March, 30,, 1995) and PhD in Case Law from the Pontificia Universidad
Católica de Ecuador. I completed Masters Degree studies at the Universidad
Internacional de Andalucía, Spain, and I am currently pursuing a doctorate in New
Trends in Civil Law at the Universidad de Salamanca, Spain.
2. I am Assistant Dean of the Case Law Association at the Universidad San Francisco de
Quito; Co‐Director the Law Clinic; Professor in the Chair of Regulations Theory, Legal
Topics, Family Law, and Oral Litigation.
PETITIONER FOR PROFESSIONAL STATEMENT
3. I present this report at the request of the lawyers that represent María Aguinda and
others in the lawsuit against Chevron/Texaco.
PROFESSIONAL OPINION
FIRST QUESTION: IS THERE ANY PROVISION IN ECUADORIAN LAW PROHIBITING ONE
OF THE PARTIES IN A CIVIL SUIT FROM MEETING A PERSON, BEFORE HE IS
APPOINTED EXPERT IN A TRIAL, WITHOUT THE PRESENCE OF THE OTHER PARTY?
4. In Ecuador there are no regulations that prohibit one party in a civil suit from meeting
with a person before this person is appointed expert in the lawsuit that is taking place.
5. While the regulations relating to witnesses in a civil suit are not applicable to experts,
these could be used as reference to determine the circumstances that led Ecuador to
consider a witness as “incompetent” due to lack of impartiality. However in this case,
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there are no dispositions that discredit a witness for having had previous contact with
the parties involved.1
6. In the cases in which the legislature sought to establish a prohibition upon the parties,
it has been expressly determined as such. Examples of these are the provisions of the
Organic Code of Judicial Function (law published in the Supplement to Official Gazette
No. 544 of March 9, 2009) which prohibits the judge from, "accepting the visit of or
meeting with one of the parties or his counsel without first notifying the other”2,
judicial officials, from “accepting a visit from or meeting with one of the parties or his
counsel concerning a case under process, without having previously notified the other
through the Judiciary Secretariat, no less than forty‐eight hours in advance” 3; and,
attorneys, from “meeting with the judge to address issues inherent to the case they
are defending, without due prior notice to the other party or his counsel so that they
may be present if they so wish”4.
SECOND QUESTION: IS THERE ANY PROVISION IN ECUADORIAN LAW PROHIBITING ONE
OF THE PARTIES IN A CIVIL SUIT FROM MEETING THE EXPERT APPOINTED TO HIS CASE,
TO DISCUSS A WORK PLAN OR ORGANIZE THE WAY THE STUDIES OR THE
INVESTIGATIONS WILL BE CONDUCTED TO COMPLY WITH THE DUTIES ASSIGNED TO HIM
IN THE TRIAL, WITHOUT THE PRESENCE OF THE OTHER PARTY?
7. In Ecuador there are no regulations that prohibit or prevent the parties from meeting
with an expert appointed in a civil trial, to plan the work that will be carried out, to
seek or obtain the information required to prepare his report. Experts should conduct
their work while respecting the criteria of "truth, rigor and impartiality”5. obtaining ...
“the necessary means for their investigation”6.
1 Article 216 of the Code of Civil Procedures states that "Due to lack of impartiality the following are not competent witnesses:
ancestors for their descendants, and vice versa; relatives for their relatives within the fourth degree of consanguinity or second
degree of affinity; between godparents, godparents for the godchild or vice versa; spouses or partners in de facto unions for
each other; the interested party in the case or a similar case, the dependent for the person he depends on or who supports him;
the enemy or close friend of either party; the lawyer for the client, the attorney for the principal, or vice versa, the tutor or
guardian for his ward, or vice versa, the donor and the recipient, neither for the other, and the partner for his co‐partner or the
company.
2 Article 128.12 of the Organic Code of Judicial Function.
3 Article attached as evidence
4 Article 335.8 of the Organic Code of Judicial Function
5 Teresa Armenta, Lessons of Civil Procedural Law, Marcial Pons, fourth edition, Madrid, 2009,
page 178.
6 De Santo Victor, Expert Evidence, Editorial Universidad, Buenos Aires, 1997, page 113. In the same sense, Hernando Devis
Echandia , General Theory of Judicial Evidence, Volume II, Temis, Bogota, 2006, page 365.
[initials]
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8. In the rules on civil procedure applicable to the subject matter there are no provisions
that prevent or prohibit the expert from coordinating the execution of their work with
any of the parties. This is not considered a fault or a violation of his oath to “faithfully
and legally" perform his duties.7
9. The doctrine agrees that, "There is an actual procedural burden for the parties, to
make it easier for the experts to conduct their studies….,”8 The most recent doctrine
on the subject considers that maintaining contact with the parties is key to the work of
experts; in this sense Beltran David Johnston says:
“From his standpoint of independence and impartiality, the expert should not have
any reservation in interacting with all participants in the process to achieve the
ultimate goal of his mission: to provide the best opinions9.”
10. In these terms I have made my professional statement contained in this report, which
was prepared to the best of my faithful knowledge and belief.
11. I declare under penalty of perjury under the laws of the Republic of Ecuador, the
United States of America, the laws of the States of California, Alabama, Alaska,
Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada., New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and
Wyoming, and the laws of the District Columbia, and the laws of any applicable
jurisdiction, that the foregoing is true and correct and that this Declaration was
executed on February 16, 2011, in Quito, Ecuador.
[signature]
Dr. Farith Simon Campaña
7 Article 256 of the Code of Civil Procedures 8 Devis Echandia Hernando, General Theory of Judicial Evidence, Volume II, Temis, Bogota, 2006, page 365.
9 Jurado Beltrán David, Expert evidence, Editorial Bosch, Barcelona, 2010, page 44.
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