City of Wilmington, Delaware v. United States ( 2021 )

In the United States Court of Federal Claims
No. 16-1691C
(Filed: March 4, 2021)
)
CITY OF WILMINGTON, )
DELAWARE, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
ORDER
SOLOMSON, Judge.
This case involves a long-running legal controversy between Plaintiff, City of
Wilmington (“Wilmington”), and Defendant, the United States, concerning five
properties (the “properties”) that the United States Army Corps of Engineers maintains
in Wilmington, Delaware. ECF No. 1 (“Compl.”) at 1–2. From 2011 through 2016,
Wilmington assessed water pollution service charges on those properties, but the
government thus far has refused to pay these fees. Id. at 1–2, 6. On December 22, 2016,
Wilmington filed its complaint against the government, seeking to recover “the
payment of reasonable service charges” assessed for “the control and abatement of
water pollution” pursuant to the Clean Water Act,1 as amended by the Federal
Responsibility to Pay for Stormwater Programs Act of 2011, Pub. L. No. 111-378, 124
Stat. 4128, codified at 33 U.S.C. § 1323.2 Compl. at 1–3.
1 33 U.S.C. §§ 1251 et seq.
2 This case originally was assigned to Judge Williams, ECF No. 2, but, on February 5, 2020, was
transferred to the undersigned Judge. ECF No. 73.
The parties have concluded discovery; trial is presently scheduled for April 2021.
ECF No. 89.3 Pending before the Court is Defendant’s motion in limine to exclude
testimony from Plaintiff’s expert witness, Hector J. Cyre. ECF No. 68 (“Def. Mot.”).
Also pending before the Court is Plaintiff’s motion in limine (1) to preclude Defendant
from asserting certain arguments, (2) to exclude the testimony of Defendant’s expert
witness, Dr. Neil S. Grigg, and (3) to exclude several of its fact witnesses, including
Robert Moore, Heather Sachs, and Daniel Kelly, from testifying. ECF No. 69 (“Pl.
Mot.”). The parties filed their respective response briefs, ECF Nos. 77 (“Pl. Resp.”), 78
(“Def. Resp.”), and the Court held oral argument on February 16, 2021. Minute Order
(Feb. 8, 2021).
Pursuant to Rule 16 of the Court of Federal Claims (“RCFC”), this Court is
authorized, among other things, to “consider and take appropriate action . . . [for]
avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony
under Federal Rule of Evidence 702.” RCFC 16(c)(2)(D); see Magnus Pac. Corp. v. United
States, 2016 WL 3960447, *9 (Fed. Cl. July 21, 2016) (“There is no question under RCFC
16, that this court, as a trial court, has the power to issue pretrial orders simplifying
issues for trial.” (modifications omitted)). A motion in limine “‘enables a court to rule in
advance on the admissibility of documentary or testimonial evidence and thus expedite
and render efficient a subsequent trial.’” Norman v. United States, 56 Fed. Cl. 255, 267
(2003) (quoting Weeks Dredging & Contracting, Inc. v. United States, 11 Cl. Ct. 37, 45
(1986)). “[W]hen disposing of such motions, this court enjoys broad discretion.”
Sikorsky Aircraft Corp. v. United States, 102 Fed. Cl. 38, 49 (2011) (citing Sundance, Inc. v.
DeMonte Fabricating Ltd., 550 F.3d 1356, 1360–61 (Fed. Cir. 2008)). Notably, given that
this Court only conducts bench trials, we have “even greater discretion” to deny a
motion in limine because “’there is no concern for juror confusion or potential
prejudice.’” RMH Tech LLC v. PMC Indus., Inc., 2018 WL 5095676, *3 (D. Conn. Oct. 19,
2018) (quoting Tiffany (NJ) Inc. v. eBay, Inc., 576 F. Supp. 2d 457, 457 n.1 (S.D.N.Y 2007));
Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002) (noting that
“concerns [about juror confusion] are of lesser import in a bench trial”); United States v.
Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the gatekeeper to
keep the gate when the gatekeeper is keeping the gate only for himself.”).
For the reasons explained below, the Court DENIES both the government’s
motion in limine and Plaintiff’s motion in limine.
3
The parties filed their respective pre-trial memorandum of contentions of fact and law. ECF
Nos. 60 (“Pl. Memo”), 64 (“Def. Memo.”). The parties subsequently moved for leave of the
Court to file responses to those memoranda. ECF Nos. 65, 67. Both motions hereby are
GRANTED.
-2-
I. Defendant’s Motion In Limine
The government argues in its motion in limine that the Court should exclude the
expert testimony of Hector J. Cyre, president of Water Resource Associates, Inc.,
pursuant to Federal Rule of Evidence 702. Def. Mot. at 1. Wilmington intends to have
Mr. Cyre testify as an expert witness at trial that Wilmington’s rate methodology for
calculating stormwater charges is consistent with generally accepted industry
standards. Id. at 7–9. According to the government, Mr. Cyre’s testimony is not
relevant to the fact-specific determination as to whether the actual charges imposed by
Wilmington on the properties are “reasonable.” Id. The government further contends
that his testimony is not useful for determining whether Wilmington’s practice of
estimating the stormwater charges for non-residential properties is appropriately
“based on some fair approximation of the proportionate contribution of the property”
within the meaning of 33 U.S.C. § 1323(c). Id. at 9–11.
“In general, Rule 702 is viewed as requiring the trial judge to ensure that
proffered expert testimony is both reliable and relevant.” Murfam Farms, LLC v. United
States, 2008 WL 4725468, *1 (Fed. Cl. Sept. 19, 2008). Relevant evidence is that which
“will help the trier of fact to understand the evidence or to determine a fact in issue”
and “is based on sufficient facts or data.” Fed. R. Evid. 702. While “the trial court acts
as a ‘gatekeeper’ to exclude expert testimony that is irrelevant,” Micro Chem., Inc. v.
Lextron, Inc., 317 F.3d 1387, 1391 (Fed. Cir. 2003), “doubts regarding whether an expert’s
testimony will be useful should generally be resolved in favor of admissibility.” Clark v.
Heldrick, 150 F.3d 912, 915 (8th Cir. 1998) (internal quotation marks omitted). Simply
put, “an expert’s opinion should be excluded only if it is so fundamentally unsupported
that it can offer no assistance to the jury.” Wing Enters., Inc. v. Tricam Indus., Inc., 829 F.
App’x 508, 512 (Fed. Cir. 2020) (internal quotation marks omitted). Of course, as noted
above, in a bench trial such concerns are greatly attenuated. See Seaboard Lumber Co.,
308 F.3d at 1302; Brown, 415 F.3d at 1268–69; RMH Tech LLC, 2018 WL 5095676 at *3.
The Court finds that, at least at this stage, Mr. Cyre’s proffered testimony is
sufficiently reliable and relevant to be admitted. In that regard, the government does
not contend that his opinion is unsupported by fact or data. See Def. Mot. at 7–10.
Moreover, the Court agrees that Mr. Cyre’s testimony may prove “relevant to helping
the trier of fact assess whether the stormwater charges . . . are normal, customary, fair
and/or moderate.” Pl. Resp. at 19. Thus, at this pre-trial stage, the Court cannot
conclude that Mr. Cyre’s testimony is definitively irrelevant to the statutory question
that will be addressed at trial. See, e.g., Wing Enters., 829 F. App’x at 513–14 (holding
that expert testimony about industry standards can be relevant “even though the
testimony did not address the exact facts at hand but instead provided a more general
explanation”). On the other hand, the government’s concerns may (and will likely) be
-3-
raised at trial to critique the usefulness of Mr. Cyre’s testimony, “but the same concerns
do not adequately convince this Court that the testimony should be excluded.” David
Boland, Inc. v. United States, 2020 WL 5641873, *2 (Fed. Cl. Sept. 22, 2020). The
government’s motion in limine is DENIED, accordingly.
II. Plaintiff’s Motion In Limine
A. Plaintiff’s Motion To Preclude Certain Arguments Made By
Defendant
Wilmington contends in its motion in limine that the government should be
precluded from arguing that: (1) the properties contain wetlands; (2) the properties
qualify for stormwater credits; (3) the stormwater charges are discriminatory; and
(4) the government assessed the reasonableness of the stormwater charges prior to the
filing of Wilmington’s complaint. Pl. Mot. at 1.
1. “Properties Contain Wetlands” Argument
Wilmington offers three arguments in support of its position that the
government should not be permitted to argue that the properties at issue include
wetlands, and that the assessed charges thus should be mitigated. Pl. Mot. at 2–10. The
Court is not persuaded.
First, Wilmington asserts that the government should be judicially estopped from
presenting evidence that the properties contain wetlands because when the government
applied to the Delaware Department of Natural Resources and Environmental Control
for a Water Quality Certification in 2007 (and, again, in 2010 and 2011), the government
“did not check the boxes in the application denoting the presence of wetlands on the
Properties.” Pl. Mot. at 3. The doctrine of judicial estoppel is intended to prevent a
litigant from “playing fast and loose with the courts” by assuming contrary positions in
legal proceedings, Def. Tech., Inc. v. United States, 99 Fed. Cl. 103, 127 (2011); see Housing
Auth. of Slidell v. United States, 149 Fed. Cl. 614, 643 (2020), and applies “just as much
when one of the tribunals is an administrative agency.” Trustees in Bankr. of N. Am.
Rubber Thread Co., Inc. v. United States, 593 F.3d 1346, 1354 (Fed. Cir. 2010). The
government counters, however, that there is no inconsistency in its positions because
the two proceedings address distinct issues. Def. Resp. at 3–8. The government
convincingly explains that the Water Quality Certification application sought to
ascertain whether the properties are “wetlands,” as that legal term is used by federal
and state regulations. Id. In contrast, the evidence that the government wants to
present at trial concerns the physical character of the properties in producing
stormwater run-off for purposes of assessing the reasonableness of the stormwater
-4-
charges. Id. As judicial estoppel is applied only when a party’s positions are “mutually
exclusive and directly inconsistent[,]” Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367, 1379
(Fed. Cir. 2020) (internal quotation marks omitted), the government may argue in this
proceeding that its properties are wetlands for the purposes of defending against the
stormwater charges to which Wilmington claims entitlement.
Furthermore, the representations that the government made in the Water Quality
Certification application cannot give rise to judicial estoppel. Only when the statements
made in the earlier proceeding involve the “truth-seeking function of the court” (or
administrative tribunal) does judicial estoppel apply. Egenera, Inc., 972 F.3d at 1379–80
(citation omitted). Simply put, judicial estoppel only applies to legal proceedings that
are “’adjudicatory in nature.’” Mony Life Ins. Co. of Amer. v. Loiza Dev. S.E., 2006 WL
8450729, *1 (D.P.R. Oct. 31, 2006) (quoting United States v. Levasseur, 846 F.2d 786, 792–93
(1st Cir. 1988)). For example, judicial estoppel does not preclude individuals from
contradicting sworn statements made in a tax return. Kaiser v. Bowlen, 455 F.3d 1197,
1204 (10th Cir. 2006); see Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 715 n.2 (3rd Cir. 2001)
(“[W]e know of no basis for crafting a theory of estoppel based upon sworn statements
in a tax return . . . .”).
Wilmington relies on a decision of our appellate court, the United States Court of
Appeals for the Federal Circuit, in Lampi, LLC v. American Power Products, Inc., 228 F.3d
1365 (Fed. Cir. 2000), for the proposition that judicial estoppel does apply to statements
made in an application submitted to a government agency. Pl. Mot. at 4–5. In Lampi,
the Federal Circuit held that judicial estoppel could be enforced based upon statements
made in a trademark application in proceedings before the Patent and Trademark
Office (“PTO”). 228 F.3d at 1377. Wilmington’s reliance upon Lampi misses the mark.
Statements made in a trademark application are subject to substantive analysis by an
examiner and may be rejected, and thus this application process is similar to an
adjudicatory proceeding. See 37 C.F.R. §§ 2.61–2.63. In Lampi, the PTO examiner twice
rejected the trademark application; the company obtained a trademark only after the
company made certain representations to the PTO examiner following the rejections.
See Lampi, LLC v. Am. Power Prods., Inc., 65 F. Supp. 2d 757, 776 (N.D. Ill. 1999). Thus,
judicial estoppel properly could preclude the company from contradicting its earlier
representations upon which the PTO examiner relied in issuing the trademark. This
distinction is further confirmed in the Federal Circuit’s recent decision in Egenera, Inc. v.
Cisco Systems, Inc., in which that court held that statements made in a petition for the
correction of a named inventor in a patent, see 35 U.S.C. § 256, are not grounds for
judicial estoppel because “[n]o substantive examination occurs, and the PTO does not
consider the substantive adequacy of the petition.” 972 F.3d at 1380–81 (citing 37 C.F.R.
§ 1.324(b)). Here, Wilmington has provided no facts even suggesting that the Water
-5-
Quality Certification application is subject to a substantive examination or proceedings
of the type that would support a judicial estoppel claim. See Pl. Mot. at 3, 6.
Second, Wilmington contends that pursuant to the doctrine of exhaustion, the
government should be precluded from arguing that the properties contain wetlands
because the government did not utilize Wilmington’s administrative appeal process to
seek lower stormwater charges. Pl. Mot. at 6–9. This, however, is not the first time that
Wilmington has made this argument. Indeed, Judge Williams, who previously
presided over this case, rejected that very same argument in her ruling on the parties’
motions for partial judgment on the pleadings in March 2018. City of Wilmington v.
United States, 136 Fed. Cl. 628, 633 (2018) (ECF No. 28 at 5–6). Judge Williams
specifically held that the Wilmington City Code does not require a landowner,
including the government, to pursue an administrative appeal; nor would an appeal
have provided the government with relief because “the Wilmington City Code only
grants prospective relief and does not permit parties to appeal fees that have already
been assessed.” Id. Wilmington does not dispute that essential conclusion.
To the extent that Wilmington seeks to re-litigate that determination, it should
have filed a motion for reconsideration consistent with RCFC 59(b), not a motion in
limine. “Motions in limine are meant to deal with discrete evidentiary issues related to
trial, and are not another excuse to file dispositive motions disguised as motions in
limine.” Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D.
Mich. 2009) (brackets and citation omitted)); see also Barnes v. Dist. of Columbia, 924
F. Supp. 2d 74, 81–82 (D.D.C. 2013) (denying motion in limine used “as a backdoor
motion to reconsider”).
Moreover, “a reassignment to another judge should not be viewed as declaring
open season on relitigating any prior rulings with which the party disagrees.” Applegate
v. United States, 52 Fed. Cl. 751, 765–66 (2002) (citing Best v. Shell Oil Co., 107 F.3d 544,
546 (7th Cir. 1997)), aff'd, 70 F. App'x 582 (Fed. Cir. 2003). Indeed, the “law of the case”
doctrine counsels against “relitigat[ing] matters already adjudicated absent some
indication of extraordinary circumstances.” Applegate, 52 Fed. Cl. at 765. Judge
Williams carefully considered and rejected Plaintiff’s exhaustion argument, see City of
Wilmington, 136 Fed. Cl. at 633, and Wilmington does not suggest a compelling reason
to revisit her conclusions. In any event, even if the undersigned were to reconsider
Judge Williams’ earlier decision, the outcome in all likelihood would be the same. The
parties are free to argue about how to properly interpret and apply the statutory
provisions at issue, but the Court will not revisit that question before trial to exclude
particular arguments or testimony.
-6-
Third, Wilmington argues that the government failed to disclose in its
interrogatory responses that it intended to raise factual issues at trial regarding the
properties’ wetland status. Pl. Mot. at 9–10. Wilmington contends that it learned of this
defense for the first time in Dr. Grigg’s expert report which was shared with
Wilmington only after the close of fact discovery. Id. Wilmington accordingly seeks to
have this Court impose a discovery sanction pursuant to RCFC 37, prohibiting the
government from relying upon such facts or testimony during trial. Id. at 10 (citing
RCFC 37(c)(1)). Wilmington acknowledges in its motion, however, that the government
responded, in its answer to the relevant interrogatory, that the government “would
provide its [complete] response when expert disclosures were due.” Id. at 9. (emphasis
added). Wilmington thus was on notice that the government could not identify all
possible defenses until Dr. Grigg submitted his expert report.
To the extent Wilmington was unsatisfied by the government’s interrogatory
response, Wilmington should have filed a timely motion pursuant to RCFC 37 to
compel discovery. Wilmington should not have waited until nearly the eve of trial to
seek exclusion of the government’s evidence.4 A motion in limine is not to be used “as a
substitute for motions to compel discovery or for discovery sanctions that should have
been brought earlier.” Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F. Supp. 2d
1093, 1094 (C.D. Cal. 2012); see McCon v. Perez, 2018 WL 4006971, *1 (S.D. Miss. Aug. 20,
2018) (denying a motion in limine seeking Rule 37(c) relief). In the absence of a timely
motion to compel, this Court will not preclude the government from presenting
evidence that the properties contain wetlands and, accordingly, the Court DENIES
Wilmington’s motion to exclude this argument.
2. “Properties Qualify For Stormwater Credits” Argument
Wilmington additionally contends that the government should be precluded,
pursuant to the doctrine of exhaustion, from asserting that the properties are eligible for
stormwater credits. Pl. Mot. at 11. In Wilmington’s view, the government’s failure to
apply for stormwater credits through the city’s stormwater credit application process
forecloses the government’s argument. Id. For the same reasons the Court rejected
Wilmington’s exhaustion argument above, see supra Sec. II.A.1, the Court DENIES the
motion to exclude this argument, as well.
4Wilmington did previously file a motion to compel discovery pertaining to other matters in
this case, ECF Nos. 36, 37, which, on January 3, 2019, Judge Williams granted. See City of
Wilmington v. United States, 141 Fed. Cl. 558 (2019) (ECF No. 45).
-7-
3. “Stormwater Charges Are Discriminatory” Argument
Wilmington further argues that the government for the first time in Dr. Grigg’s
expert report contends that the city’s stormwater charges are “discriminatory” as that
term is used in 33 U.S.C. § 1323(c). Pl. Mot. at 11–13. Wilmington, again, seeks to have
this Court preclude the government from raising such arguments at trial pursuant to
RCFC 37. Id. Aside from this Court’s reluctance to apply RCFC 37 sanctions at this
stage, see supra Sec. II.A.1, the government in any event represents that it does not
intend to argue that the charges are “discriminatory” in the manner that Wilmington
assumes. Def. Resp. at 9–12. The government explains in its response, and further
clarified this point during oral argument, that it is challenging the fairness of the
stormwater charges generally. Id. The government does not intend to argue that the
charges are “discriminatory” in that sense that Wilmington is targeting federal
properties for unfair treatment. Id. Rather, the government intends to present evidence
to support its view that the service charges associated with certain property
classifications do not accurately reflect the relative benefits from the stormwater
management program and contributions to stormwater run-off. Id. Accordingly, the
Court DENIES the motion to exclude this argument as moot.
4. “Attorney-Client Privilege Documents” Argument
“Out of an abundance of caution,” Wilmington asserts in its motion in limine that
the government should be precluded from using any materials demonstrating or
supporting the government’s contemporaneous assessment that the stormwater charges
were unreasonable. Pl. Mot. at 13–16. This is because, according to Wilmington, the
government previously shielded those documents from Wilmington during discovery
by invoking attorney-client privilege. Id. While the Court is unsure whether or how the
government’s contemporaneous assessment is relevant to the Court’s de novo review of
Wilmington’s claim for payment pursuant to the statute at issue, the Court cannot
conclude at this stage that the government’s views at the time it declined to pay
Wilmington’s charges are irrelevant. In any event, the government represented to the
Court at oral argument that the government does not intend to rely upon any privileged
materials, not previously disclosed to Wilmington, during the trial. The Court will hold
the government to that commitment during trial. Accordingly, the Court DENIES the
motion to exclude this argument as moot, as well.
B. Dr. Grigg’s Expert Testimony
Wilmington requests that the Court exclude portions of the expert testimony
proffered by Dr. Neil S. Grigg, professor of civil and environmental engineering at
Colorado State University. Pl. Mot. at 17; ECF No. 70-2 (“Grigg Rep.”) at 1, 17. The
-8-
government intends to have Dr. Grigg testify that Wilmington’s service charges related
to the properties are unreasonable for nine reasons. See Grigg Rep. at 1–3. Wilmington
primarily contends that opinion nos. 3, 8, and 9 of Dr. Grigg’s testimony constitute
hearsay because they rely on the opinions of other “undisclosed” and “non-testifying”
experts who work for the Army Corps of Engineers and therefore should be excluded
pursuant to Federal Rule of Evidence 703. Pl. Mot. at 17–24.
In opinion no. 3 of his expert report, Dr. Grigg concludes that Wilmington
inaccurately calculated the stormwater charges based on an analysis of the physical
characteristics and aerial photos of the properties. Grigg Rep. at 5–6. He additionally
explained that “[t]he low contributions of the properties to stormwater pollution can
also be demonstrated by their actual land use and by modeling results, which are
included with this report as Appendix 6.” Id. at 5. Appendix 6 contains site and
hydrologic modeling data intended to “demonstrate how much runoff would leave the
[properties] after a typical rainfall.” Id. at 40–43. Robert J. Moore, a hydraulic engineer
with the Army Corps of Engineers, provided this modeling information to Dr. Grigg.
Id. at 42. The government did not disclose that Mr. Moore would be called to testify;
rather, Dr. Grigg intends to utilize Mr. Moore’s modeling as part of his expert
testimony. Pl. Mot. at 22–24.
In opinion nos. 8 and 9, Dr. Grigg referenced Appendix 4 of his report, which
contains data relating to the properties’ measurements. Grigg Rep. at 11–14. In
Appendix 4, Dr. Grigg indicated that the Army Corps of Engineers provided maps and
accompanying analysis that demonstrate a different computation is warranted (i.e.,
from that of Wilmington). Id. at 32–36. Heather M. Sachs, a realty specialist with the
Army Corps of Engineers, provided that property information to Dr. Grigg. Pl. Mot. at
23–24. The government, however, did not disclose Ms. Sachs as a fact witness. Id.
Rule 703 of the Federal Rules of Evidence provides that an expert is permitted to
rely on evidence that is otherwise inadmissible, “if experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject.”
The Advisory Committee Notes to the 1972 Proposed Rules permit a doctor to rely on
“statements by patients and relatives, reports and opinions from nurses, technicians
and other doctors, hospital records, and X rays.” Fed. R. Evid. 703 Advisory Committee
Note. “One expert may not, however, merely adopt another expert’s opinions as his or
her own reflexively and without understanding the materials or methods underlying
the other expert’s opinions.” U.S. Bank Nat. Ass’n v. PHL Variable Life Ins. Co., 112
F. Supp. 3d 122, 130–31 (S.D.N.Y. 2015); see Mike’s Train House, Inc., v. Lionel, L.L.C., 472
F.3d 398, 409 (6th Cir. 2006) (“Other circuits have squarely rejected any argument that
Rule 703 extends so far as to allow an expert to testify about the conclusions of other
experts.”). Indeed, this would “allow a witness, under the guise of giving expert
-9-
testimony, to in effect become the mouthpiece of the witnesses on whose statements or
opinions the expert purports to base his opinion.” Brace v. United States, 72 Fed. Cl. 337,
352 (2006) (internal quotation marks omitted).
While Wilmington correctly notes that there is case law supporting its position
that expert testimony can become inadmissible when it is based on the opinions of
another, Pl. Mot. at 19–20, those cases are not comparable to the case at hand. Those
cases establish that an expert cannot submit a report as substantive evidence of his or
her conclusions that was not used in formulating his or her expert opinion, Turner v.
Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1060–62 (9th Cir. 2003), and that one
expert cannot testify in support of the conclusions of another non-testifying expert.
Mike’s Train House, Inc., 472 F.3d at 409;5 United States v. Grey Bear, 883 F.2d 1382, 1392–
93 (8th Cir. 1989).
Wilmington relies extensively on Dura Automotive Systems of Indiana, Inc. v. CTS
Corp., 285 F.3d 609, 613 (7th Cir. 2002), but that case is not particularly helpful to
Wilmington’s argument. Dura involved an expert witness relying on the computer
modeling his assistants created where the “underlying expert judgment is in issue” and
where the models were “inherently not the most precise of scientific tools.” 285 F.3d at613–14. Further, the expert witness admitted that he was not qualified to discuss the
modeling. Id. at 611–12; see Uncommon, LLC v. Spigen, Inc., 305 F. Supp. 3d 825, 845–46
(N.D. Ill. 2018) (“In Dura, the plaintiffs’ sole named expert admitted in depositions that
his analysis relied upon mathematical models that he lacked the expertise to evaluate.”).
In the present case, in contrast, Dr. Grigg intends to incorporate into his
testimony the analysis of Mr. Moore and Ms. Sachs. Notably, Wilmington does not
seriously contest either the accuracy or the soundness of the underlying computer
modeling or mapping data that Dr. Grigg relies upon in his report; nor does
Wilmington contend that experts in Dr. Grigg’s field do not regularly rely on such
analysis. See Pl. Mot at 17–24. Although Wilmington claims that Dr. Grigg does “not
understand[] the software, methods, or data used . . . due to a lack of access to or
competency in the methods employed by the [Army Corps] experts[,]” Id. at 21,
Wilmington provides no factual basis to substantiate its bald assertion. Wilmington
further asserts that “Dr. Grigg never worked with the [Army Corps] experts, had no
input in choosing who would conduct the research, and did not supervise the activities
of the [Army Corps] experts.” Id. at 21–22. These all may be true criticisms. But none
5Indeed, in Mike’s Train House, Inc., the expert witness “testified extensively about the
conclusions” reached by a different, non-testifying expert. 472 F.3d at 409 (emphasis added). In
contrast, Dr. Grigg’s report makes minimal mention of Mr. Moore’s and Ms. Sachs’ work. See
Grigg Rep. at 5, 11–14.
- 10 -
of these alleged failures purport to show that Dr. Grigg does not understand Mr.
Moore’s or Ms. Sachs’ analysis. Accordingly, Wilmington’s criticisms “go to weight, not
admissibility[,]” and may be explored on cross-examination.6 U.S. Bank Nat. Ass’n, 112
F. Supp. 3d at 131.
Wilmington offers additional arguments in support of excluding other portions
of Dr. Grigg’s expert testimony. See Pl. Mot. at 25–37. Given that these arguments raise
issues based either on the relevancy of Dr. Grigg’s testimony or exhaustion of
Wilmington’s appeal process, the Court denies these parts of Wilmington’s motion, for
the reasons explained above. See supra Sec. I (relevancy of expert testimony);
Sec. II.A.1–2 (exhaustion).
C. Mr. Kelly’s Testimony
Finally, Wilmington seeks to exclude Daniel Kelly’s testimony at trial, arguing
that the government did not properly disclose him as a witness. Pl. Mot. at 37–38. But
Wilmington critically undercuts its own argument. In its motion in limine, Wilmington
concedes that the government included Mr. Kelly in its initial disclosures as one of 13
individuals who may possess discoverable information. Id. at 38. Wilmington also
acknowledges that, in response to an interrogatory seeking a more definite list of trial
witnesses, the government incorporated its initial disclosures by reference. Id.; Def.
Resp. at 24. While Wilmington understandably would have preferred a more specific
witness list at the outset, the Court cannot conclude that the government somehow
failed to disclose Mr. Kelly as a potential witness. To the extent that Wilmington
believes that it will be prejudiced by not having deposed Mr. Kelly, Wilmington should
have filed a timely motion to reopen discovery for the limited purpose of taking Mr.
Kelly’s deposition and not wait until this late date to seek the exclusion of his
testimony.
6 This conclusion also resolves the additional issue of Mr. Moore’s and Ms. Sachs’ testifying at
trial. The government originally did not disclose that Mr. Moore and Ms. Sachs would be called
as witnesses; rather, the first mention of their testifying was in the government’s witness list
submitted along with its pre-trail memorandum. See ECF No. 64-1. Wilmington, in its motion
in limine, moved to have them excluded pursuant to RCFC 37. Pl. Mot. at 37. The government
in response indicates that it included Mr. Moore and Ms. Sachs on the witness list only “out of
an abundance of caution” because the government was concerned that “Wilmington might
attempt the type of collateral attack on Dr. Grigg’s report that it attempts with this motion in
limine.” Def. Resp. at 21 n.11. Because the Court will permit Dr. Grigg to address Mr. Moore’s
and Ms. Sachs’ analysis, there is no need for them to testify at trial and, accordingly,
Wilmington’s motion to exclude their testimony is DENIED as moot.
- 11 -
CONCLUSION
The parties’ motions for leave of the Court to file responses to the pre-trial
memorandum of contentions of fact and law hereby are GRANTED. For the reasons
explained above, the Court DENIES the government’s motion in limine and DENIES
Plaintiff’s motion in limine.
IT IS SO ORDERED.
s/ Matthew H. Solomson
Matthew H. Solomson
Judge
- 12 -