Entergy Nuclear Vermont Yankee, LLC et al v. Shumlin et al
ORDER granting 126 Motion in Limine to Preclude Expert Testimony Expressing Legal Conclusions. Signed by District Judge J. Garvan Murtha on 8/25/2011. (kak)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
PETER SHUMLIN, in his official capacity as
GOVERNOR OF THE STATE OF VERMONT;
WILLIAM SORRELL, in his official capacity as the
ATTORNEY GENERAL OF THE STATE OF
VERMONT; and JAMES VOLZ, JOHN BURKE
and DAVID COEN, in their official capacities as
MEMBERS of THE VERMONT PUBLIC
ENTERGY NUCLEAR VERMONT YANKEE, LLC
and ENTERGY NUCLEAR OPERATIONS, INC.,
File No. 1:11-cv-99 (jgm)
MEMORANDUM AND ORDER
Plaintiffs seek to preclude Defendants from presenting expert testimony expressing legal
conclusions as to the preemptive scope of the Atomic Energy Act, the purpose of the challenged
Vermont statutes, and the contractual effect of a change in state law. (Doc. 126.) Defendants
oppose the motion. (Doc. 129.) Trial on the merits is scheduled for September 12-14, 2011.
A ruling on whether to admit expert testimony is within the discretion of the trial judge
and will be set aside on appeal only if “manifestly erroneous.” United States v. Duncan, 42 F.3d
97, 101 (2d Cir. 1994). Generally, expert testimony is admissible if it is helpful to the factfinder.
Fed. R. Evid. 702. Expert testimony stating a legal conclusion, however, is inadmissible.
See Duncan, 42 F.3d at 101.
The Court declines to engage in a line-by-line review of Defendants’ expert reports to
rule on this motion. To aid the parties in conducting expert depositions, however, the Court
notes it will not consider expert testimony on purely legal issues and does not expect to hear such
testimony at trial. Ultimate legal issues are matters that counsel can and should argue to the
Court -- such matters do not require the imprimatur of an “expert.” Opining that state laws are
not preempted is a legal conclusion and not helpful to the Court. However, use of the term
“legitimate,” or “reasonable,” for example, does not automatically transform a statement into a
legal conclusion. See, e.g., Doc. 126-4 (Hinkley Expert Report) at 9. The Court will hear
testimony based on personal knowledge, experience in the nuclear industry, and research of
legislative history but, as noted, the Court will not hear or rely upon opinions on ultimate legal
issues to be determined by the Court.
As the trial of this matter will be a bench trial, there will be no danger a jury might give
too much credence to a legal expert. Should an expert attempt to offer purely legal conclusions
at trial, the Court will hear and rule on objections.
As Defendants represent their experts will not offer testimony consisting of legal
conclusions, see Doc. 129 at 7, Plaintiffs’ motion in limine (Doc. 126) is GRANTED.
Dated at Brattleboro, in the District of Vermont, this 25th day of August, 2011.
/s/ J. Garvan Murtha
Hon. J. Garvan Murtha
United States District Judge
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