United States v. Bobby Wolford Trucking & Salvage, Inc.

Opinion

WESTERN DISTRICT OF WASHINGTON UNITED STATES OF AMERICA, Plaintiff, v. C18-747 TSZ SALVAGE, INC., et al., Defendants.

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- 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 (2) The Clerk is directed to send a copy of this Minute Order to all counsel of record. Dated this 4th day of November, 2019. William M. McCool Clerk s/Karen Dews Deputy Clerk

1 BWT’s suggestion that Dr. Buckley was also required to consider the EPA’s Policy on 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., 2011 WL 2470670 at *6 (S.D. Ind. June 20, 2011). 2 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 exclude Dr. Buckley’s testimony.