USA v. Bobby Wolford Trucking & Salvage, Inc. et al

Filing 46

MINUTE ORDER denying defendant Bobby Wolford Trucking & Salvage, Inc.'s 30 Motion to Exclude Expert Testimony of Mark Buckley, Ph.D. Authorized by Judge Thomas S. Zilly. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES OF AMERICA,

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Plaintiff,

BOBBY WOLFORD TRUCKING &
SALVAGE, INC., et al.,

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MINUTE ORDER

Defendants.

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C18-747 TSZ

v.

The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
(1)
The motion to exclude the expert testimony of Mark Buckley, Ph.D.
brought by defendant Bobby Wolford Trucking & Salvage, Inc. (“BWT”), pursuant to
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), docket no. 30, is DENIED.
Defendant’s motion does not challenge the credentials of Dr. Buckley; rather, it
challenges solely the methodology used by Dr. Buckley. See Motion at 7 (docket no. 30).
Dr. Buckley has analyzed two of the statutory factors relevant to the determination of a
civil penalty under the Clean Water Act (“CWA”). See 33 U.S.C. § 1319(d). Defendant
contends that the CWA “requires” an expert to examine all six factors and, as a result,
Dr. Buckley’s expert report “fails to comport with the law.” Motion at 10. Defendant’s
contention is without merit. In support of the United States’ claim for a civil penalty,
Dr. Buckley has analyzed the two factors that involve questions of economics, to wit:
the economic benefit, if any, BWT obtained (factor 2) and the economic impact of a
penalty on BWT (factor 5). Dr. Buckley analyzed these two economic factors using a
reliable method consistently applied. If BWT disagrees with the analysis, vigorous cross-

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MINUTE ORDER - 1

1 examination and presentation of contrary evidence is available to BWT to challenge
Dr. Buckley’s conclusions. 1 See Daubert, 509 U.S. at 596. 2
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(2)
The Clerk is directed to send a copy of this Minute Order to all counsel of
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Dated this 4th day of November, 2019.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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1

BWT’s suggestion that Dr. Buckley was also required to consider the EPA’s Policy on

19 Civil Penalties is without merit. That document is only a guide in connection with settlement
under the CWA and the Government is not bound by it. United States v. City of Evansville, Ind.,
20 2011 WL 2470670 at *6 (S.D. Ind. June 20, 2011).
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The Court has also considered the Government’s challenge to the late disclosure of
Dr. Dunford’s expert report dated June 21, 2019, and concludes that the report, Ex. C to Hansen
Decl. (docket no. 38), will be considered by the Court but it does not support BWT’s motion to
22 exclude Dr. Buckley’s testimony.

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MINUTE ORDER - 2