City of New York v. Exxon Mobil Corp.
City of New York v. Exxon Mobil Corp.
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
The City of New York (“the City”) alleges that a number of gasoline makers are strictly liable for their use and handling of the gasoline additive methyl tertiary butyl ether (“MTBE”).
Exxon Mobil Corporation (“Exxon”), the sole non-settling defendant in this case, moves in limine to exclude the testimony of the City’s expert witness Martin Tallett. Exxon argues that Tallett is unqualified, that his testimony is unreliable, and that he improperly supplemented his expert report. For the reasons that follow, Exxon’s motion is denied.
II. BACKGROUND
A.Scope of Testimony
The City offers Martin Tallett as an expert on two separate issues. First, the City has alleged several theories of tort liability, including defective product design. To prove its case, the City must show that “the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.”
B. Martin R. Tallett
A chemical engineer by training, Tallett has spent most of his forty-year career advising clients on technical and economic matters in the oil refining industry.
C. Tallett’s Proposed Ethanol Testimony
Tallett has prepared two expert reports on the use of ethanol. Tallett had already prepared a report for the plaintiffs in County of Suffolk v. Amerada Hess Corp., another case consolidated in this multidistrict litigation.
D. Tallett’s Proposed Market Share Testimony
Tallett has submitted a separate report on the issue of Exxon’s market share.
Tallett opined that he saw “a workable means for calculating market share” using gasoline sales reported by refiners and other “prime suppliers” on the U.S. Energy Information Administration’s Form 782C.
In his expert report, Tallett explained how to use Form 782C data but did not actually perform the calculation. As Tallett’s later declaration makes clear, however, this method generates a market share for Exxon approximately five times higher than the share calculated by Exxon’s expert.
III. APPLICABLE LAW
A. Motions in Limine
The Federal Rules of Evidence favor the admission of all relevant evidence.
B. Expert Witnesses
Federal Rule of Evidence 702 governs the admissibility of expert testimony. It states,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.27
The preliminary requirement of Rule 702 is that expert testimony be relevant, meaning that “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”
The Supreme Court’s 1993 decision in Daubert charged courts with ensuring that expert testimony “is not only relevant, but reliable.”
In assessing reliability, this Court is mindful that the Federal Rules of Evidence favor admissibility of expert testimony.
C. Expert Reports
Rule 26 of the Federal Rules of Civil Procedure requires that opposing parties receive notice of expert testimony in a report containing — among other things — “a complete statement of all opinions to be expressed and the basis and reasons for them.”
Under Rule 37, a court may refuse to allow testimony on a matter that a party failed to include in an expert report “unless the failure was substantially justified or is harmless.”
IV. DISCUSSION
There is no dispute that expert testimony will assist the jury in grasping the complex facts related to the use of ethanol in place of MTBE and the determination of Exxon’s market share. Exxon’s challenge goes to Tallett’s expertise and the relevance and reliability of his testimony.
A. Expertise
Conceding that ethanol “was a technologically possible alternative” to MTBE, Exxon seeks to narrow the dispute
Tallet’s experience and knowledge qualify him as an expert on engineering and cost considerations in the refining industry. Rule 702 “specifically contemplates the admission of testimony by experts whose knowledge is based on experience” rather than formal education.
Tallett proposes to testify that the industry perceived the supply costs of MTBE gasoline and ethanol-oxygenated gasoline to be fairly close.
Exxon also argues that Tallett is not qualified to help the jury understand its share of the gasoline market in Queens because he has admitted that he is unfamiliar with local gasoline distribution.
Exxon is free to use Tallett’s assumptions and admitted unfamiliarity with local distribution to impeach his credibility on cross-examination. But by virtue of his
B.Relevance
Although Exxon suggests otherwise,
Exxon additionally argues that because it has conceded that ethanol use is technically possible, Tallett’s testimony concerning ethanol is now irrelevant because he addresses only the technical feasibility of ethanol.
C. Reliability of Ethanol Testimony
Exxon next argues that Tallett’s method for comparing the cost of ethanol and MTBE is unreliable.
These public and private data sources provide a sufficient factual basis for Tallett’s conclusion. Moreover, it is reasonable that an expert wishing to assess an industry’s cost projections would review multiple cost studies developed both by the industry and its regulators. Exxon implies that the City’s attorneys may have skewed Tallett’s report by selectively providing him internal corporate studies obtained through discovery.
D. Reliability of Market Share Testimony
Tallett’s method of calculating market share from Form 782C gasoline
Nevertheless, Exxon claims that Tallett’s testimony is unreliable because he fundamentally misunderstood the nature of the Form 782C data.
Exxon focuses upon Tallett’s admission that he was initially mistaken about one aspect of the 782C reporting protocol: the rule governing two prime suppliers who sell gasoline to each other. Tallett believed that the first party to import gasoline into the state reported that gasoline on its Form 782C even if it sold the gasoline to another prime supplier, and thus that Form 782C data reflect the role of manufacturers and refiners to the greatest extent possible.
In a May 28, 2009 declaration attached to the City’s opposition to the instant motion, Tallett stated that he had compared the results of his original market share method against a similar method that had also been used by Dr. Burtis.
In its reply memorandum, Exxon argues that Tallet’s reconfirmation of his results introduced “a host of new comparative calculations” which are untimely and must be struck.
Tallett’s initial testimony was reliable. When Tallett discovered an error in his work he double-checked it in a timely fashion and supplemented the basis for his conclusions without altering the results. His actions were appropriate under the Federal Rules, his supplemented disclosure is proper, and Exxon has suffered no harm as Tallett’s conclusions and proposed testimony are unchanged. Accordingly, Tallett’s market share testimony is admissible, and Exxon’s motion to strike his supplementary disclosure is denied.
E. Completeness of the Expert Report
Finally, Exxon points to Tallett’s failure to present an actual percentage figure for Exxon’s market share in his report. The report provided a critique of defense expert methodologies, the basis for concluding that market share should be calculated from Form 782C data, and instructions on how to perform the calculation. But only in his declaration does Tallett put Exxon’s market share in a range of seventeen to twenty percent, five times higher than Exxon’s own estimate.
The absence of a calculated percentage share worked no unfair surprise on Exxon. Tallett opined that 782C data was a workable means to calculate market share, provided the basis for that conclusion, and spelled out precisely how to perform the exceedingly simple calculation. Exxon has copies of its own 782C forms and could easily obtain the aggregate 782C data. Upon receiving Tallett’s report, Exxon had all the information it needed to take one number and divide it by the other. Rule 26 prevents one party from “sandbagging” an opposing party with new evidence.
y. CONCLUSION
For the reasons set forth above, Exxon’s motion is denied. The Clerk of the Court is directed to close this motion (No. 00 MDL 1898, Docket # 2424, No. 04 Civ. 3417, Docket #200).
SO ORDERED.
. This Opinion assumes familiarity with facts discussed in this Court's previous opinions in this case. For a general discussion of the MTBE litigation, see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig. (“In re MTBE”), 379 F.Supp.2d 348, 364-67 (S.D.N.Y. 2005). Exxon recently contested whether the City owns the groundwater system and is the proper plaintiff in this case. On July 6, 2009, this Court resolved any potential dispute by joining the New York City Water Board Authority and the New York City Municipal Water Finance Authority as necessary plaintiffs. See Order, No. 337, City of New York v. Amerada Hess Corp., No. 00 MDL 1898, 04 Civ. 3417 (S.D.N.Y. July 6, 2009). For ease of understanding, I will continue to use “the City” to refer to all three plaintiffs.
. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983).
. See 12/9/08 Expert Report of Martin R. Tallett ("Ethanol Report”) at 4, Ex. A to 5/28/09 Declaration of Martin R. Tallett, plaintiff's expert ("Tallett Decl.”). For background information on oxygenated gasoline requirements see In re MTBE, No. 04 Civ. 5424, 2008 WL 1971538, at *l-*2 (S.D.N.Y. May 7, 2008).
. See In re MTBE, 379 F.Supp.2d 348, 377-78, 425 (S.D.N.Y. 2005).
. See Ethanol Report at 1.
. Tallett Decl. ¶ 7.
. Id. ¶ 9.
. Id. V 11.
. See 6/8/07 Expert Report of Martin R. Tallett, on file with chambers ("Suffolk Report”).
. See Ethanol Report at 2.
. See id. at 4; Suffolk Report at 54.
. Ethanol Report at 4.
. See 12/9/08 Expert Market Share Report of Martin R. Tallett, Ex. B to Tallett Decl. ("Market Share Report”).
. See id. at 3.
. Id. at 19-20.
. Id. at 3, 11-13.
. See id. at 13.
. See id. at 11-12.
. See id. at 3.
. See 2/13/09 Expert Report of Michelle M. Burtis, ¶¶ 28-29, Ex. E to Tallett Deck ("Burtis Report”).
. See Tallett Deck ¶ 23.
. See Fed.R.Evid. 402.
. Fed.R.Evid. 401.
. United States v. Ozsusamlar, 428 F.Supp.2d 161, 164 (S.D.N.Y. 2006).
. United States v. Chan, 184 F.Supp.2d 337, 340 (S.D.N.Y. 2002).
. Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir. 1996) (quoting Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)).
. Rule 702 — as amended — reflects the factors used by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See generally In re MTBE, 593 F.Supp.2d 549, 553-56 (S.D.N.Y. 2008) (laying out the history of Rule 702 and Daubert).
. Fed.R.Evid. 702. Accord Daubert, 509 U.S. at 597, 113 S.Ct. 2786 (requiring district courts to determine whether the evidence "is relevant to the task at hand”).
. Fed.R.Evid. 702.
. TC Sys. Inc. v. Town of Colonie, 213 F.Supp.2d 171, 174 (N.D.N.Y. 2002). Accord United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985).
. Daubert, 509 U.S. at 589, 113 S.Ct. 2786 (reliability of scientific expert testimony). Accord Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (applying Daubert standards to nonscientific expert testimony).
. Kumho Tire, 526 U.S. at 142, 119 S.Ct. 1167.
. Crowe v. Marchand, 506 F.3d 13, 17-18 (1st Cir. 2007).
. Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167.
. Id. at 152, 119 S.Ct. 1167.
. See Daubert, 509 U.S. at 588, 113 S.Ct. 2786. See also Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995) (noting that Daubert “advanced a bias in favor of admitting evidence short of that solidly ... proven to be unreliable”).
. Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
. Fed.R.Civ.P. 26(a)(2)(B).
. See Fed.R.Civ.P. 26(e). Thirty days before trial is a default rule. See Fed.R.Civ.P. 26(a)(3)(B).
. Fed.R.Civ.P. 37(c)(1).
. See Hein v. Cuprum, S.A. de C.V., 53 Fed.Appx. 134, 136 (2d Cir. 2002). See also Lorme v. Delta Air Lines, 251 Fed.Appx. 691, 692 (2d Cir. 2007) ("the premise ... that the preclusion sanction under Rule 37 is nearly automatic, is not correct”); Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir. 1994) ("The imposition of sanctions for abuse of discovery under Fed. R. Civ. Pro. 37 is a matter within the discretion of the trial court.”).
. 5/13/09 Memorandum of Law in Support of Defendant Exxon Mobil Corporation’s Motion to Exclude Testimony and Opinion of Martin Tallett at 9-10 ("Exxon Mem.”).
. See id. at 9-12.
. Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000).
. See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042-43 (2d Cir. 1995) (industrial engineer's testimony that the plaintiff was within the “breathing zone” of hot-glue fumes "easily qualifiefd] for admission under Daubert,” despite his lack of education on fume dispersal patterns, knowledge regarding the fumes’ chemical constituents or the glue vapor's concentration level, or experience performing or interpreting air quality studies). See also First Tennessee Bank Nat’l Ass’n v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001) (to the extent that an expert on international lending "may have lacked familiarity with some aspects of banking relationships ... such unfamiliarity merely affected the weight and credibility of his testimony, not its admissibility”).
. See Ethanol Report at 4.
. See Tallett Deck ¶¶ 9-10.
. See Exxon Mem. at 3-4.
. Tallett Decl. ¶ 25.
. Suffolk Report at 15.
. See Exxon Mem. at 14.
. See id. at 13-14.
. See Ethanol Report at 4. The majority of the Ethanol Report and an entire section of the Suffolk Report are concerned with the costs to refiners of substituting ethanol .for MTBE, the sourcing of ethanol, and even touch briefly on consumer perceptions of, and willingness to pay for, gasoline containing ethanol. See id. at 4-14; Suffolk Report at 57-75.
. See Exxon Mem. at 11.
. See Suffolk Report at 57-71.
. See Ethanol Report at 5-14.
. See Exxon Mem. at 11 ("Tallett’s 'methodology' was to review certain Defendant's documents-selected by Plaintiff’s trial counsel
.Tallett Decl. ¶ 51.
. Market Share Report at 11-12.
. Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167.
. See Exxon Mem. at 5.
. See Market Share Report at 11-12.
. See Tallett Decl. ¶¶ 30-32.
. See Exxon Mem. at 6 (quoting Tallet's statement at his deposition that "its something we really only homed in on yesterday”).
. See Tallett Deck ¶ 31.
. See id. ¶ 32.
. Id. Tallett checked the impact of these transactions by dividing refiners sales, as reported on Form 782A, into the total primary supply of gasoline from Form 782C reports. Exxon’s contention that by combining data from Forms 782A and 782C "Tallett has not even properly 'done the math’ ” is meritless. See 6/4/09 ExxonMobil's Reply Memorandum of Law in Further Support of its Motion to Exclude Testimony and Opinion of Martin
. See Tallett Decl. ¶ 33.
. Exxon Reply Mem. at 1-2.
. See Fed.R.Civ.P. 26(e)(2).
. Cf. Lava Trading, Inc. v. Hartford Fire Ins. Co., No. 03-Civ-7037, 2005 WL 4684238, at *4-*8 (S.D.N.Y. Apr. 11, 2005) (finding the opposing party "unquestionably prejudiced” where initial report revealed no methodology or underlying data, first supplemental report was identically vague, several more months passed before expert submitted substantially new supplemental materials); Major v. Astrazeneca, Inc., No. 5:01-CV-618, 2006 WL 2640622 at *6-*7 (N.D.N.Y. Sept. 13, 2006) (finding inordinate delay when experts failed to supplement reports for nearly two and a half years, until six months after the close of discovery).
. See Tallett Decl. ¶¶ 22-23.
. See Exxon Rep. Mem. at 1-2.
. Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284 (8th Cir. 1995). Accord Hyun v. South Kent School, No. Civ. 3:95CV2235, 1997 WL 597122, at *1 (D.Conn. Sept. 17, 1997).
. Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J. 1996). Accord Lorme v. Delta Air Lines, Inc., No. 03 Civ. 5239, 2005 WL 1653871, at *3 (S.D.N.Y. July 13, 2005).
. Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006).
. Ebewo v. Martinez, 309 F.Supp.2d 600, 607 (S.D.N.Y. 2004).
Reference
- Full Case Name
- In re METHYL TERTIARY BUTYL ETHER (\MTBE\") PRODUCTS LIABILITY LITIGATION. This Document Relates to: City of New York v. Exxon Mobil Corporation"
- Cited By
- 25 cases
- Status
- Published