Greyhound Lines Incorporated v. Viad Corporation

Filing 98

ORDER denying 85 Motion in Limine. Signed by Judge David G Campbell on 11/7/2016.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Greyhound Lines Incorporated,
Plaintiff,

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ORDER

v.

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No. CV-15-01820-PHX-DGC

Viad Corporation,

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Defendant.

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Plaintiff Greyhound Lines Incorporated (“Greyhound”) moves to exclude all or

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parts of the expert testimony of Thomas J. Schruben, an expert witness for Defendant

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Viad Corporation (“Viad”). Doc. 85. The Court has reviewed the parties’ briefing and

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concludes that oral argument will not aid the Court’s decision. The request for oral

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argument is therefore denied. Fed. R. Civ. P. 78(b). The Court will address each of

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Greyhound’s arguments.

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1.

Undisclosed Documents.

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Greyhound argues that Schruben failed to disclose all of the documents he

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“considered” in developing his expert opinions as required by Rule 26(a)(2)(B)(ii).

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Specifically, one entry in Schruben’s expert report noted that he “had access to”

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documents produced in this litigation, but failed to state which documents and whether he

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had considered or relied on them. Greyhound complains that it devoted significant time

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trying to identify these documents in Schruben’s deposition, without success, and that its

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inability to identify these documents will hamper its ability to cross-examine Schruben at

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trial.

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documents he relied on in forming his opinions.

Viad responds that Schruben’s 57-page report cites more than 700 specific

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The Court will not exclude Schruben’s testimony on this basis. Schruben will not

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be permitted to rely on any document during his trial testimony that he did not identify in

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his report or in response to deposition questions. As his testimony will likely be only as

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reliable as the evidence upon which it is based, this limitation adequately protects

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Greyhound against unfair prejudice or surprise at trial and prevents Schruben from

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attempting to bolster the credibility of his opinions by citing documents he did not

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disclose.

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2.

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Greyhound states that Schruben’s report simply identified his work for the last ten

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years as an “environmental consultant,” and failed to disclose that most of his work was

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performed for ACRM, a company that assists underground storage tank fund managers.

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Greyhound argues that it was required to spend an inordinate amount of time pursuing

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this information in Schruben’s deposition and could have prepared for a more effective

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deposition if the information had been disclosed in his report.

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Schruben’s report and resume did disclose that he consults for state fund managers, and

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notes that Greyhound never expressed concern – to Viad or the Court – about the amount

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of time it had to depose Schruben.

Failure to Disclose ACRM.

Viad responds that

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The Court will not exclude Schruben’s testimony on this basis. The information

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was disclosed during Schruben’s deposition, is now known to Greyhound, and can be

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used in preparing for Schruben’s testimony at trial. Indeed, Greyhound’s argument on

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this point appears to be something of a rehearsal for that cross-examination.

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3.

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Greyhound cites the following heading from Schruben’s opinion: “Environmental

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Obligations Arising From UST Leaks Of Which Viad Was Notified Before March 2,

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1992.” Doc. 96 at 7. From his heading alone, Greyhound concludes that Schruben is

Schruben’s Alleged Legal Opinions.

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offering improper legal opinions on the meaning of “Notice” and “Environmental

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Obligations” in this case. Doc. 85 at 11-12. Viad makes clear in its response, however,

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that Schruben offers no opinions on the legal interpretation of these terms. Doc. 93 at 11.

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Viad agrees that the Court will resolve the meaning of these terms. Id. at 10. No further

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ruling is required.

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4.

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The parties disagree on the nature of Schruben’s opinion. Greyhound claims that

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it is based on the fact that a line leak detector was removed at the Jacksonville property,

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when in fact none was ever in place. Viad argues that Schruben’s opinion is based on the

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absence of a detector, whether removed or absent from the outset, as well as other facts,

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such as failure of a tightness test.

Line Leak Detector at the Jacksonville Property.

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This factual disagreement does not require exclusion of any Schruben opinion in

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this bench trial. The Court will be able to resolve this issue on the evidence presented at

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trial, and to assess the credibility of Schruben’s testimony based on Greyhound’s claim of

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a factual error. See KnightBrook Ins. Co. v. Payless Car Rental Sys., Inc., 43 F. Supp. 3d

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965, 985 (D. Ariz. 2014).

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5.

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Greyhound notes that Schruben failed to explain the presence of some

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contamination at the Seattle property, failed to consider possible sources of gasoline

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contamination at the Portland property, and failed to consider alternative sources of

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contamination at the Miami property. Viad responds that Schruben’s opinions are limited

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to whether the contamination for which Greyhound seeks cleanup costs relates to tank

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leaks of which Viad had notice before March 1, 1992 – Schruben’s purpose is not to

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pinpoint the source of all contamination.

Alleged Defects in Opinions.

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The Court will not exclude Schruben’s testimony on this basis. The parties again

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have differing views about the import of his testimony, and Greyhound will be fully

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capable of presenting its view and exposing weaknesses in Schruben’s testimony at trial.

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As the Supreme Court has noted, “[v]igorous cross-examination, presentation of contrary

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evidence, and careful [attention to] the burden of proof are the traditional and appropriate

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means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharm.,

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Inc., 509 U.S. 579, 596 (1993). This is particularly true in light of the fact that this will

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be a bench trial. See KnightBrook, 43 F. Supp. 3d at 985.

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IT IS ORDERED that Greyhound’s motion to exclude (Doc. 85) is denied.

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Dated this 7th day of October, 2016.

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