United States District Court, S.D. New York
Robin Greenwald, Esq., Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, NY, Liaison Counsel for Plaintiffs.
Peter John Sacripanti, Esq., James A. Pardo, Esq., McDermott Will & Emery LLP, New York, NY, Liaison Counsel for Defendants.
Michael Axline, Esq., Miller, Axline, & Sawyer, Sacramento, CA, Counsel for the District.
Jeffrey J. Parker, Esq., Whitney Jones Roy, Esq., Sheppard, Mullin, Richter & Hampton LLP, Los Angeles, CA, Counsel for Defendants.
MEMORANDUM OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
On June 6, 2014, certain defendants in this action moved for partial summary judgment on claims brought by the Orange County Water District ("the District") at four designated focus trial sites, alleging that the District suffered no compensable injury or cognizable damages at those trial sites (the "Trial Sites Motion"). Also on June 6, 2014, all defendants moved for summary judgment on various grounds on all of the District's remaining claims (the "Omnibus Motion"). I have yet to rule on either of these two motions. In opposing these motions, the District relies on a declaration by its fate and transport modeling expert, Dr. Stephen Wheatcraft. Defendants now move to strike Dr. Wheatcraft's declaration, arguing that I should ignore the declaration for summary judgment purposes because it contradicts Dr. Wheatcraft's prior deposition testimony. For the following reasons, defendants' motion to strike is denied.
Defendants contend that I must disregard Dr. Wheatcraft's declaration because it creates a "sham issue of fact." The Second Circuit has emphasized that "a sham issue of fact exists only when the contradictions in an expert witness's testimony are inescapable and unequivocal in nature." Courts strike sham affidavits or declarations because "a deposition of a witness, subject to cross-examination, is generally more reliable than an affidavit [or declaration] submitted to oppose a summary judgment motion."
On January 16 and 17, 2012, Dr. Wheatcraft gave sworn deposition testimony in this matter. During those two days, he answered many questions regarding his ability to trace MTBE releases from specific stations to production wells. Dr. Wheatcraft stressed that he and his team had not "performed any analysis to look at any individual station as to... what the pathway is from that station to any ultimate well." However, Dr. Wheatcraft also stated repeatedly throughout his deposition that he created his fate and transport model using information regarding MTBE releases from each of the trial sites at issue in this action - and only from those trial sites. In essence, Dr. Wheatcraft represented consistently that information regarding the MTBE releases at all of the trial sites, including those at issue in the Trial Sites Motion, factored into his model, which posits that releases from all of the stations contributed to form an MTBE mass "moving from these stations... towards the wells and, in some cases, having reached the wells."
Dr. Wheatcraft's declaration is not an "inescapable and unequivocal" contradiction of his deposition testimony. In his declaration, he states:
A separate MTBE source term for each of the focus plume stations was added to the model at the location of the station. The source term for each focus plume station was calculated using actual data from MTBE detections in monitoring wells located at or associated with each individual focus plume station.... The MTBE source term thus represents the MTBE released to groundwater from each individual focus plume station through the aquifer to production wells within the District's service area, although the model does not isolate each station. 
Defendants read this paragraph, and several others in Dr. Wheatcraft's declaration, to indicate that Dr. Wheatcraft could track MTBE from individual stations to production wells, an ability defendants allege Dr. Wheatcraft disclaimed in his deposition. Defendants' argument fails, though, because Dr. Wheatcraft's declaration does not directly contradict his deposition testimony. His declaration states that his model does not isolate each station, and at his deposition he described his method of incorporating information about releases from all of the trial sites into his model. To be sure, Dr. Wheatcraft's declaration is tailored to defendants' summary judgment motions. However, the declaration does not flatly contradict anything that Dr. Wheatcraft said at his deposition. Accordingly, the declaration does not create a sham issue of fact. Whether the alleged issue of material fact is sufficient to defeat defendants' summary judgment motions will be addressed in a separate opinion.
For the foregoing reasons, defendants' motion to strike is DENIED.
The Clerk of the Court is directed to close the ...