ASARCO v. British Petroleum et al
ORDER re 92 Objection, 93 Objection. Signed by Chief Judge Dana L. Christensen on 3/19/2014. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ASARCO LLC, a Delaware corporation,
ATLANTIC RICHFIELD COMPANY,
a Delaware corporation, AMERICAN
CHEMET CORPORATION, a Montana
On December 30, 2013, Plaintiff Asarco filed two documents with the
Court: (1) objections to Defendant Atlantic Richfield Company’s expert reports of
Brian Hansen and Alan D. Zunkel (Doc. 92), and (2) objections to Defendant
American Chemet Corporation’s expert report of Dr. Allen J. Medine. The
respective Defendants responded to the objections. (Docs. 94; 97.)
Generally, Asarco argues that the opinion testimony of all three proffered
experts should be given “little or no weight” (Docs. 92 at 2; 93 at 2), and should
be excluded. Specifically, Asarco claims the following with respect to each
proffered Defense expert:
Liability expert Brian Hansen offers opinions on areas outside of his
expertise and qualifications. His testimony is not based on a comprehensive
and reliable foundation and fails to properly account for and rule out other
plausible scenarios through which the East Helena Site may have been
contaminated or by whom it may have been contaminated.
Liability expert Dr. Alan Zunkel’s testimony is not based on a
comprehensive and reliable foundation and fails to properly account for and
rule out other plausible scenarios through which the East Helena Site may
have been contaminated or by whom it may have been contaminated. Dr.
Zunkel’s methodology and resulting opinions are flawed, are not based
upon sufficient underlying facts and data, and are not the product of reliable
scientific principle and methods.
Liability expert Dr. Allen Medine offers opinions on areas outside of his
expertise and qualifications. Dr. Medine’s methodology is flawed and not
based on sufficient underlying facts and data, and/or are not the product of
reliable scientific principles and methods.
Asarco claims that all three experts’ opinions fail to meet the requirements of
Federal Rule of Civil Procedure 26, Federal Rule of Evidence 702 and 703, and
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). However, Asarco
does not advance any argument as to why or how the expert reports fail to satisfy
the timeliness and sufficiency standards required by Rule 26(a)(2)(B), referencing
that Rule only in its headings. Asarco’s actual arguments are limited to the Federal
Rules of Evidence and Daubert.
Presumably, Asarco filed its objections pursuant to Paragraph 8 of the
Court’s scheduling order, which states in relevant part: “Objections to the
timeliness or sufficiency of a Rule 26(a)(2)(B) report must be made within 14 days
of the disclosure date set forth in paragraph 1, or the objection will be deemed
waived” (Doc. 56 at 5). To the extent Asarco is confused by this paragraph of the
scheduling order, the following clarification is provided. The order makes no
mention of objections related to the admissibility of expert opinions based on the
Federal Rules of Evidence or Daubert and its progeny, and for good reason: such
objections are most appropriately addressed through a motion limine filed closer
to trial and in accordance with the briefing schedule established by the Court. The
Court will certainly entertain such motions in this instance, provided that they are
fully compliant with the Local Rules – particularly Rules 7, 26.2, and 26.3(c).
However, the Court takes this opportunity to note that it is generally hesitant
to completely disqualify an expert prior to trial – especially in a situation like this
where the trial is nearly 7 months away – unless the expert’s testimony clearly
does not satisfy a Daubert analysis, or for some other readily apparent reason
based on Federal Rules of Evidence 702-705. Absent clear grounds for exclusion,
the Court prefers to consider specific objections to expert witness testimony at
trial, after the witnesses have been properly certified as experts on the basis of
sufficient foundational testimony, and in the context of the case that the Plaintiff
chooses to present, and upon Court review of the experts’ reports.1
As a final point, in the opening line of both of its objections, Asarco states
that the expert opinions “should be given little or no weight.” While Asarco goes
on to request that much of the testimony be excluded, the Court notes that
objections directed to the weight or credibility of testimony are best handled
through cross-examination at trial.
Finally, Defendant American Chemet recently filed an objection to Asarco’s
rebuttal expert disclosure and rebuttal expert reports (Doc. 111) pursuant to
Paragraphs 8 and 9 of the scheduling order. The Court notes the objection, and
acknowledges that its contents are properly limited to the timeliness of Asarco’s
disclosure under Rule 26(a)(2)(D)(ii). Should American Chemet wish to seek a
remedy from the Court for these alleged violations, it may file a motion that
complies with the Local Rules and the Court’s scheduling order.
Asarco did not submit the challenged expert reports with its objections.
IT IS ORDERED that Asarco’s objections (Docs. 92; 93) are
OVERRULED, subject to renewal at the appropriate time and in the appropriate
Dated this 19th day of March, 2014.
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