Sacerdote et al v. New York University

REPLY MEMORANDUM OF LAW in Support re: 373 MOTION to Strike Document No. [358-1] Declaration of Mark I. Harrison. . Document

S.D.N.Y.December 20, 2018

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DR. ALAN SACERDOTE, et al., Plaintiffs, v. NEW YORK UNIVERSITY, Defendant. : : : : : : : : : : Case No.: 1:16-cv-06284-RWS ECF Case REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION T O STRIKE DECLARATION OF PLAINTIFFS’ PROFFERED EXPERT MARK HA RRISON Mark Muedeking (admitted pro hac vice) Ian C. Taylor (admitted pro hac vice) Jennifer K. Squillario (admitted pro hac vice) Adam J. Pié (admitted pro hac vice) DLA Piper LLP (US) 500 8th Street, NW Washington, DC 20004 (202) 799-4000 Brian Kaplan (BK4922) Evan D. Parness (EP6680) DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020 (212) 335-4500 Attorneys for Defendant Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 1 of 15 TABLE OF CONTENTS Page i INTRODUCTION ............................................................................................................. 1 ARGUMENT ......................................................................................................................... 1 I. Mr. Harrison Offers Only an Impermissible Legal Opinion. ............................................. 1 A. Courts Do Not Regularly Allow Expert Opinions on Recusal. .............................. 1 B. Mr. Harrison’s Opinions Do Not Raise A Mixed Question of Fact and Law. ........................................................................................................... 5 II. Mr. Harrison’s Opinions Are Unreliable. .................................................................... 7 A. The Conduct of The Board And Mr. Chesler Were Not At Issue In This Case. ......................................................................................................... 7 B. Mr. Harrison Blindly Adopted Plaintiffs’ Mischaracterizations of the Record. ........................................................................................................... 9 CONCLUSION ........................................ ....................................................................... 10 Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 2 of 15 ii TABLE OF AUTHORITIES Page(s) Cases Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011) ................................................................................... 3, 4 Baxter Int’l Inc. v. McGaw, Inc., No. 95 C 2723, 1996 WL 145778 (N.D. Ill. Mar. 27, 1996) .............................................. 9 Doe v. Cabrera, 134 F. Supp. 3d 439 (D.D.C. 2015) .............................................................................. 4, 5 E. Allen Reeves, Inc. v. Michael Graves & Assocs., Inc , No. 10-1393 (MAS) (TJB), 2015 WL 105825 (D.N.J. Jan. 7, 2015) .................................... 10 First Nat’l Bank of Louisville v. Lustig, No. 88-1682, 1993 WL 384974 (E.D. La. Sept. 22, 1993) ................................................ 3 Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257 (11th Cir. 2009)................................................................................... 3 GST Telecomms., Inc. v. Irwin, 192 F.R.D. 109 (S.D.N.Y. 2000) ...................................................................................... 5 Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH, 2018 WL 3993627 (S.D. Ill. Aug. 21, 018) ........................................... 2 Hurles v. Ryan, 188 F. Supp. 3d 907 (D. Ariz. 2016) ........................................................................... 3 In re Am. Int’l Grp., Inc. 2008 Sec. Litig., No. 08CV4772-LTS-DCF, 2015 WL 13648082 (S.D.N.Y. Mar. 19, 2015) ............................ 6 In re City of Houston, 745 F.2d 925 (5th Cir. 1984) ...................................................................................... 6 In re Evergreen Sec. Ltd., 363 B.R. 267 (Bankr. M.D. Fla. 2007) .............................................................................. 3 In re Evergreen Sec. Ltd., 384 B.R. 882 (Bankr. M.D. Fla. 2008) .......................................................................... 2, 3 In re Grievance Comm’n of U.S. Dist. Ct., Dist. of C nn., 847 F.2d 57 (2d Cir 1988) .......................................................................................... 3 Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 3 of 15 iii In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61 (S.D.N.Y. 2001) ............................................................... 2, 4, 5, 6 In re Thilman, 557 B.R. 294 (E.D.N.Y. 2016) ......................................................................................... 4 James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, No. 5:11-374-DCR, 2014 WL 1744848 (E.D. Ky. Apr. 30, 2 14).......................................... 9 Jefferson Cnty. v. Acker, 92 F.3d 1561 (11th Cir. 1996) .................................................................................... 6 Melendres v. Arpaio, No. CV-07-2513, 2015 WL 13173306 (D. Ariz. July 10, 2 15) ..................................... 4, 5, 6 Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611 (D.N.J. 1989) ................................................................................... 10 Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 716 F. Supp. 2d 220 (S.D.N.Y. 2010) ............................................................................... 5 Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006) .................................................................................. 6, 7 Trigon Ins. Co. v. U.S., 204 F.R.D. 277 (E.D. Va. 2001) ................................................................................. 9 U.S. v. City of Torrence, 163 F.R.D. 590 (C.D. Cal. 1995) .............................................................................. 10 U.S. v. Eyerman, 660 F. Supp. 775 (S.D.N.Y. 1987) .................................................................... 2, 5, 10 U.S. v. Rubashkin, No. 08-CR-1324-LRR, 2010 WL 4362455 (N.D. Iowa Oct. 27, 2010)............................. 1, 10 U.S. Commodity Futures Trading Comm’n v. Wilson, 13 Civ. 7884 (AT), 2016 WL 7229056 (S.D.N.Y. Sept. 30, 2016) ......................................... 5 Statutes & Other Authorities 28 U.S.C. § 455 ....................................................................................................... passim Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 4 of 15 INTRODUCTION Plaintiffs’ Opposition to NYU’s Motion to Strike fails to address two key flaws in Mark Harrison’s Declaration. First, although the Plaintiffs assert that “there is no controlling authority as to the admissibility of expert opinion on matters of judicial conduct and recusal,” the Second Circuit (and every other Circuit) has held that expert opinions on the law are impermissible. And, this Court has previously ruled on two occasion that expert opinions on whether 28 U.S.C. § 455 required recusal are impermissible opinions on the law. None of the cases Plaintiffs hold to the contrary, or even involve expert opinions in upport of a motion to recuse. Second, Mr. Harrison’s opinion is unreliable because it is based on his blind reliance on misrepresentations that would be obvious to anyone who independently reviewed the record in this case. The most obvious of those misrepresentatio s is the assertion that the conduct of the NYU Board of Trustees was a major issue at trial and was a central focus of this case. Mr. Harrison apparently has a habit of blindly relying on mischaracterizations by counsel. See U.S. v. Rubashkin, No. 08-CR-1324-LRR, 2010 WL 4362455, at *6 n. 7 (N.D. Iowa Oct. 27, 2010) (“Given [Mr. Harrison’s] proclivity to rely on defense counsel’s mischaracterization of the facts, the court declines to credit [his] affidavit[].”). In reality, Plaintiffs offer Mr. Harrison’s Declaration solely to whitewash their own false and misleading claims under the guise of an “expert opinion.” ARGUMENT I. Mr. Harrison Offers Only an Impermissible Legal Opinion. A. Courts Do Not Regularly Allow Expert Opinions on Recusal. Plaintiffs’ Opposition fails to identify any case in which any court admitted and considered an expert opinion on the question of whether a judge was disqualified under 28 U.S.C. § 455(a). This is because proffered expert opinions regarding whether a judge should Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 5 of 15 - 2 - disqualify herself under 28 U.S.C. § 455(a) are inappropriate legal opinions. Contrary to Plaintiffs’ assertion, Courts do not “regularly allow” opinions on whether 28 U.S.C. § 455(a) required a judge to recuse herself. In fact, this Court has twice previously ruled that such opinions are improper. See In re Initial Pub. Offering Sec. Litig. (“ In re IPO”), 174 F. Supp. 2d 61, 65-66 (S.D.N.Y. 2001); U.S. v. Eyerman, 660 F. Supp. 775, 781 (S.D.N.Y. 1987). While Plaintiffs claim that there is “significant authority supporting the use of such opinion,” none of Plaintiffs’ cases involve a motion to recuse under 28 U.S.C. § 455 or support Plaintiffs’ argument. Plaintiffs direct the Court to Hale v. State Farm Mut. Auto. Ins. Co., No. 12-0660-DRH, 2018 WL 3993627 (S.D. Ill. Aug. 21, 2018), a case that Plaintiffs claim involved “substantively similar circumstances.” (ECF No. 377 at 16-17.) The Hale opinion was not even remotely similar. First, the context of the Hale litigation, a complicated RICO class action case, makes clear the limited scope of Mr. Harrison’s opinion. Second, the opinion in Hale did not involve disqualification under 28 U.S.C. § 455. Third, in Hale, Mr. Harrison did not offer any opinions on the disputed RICO claims before the Court. (Hale ECF No. 903 at 7-8.) The court in Hale concluded that Mr. Harrison did not attempt to offer any legal opinions, which distinguishes Hale from In re IPO, Eyerman, and this case, where Mr. Harrison explicitly offers the legal opinions that “28 U.S.C. § 455(a) required Judge Forrest” to disclose her intent to return to Cravath, that as a matter of law, “recusal [w s] required” in this case, and explicitly opined on what “28 U.S.C. § 455(a) and (e)” would “not permit.” (Harrison Decl., ECF No. 358-1 at pp. 13-14 (emphasis added).) The other cases cited in Plaintiffs’ Opposition, likewise, do not support their claim that “Courts regularly rely on expert testimony in matters of judicial conduct.” In re Evergreen Sec. Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 6 of 15 - 3 - Ltd., 384 B.R. 882 (Bankr. M.D. Fla. 2008)1 is an opinion resolving a motion for sanctions based on an improperly filed motion to recuse. While that opinion does discuss the testimony of two experts, the opinion and available record in In re Evergreen Sec. Ltd. contained no evidence that the Court ever considered any expert opinions on whether recusal was required. See id. To the contrary, an earlier order denying the motion for recusal makes clear that the “experts’ testimony [were] of little value in the resolution of the Recusal Motion, which turns upon specific alleged facts.” In re Evergreen Sec. Ltd., 363 B.R. 267, 279 (Bankr. M.D. Fla. 2007).2 Similarly, the only cited areas where the Court or the Eleventh Circuit in Evergreen relied on the expert’s testimony concerned: (1) testimony on historical data concerning the number of judicial ethics complaints that are dismissed; (2) the reasons why judges hold ex parte hearings, and (3) the practice of disregarding improperly submitted evidence. Id. at 908; Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257, 1266-67, 1270 (11th Cir. 2009). Although Plaintiffs also offer the Court a one-page opinion issued by the United States District Court for the Eastern District of Louisiana in 1993 wherein the court permitted a former United States District Court Judge to offer testimony regarding judicial ethics, the court specifically permitted testimony only to the extent it did not contain “any instruction on the law.” First Nat’l Bank of Louisville v. Lustig, No. 88-1682, 1993 WL 384974, at *1 (E.D. La. Sept. 22, 1993). The only other case cited by Plaintiffs in upport of their claim that courts “regularly” consider opinions like Mr. Harrison’s—Amnesty Int’l USA v. Clapper, 638 F.3d 118, 128 (2d Cir. 2011)—did not involve judicial ethics at all. The Clapper case was a class action “facially 1 Defendants note that Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257 (11th Cir. 2009), which Plaintiffs al o cite, is the appellate case of In re Evergreen Sec. Ltd., 384 B.R. 882 (Bankr. M.D. Fla. 2008). All arguments concerning the use of expert opinions in I re Evergreen Sec. Ltd, would also apply to Ginsberg. 2 None of Plaintiffs’ remaining cases involved judicial recusal under 28 U.S.C. § 455 nor expert opinion on the requirements and application of federal statutes. See In re Grievance Comm’n of U.S. Dist. Ct. Dist. of Conn., 847 F.2d 57 (2d Cir 1988) (an attorney disciplinary action case involving the local state bar disciplinary regulations); Hurles v. Ryan, 188 F. Supp. 3d 907 (D. Ariz. 2016) (a due process claim allowing expert testimony solely on state ethics rules). Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 7 of 15 - 4 - challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978.” Id. at 121. In support of their motion to certify the class, plaintiffs submitted the testimony of Professor Stephen Gillers concerning the effect the statute would have on an attorney’s duty of confidentiality. The court, however, disregarded any opinion Professor Gillers offered concerning whether the statute actually “creates a sufficient risk of interception to trigger that ethical duty.” Id. at 128 n. 12. As the court explained, “[i]t is for us to determine whether it is reasonable for the attorneys (and other plaintiffs, for that matter) to alter their behavior based on their fear that their communications will be intercepted. That is, ultimately, a legal determination on which we need not accept . . . thecorrectness of plaintiffs’ [expert] submissions.” Id. (emphasis added). Plaintiffs cannot distinguish the two cases from this Court that are directly on point. Plaintiffs incorrectly claim In re IPO is distinguishable because the facts were “undisputed.” (ECF No. 377 at 24.) No court has ever limited the holding of In re IPO in recusal cases to matters where the facts are “undisputed.” See Melendres v. Arpario, No. CV-07-2513, 2015 WL 13173306, at *9 (D. Ariz. July 10, 2015) (“Because both declarations only purport to offer interpretations and analyses of § 455 and express th professors’ opinions on whether the Court must withdraw from this case, they are not appropriate for the Court to consider in deciding whether its recusal is appropriate.” (citing In re IPO, 174 F. Supp. 2d at 64)); Doe v. Cabrera, 134 F. Supp. 3d 439, 447 n. 12 (D.D.C. 2015) (striking an experts’ opinions on “judicial ethics and recusal rules” as “unnecessary and unconvincing.”) (citing In re IPO, 174 F. Supp. 2d at 64); In re Thilman, 557 B.R. 294, 301 (E.D.N.Y. 2016) (“When an expert undertakes to tell the [court] what result to reach, this does not aid the [court] in making a decision, but rather attempts to substitute the expert’s judgment for the [court’s].” (quoting In re IPO, 174 F. Supp. 2d at 64)); Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 8 of 15 - 5 - see also Pension Comm. of Univ. of Montreal Pension Pla v. Banc of Am. Sec., LLC, 716 F. Supp. 2d 220, 227 n. 18 (S.D.N.Y. 2010) (“In fact, every circuit has explicitly held that experts may not invade the court’s province by testifying on issues of law.”) (quoting In re IPO, 174 F. Supp. 2d at 64); U.S. Commodity Futures Trading Comm’n v. Wilson, 13 Civ. 7884 (AT), 2016 WL 7229056, at *8 (S.D.N.Y. Sept. 30, 2016) (same). Plaintiffs further incorrectly claim that the Eyerman decision is distinguishable because it turned on the expert’s reliance on “rank hearsay.” (ECF No. 377 at 24.) Mr. Harrison’s opinions are, likewise, based on rank double hearsay. And co trary to Plaintiffs’ claim, courts have repeatedly cited Eyerman for the proposition that expert testimony on legal ethics is not appropriate in support of motions to recuse. See GST Telecomms., Inc. v. Irwin, 192 F.R.D. 109, 111 (S.D.N.Y. 2000) (“Moreover, testimony of legal experts on ethics in the profession ‘is hardly an occasion for which credible experts supply legal opinions.’” (quoting Eyerman)); Melendres, 2015 WL 13173306, at *9 (expert “opinions on whether the Court must withdraw from this case . . . are not appropriate for the Court to consider in deciding whether its recusal is appropriate.” (citing Eyerman, 660 F. Supp. at 781)); Doe v. Cabrera, 134 F. Supp. 3d at 457 n. 12 (striking an experts’ opinions on “judicial ethics and recusal rules” as “unnecessary and unconvincing.”) (citing Eyerman, 660 F. Supp. at 781)). B. Mr. Harrison’s Opinions Do Not Raise A Mixed Question of Fact and Law. Plaintiffs are also wrong in their assertion that Mr. Harrison’s opinions concern “mixed questions of fact and law at issue in Judge Forrest’s recusal.” (ECF No. 377 at 7.) This Court has previously ruled that the decision of whether 28 U.S.C. § 455 requires recusal “involves nothing more than interpreting the statute given certain undisputed facts; it is solely a question of law.” In re IPO, 174 F. Supp. 2d at 65-66. Courts across the Federal Judiciary have likewise consistently held that opinions Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 9 of 15 - 6 - regarding whether recusal is required pursuant to 28 U.S.C. § 455(a) are pure questions of law. See e.g. Melendres, 2015 WL 13173306, at *9 (“The question presented on the recusal motion is whether 28 U.S.C. § 455 requires this Court to disqualify itself. This decision is solely a question of law.”); Jefferson Cnty. v. Acker, 92 F.3d 1561, 1581 (11th Cir. 1996), vacated on other grounds, 520 U.S. 1261 (1997) (“Whether a judge is disqualified, that is, must not take part in deciding a case, is a question of law.”); In re City of Houston, 745 F.2d 925, 927 (5th Cir. 1984) (same). Plaintiffs claim that because the facts in this case re “disputed,” the question of whether recusal was required becomes a “mixed question of fact and law.” Plaintiffs are wrong, as demonstrated in In re Am. Int’l Grp., Inc. 2008 Sec. Litig., No. 08CV4772-LTS-DCF, 2015 WL 13648082 (S.D.N.Y. Mar. 19, 2015). In I re Am. Int’l Grp., Inc. 2008 Sec. Litig., the movants filed a declaration from Professor William B. Rubenstein, “a leading national expert on class action law and practice,” in support of the motion t certify the class. 2015 WL 13648082, at *1 n. 2. Movants claimed that Professor Rubenstein’s testimony was offered as “support of their ‘factual’ demonstration that they will suffer prejudice in the absence of relief.” Id. The Court rejected Plaintiffs’ argument as a “disingenuous” attempt to avoid the established principle that “the testimony of an expert on matters of domestic law is inadmissible for any purpose” Id. (citing In re IPO, 174 F. Supp. 2d at 69). The only other authority Plaintiffs’ cite for their position that Mr. Harrison’s opinions present a “mixed question of fact and law” is Petrov v. Gonzales. (ECF No. 377 at 19 (quoting Petrov v. Gonzales, 464 F.3d 800 (7th Cir. 2006)).) Plaintiffs’ quotation from Petrov, read in context, does not support that position. In Petrov, the Court had already ruled out all of various grounds that the Immigration Judge would be required to recuse himself under § 455. 464 F.3d Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 10 of 15 - 7 - at 804. Therefore, while “[n]o legal rule forbids [the Immigration Judge’s] participation; whether recusal would have been prudent is not a pure question of law” that can be reviewed under the Real ID Act’s exception. Id. (emphasis added). Petrov does not state that recusal motions are a mixed question of fact and law. Rather, Petrov states that, having already determined that the record did not support the statutory requirements for recusal, the record contained no question of law that the Court could review under the Real ID Act. Id. II. Mr. Harrison’s Opinions Are Unreliable. A. The Conduct of The Board And Mr. Chesler Were Not At Issue In This Case. Plaintiffs’ claim that the actions of the Board of Trustees were “central” to issues in this case and that Mr. Chesler and the Board of Trustees w re “deeply involved” in the disputed actions is pure fantasy.3 Plaintiffs never brought any claims against Mr. Chesler or the Board of Trustees, never deposed any Trustees, never argued that the Board of Trustees breached their fiduciary duties to the Plans’ participants, and never argued that the Board had any fiduciary duty at all. The first and only time Plaintiffs make any of these arguments is in their motion to vacate. Plaintiffs and Mr. Harrison now claim that the Board of Trustees were so central to the case that Judge Forrest was required to recuse herself. The record, however, demonstrates that Plaintiffs were never concerned about the actions of the Board f Trustees until they believed it could help them escape yet another adverse judgment. There is no “extensive trial testimony submitted by declaration and deposition designation,” as Plaintiffs falsely claimed in their Opposition, to support their contention that the NYU Board of Trustees’ conduct was “central” to their case. (ECF No. 377 at 15.) Outside of 3 Now realizing that Mr. Chesler had no independent authority to act on behalf of NYU, Plaintiffs have now changed their arguments concerning who is the principal of NYU. Plaintiffs now agree that the Board of Trustees, and not Mr. Chesler, is the principal of NYU. (ECF No. 377 at 15.) Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 11 of 15 - 8 - the incorrect statements contained in their expert G ald Buetow’s declaration, see ECF No. 374 at 10-11, the only references to the Board of Trustees in the trial declarations were that the Board of Trustees created the Retirement Plan Committee.4 S e Michael Geist Decl., ECF No. 279-4 at ⁋ 69 (testifying that the Board of Trustees created th Retirement Plan Committee); Nancy Sanchez Decl., ECF No. 272-19 at ⁋ 5 (same); Margaret Meagher Decl., ECF 272-21 at ⁋ 11 (same); Martin S. Dorph Decl., ECF 272-22 at ⁋ 5 (same). Contrary to Plaintiffs’ Opposition, there was no testimony regarding “the Board’s role” in the alleged “breach of fiduciary duty” or regarding the “Board’s conduct” in this case. (ECF No. 377 at 15.) In their Opposition, Plaintiffs continue to peddle th false notion that the Board of Trustees’ conduct was critical to the case because the Board was required to approve any Investment Policy Statement (“IPS”) that the Retirement Committee adopted. (ECF No. 377 at 6-7.) The Retirement Plan Committee Charter states only that “the Committee may adopt” an IPS and that it “may be reviewed and accepted by the Finance Committee of the Board of Trustees of New York University.” (ECF No. 375-4, Exhibit D, PX466 at 2 (emphasis added).) Plaintiffs never even argued that the Board of Trustee’ failure to approve the IPS was an issue in this case. Plaintiffs offered no facts, nor didthe record contain any facts, that the Board of Trustees ever reviewed or were required to review and approve an IPS. Neither Plaintiffs’ opening remarks, closing statement, nor proposed findings of fact and conclusions of law contain any discussion of the Board of Trustees alleged role in reviewing and approving an IPS. ee ECF No. 326 at 10-64; ECF No. 342 at 1792-1856, 1917-1925; ECF No. 316. In fact, Plaintiffs never even mention the NYU Board of Trustees anywhere in their proposed findings of fact and 4 The only other references to the Board of Trustees can be found in Susanna Hollnsteiner’s deposition designation, most of which relate to the creation of the Retirement Plan Committee. (See ECF 272-5 at 129-130.) The only other reference contained in her deposition designation was that she “thought it was … [the] Board of Trustee ” who could modify the Plans’ recordkeeping agreements, but that she did not know if that was correct. (Id. at 148.) Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 12 of 15 - 9 - conclusions of law. (ECF No. 316.) To claim now that the issue was central to their case is disingenuous and false. B. Mr. Harrison Blindly Adopted Plaintiffs’ Mischaract erizations of the Record. As established in NYU’s Motion to Strike the Declaration of Mark Harrison (ECF No. 373), Mr. Harrison blindly relies on Plaintiffs’ gross mischaracterization of the facts in this case. Tellingly, while NYU provided numerous and detailed quotations of the trial testimony and evidence demonstrating Plaintiffs’ misrepresentations, Plaintiffs’ Opposition relies only on argument and unsupported paraphrased summaries of what Plaintiffs allege the documents and testimony state, and fails to provide citations to the record that support their false claims. Plaintiffs try to explain away the remarkable similarities between their memorandum of law and their expert’s opinion by citing to the vast mount evidence in this case, claiming it would be impossible for Mr. Harrison to review it all on his own and so they “winnow[ed] through these materials” to assist Mr. Harrison.” (ECF No. 377 at 5 n. 3.) While a party may provide the expert with the evidence and material upon which the expert can review and make his own independent findings, an expert’s opinion may not be “formed in reliance on ‘facts’ chosen and presented by an attorney advocating a particul r position.” Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 289-90 (E.D. Va. 2001). Accordingly, courts have rejected expert opinions like Mr. Harrison’s that lack independence from the counsel. See e.g. James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, No. 5:11-374-DCR, 2014 WL 1744848, at *7-8 (E.D. Ky. Apr. 30, 2014) (striking an expert’s opinion where a majority of the opinion was provided by the Defendant because it “lacks independence”); Baxter Int’l Inc. v. McGaw, Inc., No. 95 C 2723, 1996 WL 145778, at *4 (N.D. Ill. Mar. 27, 1996) (disregarding expert because he “did not independently prepare his expert report, allowing himself to be a ‘mouthpiece’ for plaintiffs’ Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 13 of 15 - 10 - attorneys”); see also E. Allen Reeves, Inc. v. Michael Graves & Assocs., Inc , No. 10-1393 (MAS) (TJB), 2015 WL 105825, at *8 (D.N.J. Jan. 7, 2015) (criticizing expert’s opinion because it did not “involve some independent verification of damage figures provided by counsel for Plaintiff”). Further, an expert’s opinions are inherently suspect where the opinions are “laced with the attorney’s intimate observations and opinions about the case,” Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611, 616 (D.N.J. 1989), where there is a ri k “that the lawyer will do the thinking for the expert, or, more subtly, that the expert will be influenced, perhaps appreciably, by the way the lawyer presents or discusses the information.” U.S. v. City of Torrence, 163 F.R.D. 590, 593 (C.D. Cal. 1995). Mr. Harrison’s Declaration makes clear that Plaintiffs did not merely “winnow” down the facts for Mr. Harrison. Plaintiffs dictated the facts to Mr. Harrison, which he blindly adopted to reach the conclusion Plaintiffs wanted him to reach.5 This is not the first time Mr. Harrison has allowed himself to be the mouthpiece of the attorneys who engaged him. See U.S. v. Rubashkin, 2010 WL 4362455, at *6 n. 7 (“Given [Mr. Harrison’s] proclivity to rely on defense counsel’s mischaracterization of the facts, the court declines to credit [his] affidavit[].”). CONCLUSION For the reasons set forth above and in Defendant’s motion to strike, Defendant respectfully requests that the Court exclude Mr. Harrison’s Declaration. 5 Mr. Harrison’s opinions are based largely on rank hearsay and speculation. For example, Mr. Harrison’s claim that Mr. Chesler and Judge Forrest have an “extremely close professional and working relationship” is based on third- party anecdotal accounts of Mr. Chesler and Judge Forrest’s relationship. (ECF No. 358-1 at pp. 4-5.) The remainder of Plaintiffs’ paragraph i merely cites evid nce that Mr. Chesler and Judge Forrest worked at the same firm, none of which suggest that their relationship was closer than any other member of the firm. (Id ) This Court need not accept as true Mr. Harrison’s speculative conclusions regarding Mr. Chesler and Judge Forrest’s relationship. See Lamborn v.Dittmer, 726 F. Supp. 510, 516 (S.D.N.Y. 1989) (while the court “must take all facts as provided by defendant as true for the purpose of ruling on their legal sufficiency, [the court] need not accept as fact mere conclusory speculation which lacks any factual s pport” (citing Eyerman, 660 F. Supp. at 781)). Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 14 of 15 - 11 - Respectfully submitted, /s/ Ian C. Taylor Mark Muedeking (admitted pro hac vice) Ian C. Taylor (admitted pro hac vice) Jennifer Squillario (admitted pro hac vice) Adam J. Pié (admitted pro hac vice) DLA PIPER LLP (US) 500 8th Street, NW Washington, DC 20004 (202) 799-4000 Brian Kaplan (BK4922) Evan D. Parness (EP6680) DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020 (212) 335-4500 Attorneys for Defendant Case 1:16-cv-06284-RWS Document 379 Filed 12/20/18 Page 15 of 15