Smart Sand, Inc. v. US Well Services LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SMART SAND, INC., )
Plaintiff, )
)
)
v. ) C.A. No. N19C-01-144
) PRW CCLD
US WELL SERVICES LLC, )
Defendant. )
Submitted: May 7, 2021
Decided: June 1, 2021
Issued: June 11, 2021
ORDER ON THE PARTIES’ TRIAL MOTIONS TO EXCLUDE
EXPERT OPINION TESTIMONY
AND CERTAIN OTHER TESTIMONY AND EXHIBITS
Upon Smart Sand, Inc.’s Trial Motion to Exclude
Expert Opinion Testimony and Certain Other Testimony and Exhibits,
DENIED.
Upon US Well Services LLC’s Trial Motion to Exclude
Expert Opinion Testimony and Certain Other Testimony and Exhibits,
DENIED, in part, and GRANTED, in part.
This 11th day of June, 2021, upon consideration of the parties’ mid- and
post-trial evidentiary motions (D.I. 331, 333), their subsequent responses (D.I. 337,
341), and the complete record in this matter, it appears to the Court that:
(1) On November 6, 2015, Smart Sand, Inc., and US Well Services LLC,
entered into a Master Product Purchase Agreement (together with its amendment
executed on May 1, 2016, the “PPA”) through which Smart Sand supplied frac sand
to US Well.1 The PPA required US Well to pay Smart Sand a monthly
non-refundable capacity reservation charge, regardless of whether US Well actually
purchased and took any frac sand (the “Reservation Charge”).2
(2) Contemporaneously with the PPA, the parties also entered into a
Railcar Usage Agreement (the “RUA” and together with the PPA, the
“Agreements”).3 Under the RUA, US Well borrowed railcars from Smart Sand for
the delivery of sand purchased under the PPA in exchange for a monthly fee of $650
per railcar.4 The RUA’s term continued until the termination or expiration of the
PPA.5
1
Compl. ¶¶ 3, 7, Jan. 14, 2019 (D.I. 1); First Am. Countercls. ¶ 3, Apr. 18, 2019 (D.I. 17); see
generally Hobart M. King, What is Frac Sand?, GEOLOGY.COM—GEOSCIENCE NEWS AND
INFORMATION, https://geology.com/articles/frac-sand/ (last visited May 27, 2021) (“‘Frac sand’ is
a high-purity quartz sand with very durable and very round grains. It is a crush-resistant material
produced for use by the petroleum industry. It is used in the hydraulic fracturing process (known
as ‘fracking’) to produce petroleum fluids, such as oil, natural gas, and natural gas liquids from
rock units that lack adequate pore space for these fluids to flow to a well.”).
2
Compl. ¶ 10.
3
Compl. ¶¶ 3, 7; First Am. Countercls. ¶ 6.
4
Joint Exhibit (“JX”) 4 (the RUA) (D.I. 338 – letter from Seth Niederman enclosing the
electronic media containing the Joint Trial Exhibits; D.I. 339 – Joint Exhibits List).
5
Id.
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(3) In the fall of 2018, US Well stopped purchasing/taking sand from Smart
Sand and also stopped making payments.6 In January 2019, US Well purported to
terminate the Agreements, retroactively from September 1, 2018, claiming that
Smart Sand had breached the PPA.7 At the time of the PPA’s calculated expiration,
April 30, 2020,8 US Well had purchased 793,176.47 tons of sand, leaving a reported
shortfall of 1,206,823.53 tons.9
(4) On January 14, 2019, Smart Sand filed its Complaint alleging
non-payment under the Agreements.10 US Well answered and asserted
counterclaims.11 During the pre-trial stage of this case, the Court considered myriad
motions filed by both parties. And on December 14, 2020, a trial commenced on the
factual issues left to be decided.12
(5) As part of the Court’s ruling on the earlier dispositive motions, it denied
6
JX-268 (Oct. 24, 2018 email correspondence re: Smart Sand Prepayment), JX-278 (Nov. 1,
2018 email correspondence re: Smart Sand Oct. Railcar Usage Invoice), JX-373 (Final Invoice).
7
JX-333 (Jan. 11, 2019 US Well Termination Letter).
8
Trial Tr., Dec. 14, 2020, at 104 (Lee Beckelman) (D.I. 347).
9
JX-373 (Final Invoice).
10
Compl.
11
First Am. Countercls.
12
Trial Worksheet, Jan. 4, 2021 (D.I. 327).
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each party’s respective motions in limine to exclude the other’s expert witnesses.13
(6) This Order resolves only the parties’ specific remaining mid- and
post-trial evidentiary cavils that could affect the Court’s final trial decision and
verdict.14
I. SMART SAND’S MOTION TO EXCLUDE15
A. SMART SAND’S MOTION TO EXCLUDE
BRANDON SAVISKY’S EXPERT TESTIMONY.
(7) Smart Sand seeks to exclude the testimony of US Well’s expert,
Brandon Savisky, on the grounds that his Northern White Sand projections were
“not offered for any relevant purpose[,]” and therefore should be excluded under
Delaware Rule of Evidence (“D.R.E.”) 702.16 Smart Sand contends that Mr. Savisky
could not explain his methodology, and moreover that his projections did not
account for the “grade, volume, basin, or mine location” that affect pricing.17
13
Id. (allowing the parties to raise these issues in post-trial briefing).
14
And so, the Court assumes any reader of this document’s knowledge of the full procedural,
evidentiary, and trial record developed over the life of this case. Anyone seeking a greater
understanding of the underlying dispute and trial via a more fulsome factual recitation should refer
to the Court’s post-trial decision and verdict that is being issued simultaneously herewith.
15
SSI’s Post-Trial Evid. Br. at 1, Jan. 29, 2021 (D.I. 333) (SSI seeks to exclude “(i) the trial
testimony of Brandon Savisky, US Well’s (“USW”) market expert, (ii) certain opinions offered by
Dana Trexler, USW’s damages expert, and (iii) the draft inventory valuation report prepared by
Gordon Brothers[.]”).
16
Id. at 2.
17
Id. at 3-4, 6, and 8.
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Further, Smart Sand claims the projections did not account for the negotiations that
altered these prices.18
(8) In response, US Well claims that Mr. Savisky’s data is based on reliable
sources used by the industry.19 Moreover, US Well contends that Mr. Savisky was
sought and presented expert testimony to give an overview of the historic market,
not compute the exact price of a specific type of frac sand at a particular time.20
(9) Mr. Savisky’s expert testimony provided estimated historic market
prices for frac sand. As stated by US Well, his role was not to compute data, but
rather to present it. As such, Mr. Savisky is not required to defend or explain every
methodology used in every citation within his sources. Instead, Mr. Savisky’s
testimony must be “based on sufficient facts or data” that “is the product of reliable
principles and methods[,]” which he, the “expert has reliably applied . . . to the
facts.”21 Here, Mr. Savisky based his conclusion on data sets relied on by the
industry (and Smart Sand’s expert does not doubt that data’s reliability 22), his
18
Id. at 8.
19
USW’s Post-Trial Evid. Resp. at 2-3, Feb. 12, 2021 (D.I. 337).
20
Id. at 1.
21
D.R.E. 702.
22
Trial Tr., Dec. 18, 2020, at 240 (Stephen Becker) (D.I. 346) (“Q: Do you believe the EIA report
is unreliable because it relies on his Markit reports? A: No.”).
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analysis is summative (as opposed to computed), and Mr. Savisky has applied this
summation of frac sand data to the specific facts of this case. The fact that Mr.
Savisky’s analysis doesn’t account for granular detail of certain facts or data not
originally generated by him, doesn’t render his information wrong or unhelpful.23
And as our Supreme Court has observed, “[a] strong preference exists” for admitting
expert opinions “when they will assist the trier of fact in understanding the relevant
facts or the evidence.”24 Here the Court has determined Mr. Savisky’s testimony
does aid such understanding.25
(10) Thus, Smart Sand’s Motion to Exclude Mr. Savisky’s expert testimony
is DENIED. The Court has admitted Mr. Savisky’s expert testimony under Rules
702, 703,26 and 705, considered it in light of his cross-examination and the counter
23
State ex rel. French v. Card Compliant, LLC, 2018 WL 4151288, at *2 (Del. Super. Ct. Aug.
29, 2018) (observing “that a rigid application of the Daubert factors simply cannot be engaged to
determine testimonial reliability in every field of expertise.”).
24
Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018) (citation omitted).
25
See, e.g. Conway v. Bayhealth Med. Ctr., 2001 WL 337228, at *2 (Del. Super. Ct. Mar. 26,
2001) (permitting expert opinion on an industry standard, gleaned solely through conversations
with other industry professionals, even though it was not a “‘scientific’ matter” because it was still
a “‘specialized’ matter [that was] relevant and helpful to the fact finder.”); see also Cornell
Glasgow, LLC v. LaGrange Props., LLC, 2012 WL 6840625, at *20 (Del. Super. Ct. Dec. 7, 2012)
(a trial judge enjoys broad latitude in determining whether expert testimony is both reliable and
relevant).
26
D.R.E. 703 (“An expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted.”).
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evidence elicited,27 and ascribed it the weight the Court found to be appropriate28
when coming to its verdict here.
B. SMART SAND’S MOTION TO EXCLUDE
DANA TREXLER’S EXPERT TESTIMONY.
(11) Smart Sand seeks to exclude the expert testimony of US Well’s expert,
Dana Trexler, claiming that it is not relevant (D.R.E. 702) and that it constitutes an
“attempt to resurrect its abandoned market differential analysis reference to a new
hybrid lost profits/retained sand concept[,]” which would cause unfair prejudice
(D.R.E. 403).29 Moreover, Smart Sand alleges that Ms. Trexler’s $30/ton figure used
to calculate the residual value of sand had not been used before trial commenced.30
27
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
(citation omitted)); see also Perry v. Berkley, 996 A.2d 1262, 1271 (Del. 2010) (noting
cross-examination rather than exclusion can be the proper method of examining the bases of an
expert’s opinion and the weight to be ascribed thereto).
28
See Dashiell v. State, 154 A.2d 688, 690 (Del. 1959) (finders of fact at trial “w[ere] not bound
by the expert testimony, and could accept it, reject it, or give it whatever weight they saw fit”
(citation omitted)); see also Jones v. Shisler, 2002 WL 1038822, at *5 (Del. Super. Ct. May 16,
2002) (outlining some of the well-accepted rules for a jury’s treatment of expert testimony:
(1) the jury is entitled to choose between expert witness testimony; (2) the jury is free to accept or
reject, in whole or in part, expert testimony offered before it and to fix its verdict upon the
testimony it accepts; (3) it is within the jury’s sole discretion to find one expert’s testimony more
credible than the other; and (4) it is also the jury’s sole province to determine expert credibility as
a trial witness).
29
SSI’s Post-Trial Evid. Br. at 17-19.
30
Id. at 13-14. See id. at 18 (“Prior to trial, Trexler never presented her hybrid opinion combining
Estimated Future Lost Profits with Alleged Windfall Profits. At trial, however, Trexler did just
that and effectively imposed a market-mitigation approach by subtracting the estimated
$30-per-ton retained sand value from Estimated Future Lost Profits.”).
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(12) US Well counters that Ms. Trexler’s report had indicated that sand
retained value, and while her initial figures used a $37/ton figure for the value of
retained sand, it was adjusted to $30/ton as a “more conservative figure” of the value
of the retained sand, and more in line with the Smart Sand Chief Financial Officer’s
projections ($31.66 to $35.25/ton).31 Thus, US Well states Ms. Trexler’s opinion
was not new, but rather tailored to Smart Sand’s own presentation.32
(13) Ms. Trexler’s testimony included an estimate of retained sand that was
adjusted at trial to respond to Smart Sand’s figures. Her use of an adjusted number
at trial does not negate the reality that her opinion had always been that sand retained
value—a relevant fact if the liquidated damages called for by the parties’ agreement
are found to be invalid.
(14) The Court would have given Ms. Trexler’s expert testimony
consideration so far as it addressed the value of retained sand. But because the Court
finds that a valid liquidated damages provision exists in the parties’ agreement and
operates as explained in its companion decision, the Court need not make a detailed
determination on Ms. Trexler’s retained-sand valuation. Thus, Smart Sand’s Motion
to Exclude Ms. Trexler’s expert testimony on this point is DENIED as moot.
31
USW’s Post-Trial Evid. Resp. at 11.
32
Id. at 14.
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C. SMART SAND’S MOTION TO EXCLUDE
THE GORDON BROTHERS REPORT.
(15) Third, Smart Sand seeks to exclude the Gordon Brothers Report as
inadmissible hearsay under D.R.E. 801 and 802.33 Smart Sand states there are a
number of assumptions in the report, and that the report “provides no factual
predicate for [Ms.] Trexler’s opinion that [Smart Sand] could have or would have
sold the sand inventory [US Well] failed to take under the PPA.”34
(16) US Well contends the Gordon Brothers Report is not inadmissible
hearsay as it is a statement by a party opponent.35 That is, Gordon Brothers was
hired by Smart Sand to prepare this report.36 Moreover, US Well claims that even if
the Gordon Brothers Report was inadmissible, Ms. Trexler could still rely on it.37
(17) Ms. Trexler used the Gordon Brothers Report to support her expert
testimony.38 While the report itself may be inadmissible hearsay, an expert witness
33
SSI’s Post-Trial Evid. Br. at 20.
34
Id. at 25.
35
USW’s Post-trial Evid. Resp. at 14.
36
Id. at 14-15.
37
Id.
38
Trial Tr., Dec. 18, 2020, at 114-15 (Dana Trexler) (testifying to her reliance on the Gordon
Brothers Report).
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can rely on that which would otherwise be hearsay.39 So, while the unfettered
admission of the Gordon Brothers Report itself may not be allowed, Ms. Trexler
certainly could rely on it when coming to her expert opinion.40 And the Court, being
well-versed in the permissible use of any of the report’s contents that were
mentioned, considered those contents only in manner allowed by our evidentiary
rules when rendering its verdict.41
(18) Thus, Smart Sand’s motion to wholly “exclude” the Gordon Brothers
Report is DENIED.
39
See D.R.E. 703 (providing that facts or data used by an expert to form an opinion “need not be
admissible for the opinion to be admitted.”).
40
See, e.g., Brandt v. Rokeby Realty Co., 2005 WL 1654362, at *4-5 (Del. Super. Ct. May 9,
2005) (finding expert’s reliance on inadmissible hearsay evidence is limited by Rule 703’s
requirement that it also be reasonably relied upon by others in the field).
41
See, e.g., id. at *5 (“An expert may not, however, rely on hearsay evidence alone to
substantively prove the truth of his statement or opinion. If the expert is merely acting as a
mouthpiece or conduit for another’s opinions or statements, he cannot be said to be acting in his
capacity as an expert in the matter and the hearsay evidence is inadmissible.”); United States v.
Mejia, 545 F.3d 179, 197 (2d Cir. 2008) (“The expert may not . . . simply transmit . . . hearsay to
the jury.” (citation omitted)); see also Gannett Co., Inc. v. Kanaga, 750 A.2d 1174, 1187-89 (Del.
2000) (cautioning against allowing experts to bring in “back-door” hearsay and finding
“[i]nadmissible facts that form the basis for an expert’s opinion are not simply elements of proof
subject to the jury’s ‘weighing’ option” (citations and footnotes omitted)).
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II. US WELL’S MOTION TO EXCLUDE42
A. US WELL’S MOTION TO EXCLUDE
STEPHEN BECKER’S REBUTTAL TESTIMONY.
(19) US Well seeks to exclude Stephen Becker’s rebuttal testimony.43
US Well argues that Smart Sand, in its rebuttal, “improperly attempted to introduce
new damage models that were not in rebuttal to any evidence offered by US Well at
trial.”44 US Well complains that this particular expert opinion was not timely
disclosed under the Court’s case management order.45 And lastly, US Well says that
Dr. Becker failed to reference the applicable contract/market price differential,
which, according to US Well, are the damages available under Uniform Commercial
Code (“UCC”) section 2-708(1).46 Thus, in US Well’s view, this testimony on lost
profits given by Dr. Becker is irrelevant.47
(20) Smart Sand counters that since US Well and Ms. Trexler opened the
door to the validity of the liquidated damages provision, Smart Sand was able to
42
USW’s Post-Trial Evid. Br. at 1, 11, 13, 15, Jan. 29, 2021 (D.I. 331).
43
Id. at 1.
44
Id. at 2.
45
Id.
46
Id. at 6-7.
47
Id. at 1, 6.
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respond and show evidence of actual damages.48 Additionally, Smart Sand contends
that: (a) the UCC has no bearing on damages; and (b) it is a lost volume seller.49
So, says Smart Sand, if the liquidated damages provision is found to be invalid, then
it is entitled to lost profits.50 And because Dr. Becker measured lost profits, his
testimony was relevant.51
(21) Bound by reasonable limitations, a party should be allowed to introduce
previously omitted testimony or evidence needed to correct an “erroneous inference”
created by its opponent.52 Here, Dr. Becker’s testimony on rebuttal was both
relevant and intended to correct an allegedly erroneous inference created by US
Well.
(22) And the Court would have given Smart Sand’s rebuttal testimony
48
SSI’s Post-Trial Evid. Resp. Br., at 6, 7, Feb. 12, 2021 (D.I. 341) (“Here, because USW
challenged the validity of the PPA’s $40-per-ton liquidated damages, Dr. Becker’s rebuttal
opinions were necessary and proper.”).
49
Id. at 10.
50
Id.
51
Id.
52
See Doran v. State, 606 A.2d 743, 747 (Del. 1992) (observing that even evidence expressly
excluded by Court order from a party’s case-in-chief might become admissible in rebuttal for the
limited purpose of countering the opponent’s defensive evidence); see also Condon v. State, 597
A.2d 7, 12 (Del. 1991) (“Through its cross-examination the defense had created false impressions
concerning the detective’s professional judgment and the victim’s credibility. The defense had
therefore opened the door to a curative explanation on re-direct examination and the court correctly
limited the additional testimony to only correcting the false impressions.” (citations omitted)).
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consideration so far as it addressed that allegedly incorrect inference. But as the
Court now finds that a valid liquidated damages provision exists in the parties’
agreement and operates as explained in its companion decision, it need ascribe no
particular weight to that rebuttal evidence. Accordingly, US Well’s motion to
exclude Smart Sand’s rebuttal testimony by Dr. Becker is DENIED as moot.
B. US WELL’S MOTION TO EXCLUDE
TESTIMONY AND EXHIBITS CONCERNING THE MATLIN TRANSACTION.
(23) US Well seeks to exclude the testimony and exhibits concerning the
merger of US Well’s parent company and Matlin & Partners Acquisition
Corporation.53 US Well says that testimony and those exhibits related to the merger
should be excluded under D.R.E. 402, as they are irrelevant, in part because the
transaction closed before the litigation issue arose.54
(24) A trial judge sitting alone to make legal determinations and “as a trier
of fact, is presumed to have made his verdict only on the admissible evidence before
him and to have disregarded that which is inadmissible.”55 That judge also “is
presumed to have the capability to attribute the proper weight to the evidence and to
53
USW’s Post-Trial Evid. Br. at 11.
54
Id.55
Burke v. State, 1997 WL 139813, at *2 (Del. Mar. 2, 1997) (internal quotation marks and
citation omitted).
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disregard evidence that is [immaterial or] unreliable.”56 Even so, it can be beneficial
to the parties—when a specific evidentiary question is posed—for the Court to
clarify its use or disregard of certain contested evidence.
(25) Again, as the Court now finds that a valid liquidated damages provision
exists in the parties’ agreement, the resolution of that contractual language itself
renders the proffered evidence of the Matlin Transaction of no consequence in
determining this action.57 And so, while of no particular aid to US Well in the end,
its motion to exclude the testimony and exhibits concerning the Matlin Transaction
is GRANTED.58
C. US WELL’S MOTION TO EXCLUDE
EVIDENCE CONCERNING THE ALVAREZ AND MARSAL SAND ANALYSIS.
(26) US Well seeks to exclude testimony and exhibits concerning the
Alvarez and Marsal (“A&M”) sand analysis on the grounds that such: (a) lack a
proper foundation or authentication; and (b) is hearsay as it was not prepared by
Smart Sand.59 Concerning the lack of a proper foundation, while Smart Sand sought
56
Truman v. Watts, 598 A.2d 713, 720 (Del. Fam. Ct. 1991).
57
See D.R.E. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in determining
the action.”).
58
D.R.E. 402 (“Irrelevant evidence is not admissible.”).
59
USW’s Post-Trial Evid. Br. at 13-14.
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to introduce the A&M analysis through US Well’s former Chief Financial Officer,
Matthew Bernard, “Mr. Bernard’s role was limited to a conversation with A&M and
[he] did not recall reviewing the information that was used to prepare the analysis.”60
Thus, US Well contends a proper foundation was not laid, as required by D.R.E.
901, and the analysis should be excluded under D.R.E. 802.61 In short, US Well
suggests that because Smart Sand did not prepare the report and it is offered for the
truth of the matter asserted, it constitutes hearsay without an exception and should
be excluded.62
(27) Smart Sand counters that Mr. Bernard laid the proper foundation by
affirming he worked with A&M to “create a contract sand summary[.]”63
Additionally, Smart Sand contends that the report: (a) is an adopted admission of
US Well; and (b) in any event, it did not offer the A&M report for the truth of the
matter asserted, but rather to show that US Well “worked with A&M to prepare an
analysis of PPA pricing under a “Moderate Case” and an “Extreme Case” to establish
60
Id. at 13.
61
Id.
62
Id. at 14.
63
SSI’s Post-Trial Evid. Resp. Br. at 20-21 (internal quotation marks omitted) (quoting Bernard
Dep. 199:20-200:4).
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that PPA pricing (and the WTI oil pricing on which PPA pricing is based) is highly
variable and unable to be predicted with accuracy.”64
(28) According to Smart Sand, the introduction of the A&M analysis was to
show that A&M prepared an analysis of PPA pricing under certain conditions, and
the PPA pricing was highly variable. While Smart Sand claims the report was not
offered for the truth of the matter asserted, Smart Sand’s position is that sand prices
are highly variable, and Smart Sand confirms, in part, this is what the report shows.
The report was, therefore, certainly introduced for the truth of the matter asserted.
(29) That, however, does not end the admissibility inquiry. As US Well
confirmed that Mr. Bernard worked with A&M, his albeit limited involvement in its
preparation and the credible evidence of his confirmation of the findings could
support the report’s admission as an adopted admission.65
(30) But, while the Court could accept the A&M sand analysis testimony
and exhibits as an adoptive admission, the Court has found that a valid liquidated
damages provision exists in the parties’ agreement, it need not and has not relied on
this sand analysis when doing so. And resultingly, the motion to exclude the
testimony and exhibits concerning the A&M sand analysis is DENIED as moot.
64
Id. at 22-23.
65
See D.R.E. 801(d)(2)(B).
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D. US WELL’S MOTION TO EXCLUDE
STEPHEN BECKER’S EXPERT REPORT.
(31) US Well seeks to exclude Stephen Becker’s expert report on the
grounds that it “is not itself evidence and should be excluded as hearsay.”66
(32) Smart Sand states that while it would agree that expert reports are
generally excluded, whatever the outcome on this issue, the same treatment should
apply to Ms. Trexler’s and Mr. Savisky’s reports.67
(33) While expert reports in certain situations might satisfy the requirements
of one or another hearsay exception, “[e]xpert reports are generally not admissible
at trial.”68 Indeed, in the main, expert reports have no independent substantive
evidentiary value but instead are oft used only to challenge the credibility of the
authoring expert witness while on the stand.69
(34) Just so here. Not one expert report provided by either side was
considered by the Court as an affirmative evidentiary statement of fact or used
independently to resolve a legal issue in this case. And so, US Well’s motion to
prevent use of Dr. Becker’s expert report as affirmative evidence with substantive
independent testimonial value is DENIED as moot.
66
USW’s Post-Trial Evid. Br. at 15.
67
SSI’s Post-Trial Evid. Resp. Br. at 23.
68
Bangs v. Follin, 2017 WL 129043, at *2 (Del. Super. Ct. Jan. 13, 2017) (citations omitted).
69
See id.-17-
III. CONCLUSION
(35) For the above reasons, Smart Sand’s motion to exclude Mr. Savisky’s
expert testimony is DENIED; Smart Sand’s motion to exclude Ms. Trexler’s expert
testimony is DENIED; and Smart Sand’s motion to preclude any use of the Gordon
Brothers Report is DENIED.
(36) US Well’s motion to exclude Dr. Becker’s rebuttal testimony is
DENIED; US Well’s motion to exclude testimony and exhibits concerning the
Matlin Transaction is GRANTED; US Well’s motion to exclude rebuttal testimony
and exhibits concerning the Alvarez and Marsal sand analysis is DENIED; and US
Well’s motion to prevent use of Dr. Becker’s expert report as affirmative evidence
with substantive independent testimonial value is DENIED.
IT IS SO ORDERED this 11th day of June, 2021.
____________________________________
Paul R. Wallace, Judge
Original to Prothonotary
cc: Counsel via File and Serve
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