United States of America et al v. NCR Corporation et al

Filing 696

ORDER signed by Chief Judge William C Griesbach on 11-28-12 deferring ruling on 533 Motion to Strike ; denying 636 Motion in Limine; denying 641 Motion in Limine; denying 645 Motion in Limine; denying 653 Motion in Limine; denying 656 Motion in Limine; denying 658 Motion in Limine; denying 660 Motion to Strike. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA and
STATE OF WISCONSIN,
Plaintiffs,
v.

Case No. 10-C-910

NCR CORP. et al.,
Defendant.

DECISION AND ORDER ON MOTIONS IN LIMINE

1. Motion to Exclude Testimony of Mark Travers [533]
The Defendants named Mark Travers as a rebuttal expert to counter the expert testimony
offered by the government’s witness, Michelle Watters. The topic of testimony appears to be the
dangers of PCBs to the environment and public health and involves means of abating that problem.
These are largely questions of the proper remedy, a topic that has already been addressed through
summary judgment. Accordingly, it appears that much this motion is now moot because the
testimony which Travers would have rebutted will likely not be relevant (or will be less relevant).
The government has not indicated that Watters will not testify, however, so I will reserve ruling
until the scope of the testimony and rebuttal is more clear.1

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As I have noted already in another context, these rulings are subject to change in the
event circumstances warrant revisiting the matters involved.
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2. Motion to Exclude Testimony of John Butler [636]
Some Defendants have moved to exclude the testimony of NCR’s expert John Butler on the
grounds that his opinions are improperly based on the scientific work of others. They assert that
Butler, who is not an expert in geostatistical modeling, used a geostatistical model to calculate the
remediation that would have been required had NCR been the only discharger of PCBs. This model
was crafted by a consulting firm whose employees are not disclosed experts in this litigation.
The Defendants argue that parties cannot incorporate scientific testimony into a case through
the testimony of someone who is not an expert in that scientific field. In Dura Automotive Sys. of
Ind., Inc. v. CTS Corp., the Seventh Circuit held that the Supreme Court’s Daubert test cannot be
satisfied by one who is purporting to be “the mouthpiece of a scientist of a different specialty.” 285
F.3d 609, 614 (7th Cir. 2002) (citing Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993)). It is
common for an expert to incorporate the work of other experts into his own opinions (for example,
a surgeon relying on a radiologist’s opinion), but the testifying expert must limit himself to his own
area of expertise. Thus, while the surgeon could use a radiologist’s opinion in forming his own
opinion, the surgeon could not testify about whether a radiologist committed malpractice; the
substance and methods of the radiologist are outside the surgeon’s area of expertise. Id.
In Dura Automotive, the proposed expert sought to testify that a facility was within the
“capture zone” of a contaminated well field. Although the expert was a hydrogeologist, he admitted
that he was not an expert in mathematical modeling, and the models upon which he relied for his
opinion were created by other employees of his consulting firm. Id. at 611-612. Those employees
were not disclosed as experts in a timely fashion, and thus their opinions were stricken. The
Seventh Circuit found that it was obvious from the stricken affidavits that the models involved
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significant technical expertise—expertise that the proposed expert lacked. Because the expert was
not competent to opine about the model, and because the model was crucial to his opinion, he could
not testify about his conclusions either. The court noted that the underlying models involved
significant amounts of professional discretion and “tinkering,” and so without testimony from the
model-makers themselves, the expert’s opinion would have “rested on air.” Id. at 615.
NCR argues that the assistance Butler received was more ministerial than expert. The
consulting firm’s employees simply used existing data and software to produce a geostatistical map.
I am satisfied that the matters raised in the motion in limine can be raised through cross-examination
and are not sufficient to warrant exclusion of an expert outright, at least at this point, which would
be a drastic remedy under the circumstances. This is a bench trial, and thus danger of prejudicing
the jury is not present. I may either exclude the testimony based upon a more complete record or
apply any objections to the expert’s testimony in deciding the proper weight to give it. The motion
will therefore be denied.
3. Motion to Exclude Undisclosed Expert Opinions of Dr. Craig Jones [641]
Some of the Defendants object in advance to what they fear will be new testimony offered
by NCR’s expert, Dr. Craig Jones. During a recent deposition, Jones indicated several times that,
in response to the rebuttal report, he and his team had been continuing to modify his opinions and
had been running additional tests to bolster his expert opinion. The Defendants argue that it would
be unfair to allow surprise expert testimony offered so long after the expert reports were filed. And
even though we are on the eve of trial, they still do not know what Jones’ new work and / or
testimony will comprise.
Although these objections are no doubt based on real concerns, I will refrain from ruling in
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advance that any portion of this expert’s testimony should be excluded. If it becomes clear that the
expert is changing his opinions in a way that prejudices the other parties, the objection may be
renewed at such time. For now, however, the motion is denied.
4. Motion as to the Admissibility of Certain Exhibits [645]
Plaintiffs seek admission of certain exhibits in advance of trial, but it appears that the parties
are continuing to work together to produce an exhibit list and explore any objections that have
arisen. Accordingly, I will deny the motion as premature.
5. Motion to Exclude Testimony Regarding John Strange Paper Mill [653]
Menasha has moved to exclude what it describes as speculative testimony regarding its
mill’s use of NCR paper in its production efforts. It states that it has substantial amounts of
testimony from live witnesses who will explain that the mill never used NCR broke in its production
process, and in fact it would not have made sense to do so. In contrast, the experts who have
suggested otherwise are relying merely on speculation and have no inside knowledge of the John
Strange mill’s internal operations.
Once again, I am satisfied that the objection raised goes to the weight of the evidence rather
than its admissibility. If the evidence is truly “speculative,” that can be the subject of crossexamination, particularly in a bench trial. NCR is correct that the relief sought essentially seeks a
ruling on the merits of the issue, and I conclude that such relief would be premature. The motion
will therefore be denied.
6. Motion to Exclude Expert Testimony of Gary Kleinrichert [656]
NCR moves to exclude the testimony of an expert proffered by other Defendants on the
question of NCR’s ability to pay any remediation required by the Unilateral Administrative Order.
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This line of testimony is potentially relevant in the context of the granting of a permanent
injunction. Although I have ruled that equitable factors do not play the same role in an enforcement
proceeding as they might in a traditional equitable action, even the United States has conceded that
equitable factors do play a role to the extent that enforcement of the UAO involves a permanent
injunction. Accordingly, the motion to exclude Kleinrichert’s testimony will be denied.
7. Motion to Exclude the Testimony of Dr. John Wolfe [658]
NCR and Glatfelter move to exclude the testimony of Georgia-Pacific’s expert, Dr. John
Wolfe. They argue that because GP has settled with the Plaintiffs (waiving all defenses and
accepting full liability), it no longer has a role to play in the upcoming trial on divisibility.
Although GP may have settled with the government, the divisibility question—whether and
how to divide the environmental harm— involves all of the PRPs, including GP. I am satisfied that
it retains a legal interest in this action, and its proposed expert will take only two hours, which will
come out of the governments’ time allotment. I therefore see no reason to exclude his testimony.
8. Motion to Strike Phase I Pre-Trial Stipulations Between the Plaintiffs and U.S. Paper [660]
Finally, NCR has moved to strike the pre-trial stipulations between the Plaintiffs and U.S.
Paper Mills Corp. In the stipulation, U.S. Paper admitted its liability under CERCLA and waived
all defenses. In exchange, the governments promised to seek performance of the UAO from NCR
or other parties, but not from U.S. Paper. NCR argues that this stipulation is, in effect, a settlement
between the government and U.S. Paper, and, as such, a consent decree needed to be filed and
formal approval procedures need to be followed.
U.S. Paper suggests that NCR’s objection is much ado about nothing. The stipulation is
simply a mechanism of streamlining issues prior to trial and is not a functional consent decree.
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Importantly, the stipulation contains a clause allowing the government to seek injunctive relief
against U.S. Paper in the event circumstances warrant it. In sum, the stipulation is not the kind of
formal settlement that requires additional procedures, and as such it will not be stricken.
In sum, all of the motions in limine [636, 641, 645, 653, 656, 658, 660] are DENIED, with
the exception that I will reserve ruling on the motion to exclude the testimony of Mark Travers
[533].
SO ORDERED this 28th day of November, 2012.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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