Greyhound Lines Incorporated v. Viad Corporation

Filing 99

AMENDED ORDER re: 98 Order on Motion in Limine (to correct date of filing). Signed by Judge David G Campbell on 11/8/2016. (DGC, nvo)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Greyhound Lines Incorporated, Plaintiff, 10 11 AMENDED ORDER v. 12 No. CV-15-01820-PHX-DGC Viad Corporation, 13 Defendant. 14 15 16 Plaintiff Greyhound Lines Incorporated (“Greyhound”) moves to exclude all or 17 parts of the expert testimony of Thomas J. Schruben, an expert witness for Defendant 18 Viad Corporation (“Viad”). Doc. 85. The Court has reviewed the parties’ briefing and 19 concludes that oral argument will not aid the Court’s decision. The request for oral 20 argument is therefore denied. Fed. R. Civ. P. 78(b). The Court will address each of 21 Greyhound’s arguments. 22 1. Undisclosed Documents. 23 Greyhound argues that Schruben failed to disclose all of the documents he 24 “considered” in developing his expert opinions as required by Rule 26(a)(2)(B)(ii). 25 Specifically, one entry in Schruben’s expert report noted that he “had access to” 26 documents produced in this litigation, but failed to state which documents and whether he 27 had considered or relied on them. Greyhound complains that it devoted significant time 28 trying to identify these documents in Schruben’s deposition, without success, and that its 1 inability to identify these documents will hamper its ability to cross-examine Schruben at 2 trial. 3 documents he relied on in forming his opinions. Viad responds that Schruben’s 57-page report cites more than 700 specific 4 The Court will not exclude Schruben’s testimony on this basis. Schruben will not 5 be permitted to rely on any document during his trial testimony that he did not identify in 6 his report or in response to deposition questions. As his testimony will likely be only as 7 reliable as the evidence upon which it is based, this limitation adequately protects 8 Greyhound against unfair prejudice or surprise at trial and prevents Schruben from 9 attempting to bolster the credibility of his opinions by citing documents he did not 10 disclose. 11 2. 12 Greyhound states that Schruben’s report simply identified his work for the last ten 13 years as an “environmental consultant,” and failed to disclose that most of his work was 14 performed for ACRM, a company that assists underground storage tank fund managers. 15 Greyhound argues that it was required to spend an inordinate amount of time pursuing 16 this information in Schruben’s deposition and could have prepared for a more effective 17 deposition if the information had been disclosed in his report. 18 Schruben’s report and resume did disclose that he consults for state fund managers, and 19 notes that Greyhound never expressed concern – to Viad or the Court – about the amount 20 of time it had to depose Schruben. Failure to Disclose ACRM. Viad responds that 21 The Court will not exclude Schruben’s testimony on this basis. The information 22 was disclosed during Schruben’s deposition, is now known to Greyhound, and can be 23 used in preparing for Schruben’s testimony at trial. Indeed, Greyhound’s argument on 24 this point appears to be something of a rehearsal for that cross-examination. 25 3. 26 Greyhound cites the following heading from Schruben’s opinion: “Environmental 27 Obligations Arising From UST Leaks Of Which Viad Was Notified Before March 2, 28 1992.” Doc. 96 at 7. From his heading alone, Greyhound concludes that Schruben is Schruben’s Alleged Legal Opinions. -2- 1 offering improper legal opinions on the meaning of “Notice” and “Environmental 2 Obligations” in this case. Doc. 85 at 11-12. Viad makes clear in its response, however, 3 that Schruben offers no opinions on the legal interpretation of these terms. Doc. 93 at 11. 4 Viad agrees that the Court will resolve the meaning of these terms. Id. at 10. No further 5 ruling is required. 6 4. 7 The parties disagree on the nature of Schruben’s opinion. Greyhound claims that 8 it is based on the fact that a line leak detector was removed at the Jacksonville property, 9 when in fact none was ever in place. Viad argues that Schruben’s opinion is based on the 10 absence of a detector, whether removed or absent from the outset, as well as other facts, 11 such as failure of a tightness test. Line Leak Detector at the Jacksonville Property. 12 This factual disagreement does not require exclusion of any Schruben opinion in 13 this bench trial. The Court will be able to resolve this issue on the evidence presented at 14 trial, and to assess the credibility of Schruben’s testimony based on Greyhound’s claim of 15 a factual error. See KnightBrook Ins. Co. v. Payless Car Rental Sys., Inc., 43 F. Supp. 3d 16 965, 985 (D. Ariz. 2014). 17 5. 18 Greyhound notes that Schruben failed to explain the presence of some 19 contamination at the Seattle property, failed to consider possible sources of gasoline 20 contamination at the Portland property, and failed to consider alternative sources of 21 contamination at the Miami property. Viad responds that Schruben’s opinions are limited 22 to whether the contamination for which Greyhound seeks cleanup costs relates to tank 23 leaks of which Viad had notice before March 1, 1992 – Schruben’s purpose is not to 24 pinpoint the source of all contamination. Alleged Defects in Opinions. 25 The Court will not exclude Schruben’s testimony on this basis. The parties again 26 have differing views about the import of his testimony, and Greyhound will be fully 27 capable of presenting its view and exposing weaknesses in Schruben’s testimony at trial. 28 As the Supreme Court has noted, “[v]igorous cross-examination, presentation of contrary -3- 1 evidence, and careful [attention to] the burden of proof are the traditional and appropriate 2 means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharm., 3 Inc., 509 U.S. 579, 596 (1993). This is particularly true in light of the fact that this will 4 be a bench trial. See KnightBrook, 43 F. Supp. 3d at 985. 5 IT IS ORDERED that Greyhound’s motion to exclude (Doc. 85) is denied. 6 Dated this 7th day of November, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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