In Re: Dole Food Co., Inc., Stockholder Litigation, Cons., CA. No. 8703-VCL (Del. Ch. Feb. 27, 2015). This Delaware Court of Chancery opinion concluded after careful reasoning that in order to serve as an expert witness, one must have a body and a brain and, therefore, a corporation as an entity cannot serve as an expert. This opinion provides a useful review of the rules of evidence that require a human being to serve as a witness, and the truism that a corporation can only act through its agents, but a witness cannot act through an agent, or if stated differently, a witness cannot testify through a proxy. For example, due to its incorporeal nature, a corporation cannot satisfy the statutory requirement that a person take an oath “with uplifted hand.”
The court described the corporation as being a purely metaphysical creature, despite other contexts in which the law “appropriately personifies corporations.” In this context the net result is that the expert witness who was an agent of the corporation was entitled to testify on its own behalf.
My initial reaction is that this holding is not necessarily inconsistent with the recent Supreme Court decision in Hobby Lobby, and related observations by legal experts such as Professor Bainbridge who have observed that based on the “reverse veil piercing theory”, and other theories, an entity controlled by a natural person may be considered to be acting through that entity for purposes of expressing or complying with individual religious beliefs.
This decision is a small aspect of a consolidated case now in the middle of trial on both appraisal and fiduciary claims in connection with a going private transaction involving Dole.