Total E&P USA, Inc. v. Marubeni Oil & Gas (USA), Inc. et al

REPLY in Support of 148 Sealed Event

S.D. Tex.January 22, 2018

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TOTAL E&P USA, INC. * CIVIL ACTION NO. Plaintiff * 4:16-cv-02674 * v. * JUDGE DAVID HITTNER * MARUBENI OIL & GAS (USA) INC. * Defendant * ************************************* MARUBENI OIL & GAS (USA) LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY OF SCOTT SEWELL Marubeni Oil & Gas (USA) LLC (“MOGUS”) submits this Reply to address briefly the Response in Opposition filed by Total E&P USA, Inc. (“TOTAL”) to MOGUS’s Motion in Limine. (Doc. 167). The Court should grant MOGUS’s underlying Motion (Doc. 148) and exclude the opinions of Mr. Sewell, TOTAL’s expert on the “federal laws, rules, and regulations.” TOTAL has failed to sufficiently oppose the specific objections raised by MOGUS, and Mr. Sewell’s opinions consist of improper legal conclusions or are otherwise irrelevant. DISCUSSION A. Mr. Sewell’s Testimony Is Not Needed to Explain Straightforward Regulations. Although it is the Court’s role to interpret the meaning and applicability of the relevant law, TOTAL argues that Mr. Sewell’s testimony will assist the jury in understanding and applying the federal regulations of BOEM/BSEE to this Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 1 of 8 2 lawsuit. Mr. Sewell’s testimony, however, is unnecessary. The BOEM/BSEE regulations are straightforward and govern: when decommissioning liabilities accrue,1 when lessees are and remain jointly and severally liable,2 and when lessees have rights to subrogation.3 Mr. Sewell’s testimony is no more needed to explain the regulations than is an expert’s testimony needed to set forth the elements of a contract claim. The regulations are unambiguous and written in plain English, and, if necessary, the Court, rather than Mr. Sewell, should explain their meaning to the jury.4 TOTAL also asserts that Mr. Sewell’s testimony will be beneficial to the jury because he will explain whether MOGUS is entitled to breach of contract and subrogation. TOTAL argues that, in the context of the regulations, such claims are “highly technical and complex.”5 TOTAL’s argument is misplaced. While the decommissioning operations themselves may be highly technical, the legal issues are not. Subrogation and breach of contract are routine legal claims and are not unique to the oil and gas industry or the BOEM/BSEE regulations. 1 See 30 CFR 250.1702. 2 See 30 CFR 250.1701; 30 CFR 556.710. 3 See 30 CFR 556.604. 4 See, e.g., U.S. v. Farinella, 558 F.3d 695, 700 (7th Cir. 2009) (“District judges, rather than witnesses, must explain to juries the meaning of statutes and regulations.”). 5 See TOTAL Opposition (Doc. 167), p. 9. Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 2 of 8 3 In addition, the cases cited by TOTAL for the proposition that testimony explaining federal regulations should be admitted differ significantly from this matter and are inapplicable. TOTAL relies on cases which allowed expert testimony on extremely complex areas of the law such as securities registration violations6 and the process and adequacy of labeling under the FDA regulations.7 Unlike the complex legal regimes and highly technical legal issues involved in those cases, Mr. Sewell’s testimony is not needed to assist the jury in understanding subrogation or breach of contract. These legal concepts are not highly technical or governed by any specific “complex regulatory process.” Mr. Sewell’s testimony as to how the jury should interpret the regulations is improper and will confuse the jury.8 It is a fundamental precept that expert testimony on the meaning and applicability of the relevant law is inadmissible.9 Moreover, the meaning of federal regulations is a question of law to be resolved by the court,10 and Mr. Sewell’s testimony encroaches on the exclusive authority of this Court to determine and apply the law. Mr. Sewell therefore should be barred from testifying. 6 United States v. Offill, 666 F.3d 168 (4th Cir. 2011) (noting that the specialized nature of the legal regimes and the complex concepts involving securities registration, registration exemption, and specific regulatory practices make it a typical case for expert testimony). 7 In re Mirena IUD Prod. Liabi. Litig., 169 F. Supp. 3d 396 (S.D.N.Y. 2016). 8 Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505 (2d Cir. 1977) (excluding expert testimony as to meaning of particular contractual terms and whether the party had complied with those terms). 9 BNY Mellon, N.A. v. Affordable Holdings, Inc. 2011 WL 2746301, n.1. (N.D. Miss. July 12, 2011) (collecting cases). 10 Bammerlin v. Navistar Int’l Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994). Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 3 of 8 4 B. Mr. Sewell’s Other Proffered Opinions Are Irrelevant, Unhelpful, and Prejudicial. TOTAL’s Opposition to MOGUS’s Motion in Limine serves to further demonstrate that Mr. Sewell’s testimony should be excluded. In its Opposition, TOTAL provides several examples of Mr. Sewell’s opinions which are irrelevant, unhelpful, prejudicial, and/or improper legal conclusions.11 For instance, the factual background and general information on BOEM/BSEE that TOTAL states Mr. Sewell will provide is basic and can be explained by fact witnesses. His testimony as to the alleged customs and practices of BOEM/BSEE also is irrelevant to the present issues. Similarly, the “steps” that Mr. Sewell alleges that MOGUS could have taken to protect its financial interests with ATP and the alleged delay of decommissioning to explore a sale of the CEPS to Shell have nothing to do with BOEM/BSEE regulations or the effect of the regulations, much less whether TOTAL is liable to MOGUS for its share of decommissioning expenses. All of these purported opinions therefore are improper. As noted above and in MOGUS’s underlying motion, Mr. Sewell also offers various legal opinions and conclusions drawn from the evidence, which are prohibited. His anticipated testimony as to what the regulations do and do not provide for is a clear attempt by TOTAL to present legal conclusions to the jury 11 See TOTAL’s Opposition (Doc. 167), pp. 4-5. Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 4 of 8 5 through its expert. For example, Mr. Sewell intends to testify as to the meaning and effect of 30 CFR 556.604, even though he admits that he knows of no examples of its application.12 Mr. Sewell’s opinion is therefore strictly his own legal conclusion, and his unsupported statement will be prejudicial if presented to the jury. Another legal conclusion TOTAL would like Mr. Sewell to testify about is “what decommissioning obligations TEP USA previously owed to the government.”13 Again, it is for this Court to decide whether TOTAL owed and still owes decommissioning obligations, not Mr. Sewell.14 Finally, TOTAL argues that certain testimony of Mr. Sewell should be admitted because MOGUS did not specifically seek to exclude it. TOTAL is incorrect. MOGUS sought to exclude all of Mr. Sewell’s testimony which includes his testimony regarding irrelevant “factual” matters discussed above and in TOTAL’s Opposition.15 All of Mr. Sewell’s anticipated testimony therefore has no bearing as to whether TOTAL is liable to MOGUS for its share of decommissioning expenses and is not helpful to the Court. Thus, it is not admissible. 12 See transcript excerpts from the October 26, 2017 deposition of Mr. Sewell attached hereto as Exhibit 1, 66:22-67:2. 13 See TOTAL’s Opposition (Doc. 167), p. 5. 14 See TOTAL’s Opposition (Doc. 167), p. 9. See also Exhibit 1 hereto, 69:18-23 (Mr. Sewell admitted in his deposition that TOTAL’s decommissioning obligations always “continue on”). 15 See TOTAL Opposition (Doc. 167), pp. 4-5. Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 5 of 8 6 C. TOTAL Failed to Timely Seek Exclusion of MOGUS’s Expert and Has Waived Any Objection to His Testimony. As shown in MOGUS’s Opposition to TOTAL’s Protective Motion to Strike Reciprocal Expert Reports and Testimony, TOTAL waived any objections it had to MOGUS’s expert witnesses’ qualifications and testimony by failing to bring a proper motion setting forth specific reasons for the exclusion in accordance with this Court’s deadlines. Doc. 162.16 TOTAL may not attempt to seek exclusion of MOGUS’s regulatory expert, Charles Schoennagel, in its opposition to MOGUS’s motion in limine regarding Scott Sewell. Furthermore, none of the reasons which TOTAL untimely asserts now for the exclusion of Mr. Schoennagel are valid. CONCLUSION For the foregoing reasons, and those previously asserted, MOGUS’s Motion in Limine to Exclude the Expert Testimony of Scott Sewell should be granted. 16 MOGUS fully adopts and incorporates by reference its Opposition to TOTAL’s Protective Motion to Strike Reciprocal Expert Reports and Testimony (Doc. 162). Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 6 of 8 7 Respectfully submitted, LOOPER GOODWINE P.C. /s/ Paul J. Goodwine Paul J. Goodwine (Attorney-in-Charge) LA Bar No. 23757; SDTX ID No. 437800 Holly O. Thompson LA Bar No. 31277; SDTX ID No. 2953818 Taylor P. Mouledoux LA Bar No. 31889; SDTX ID No. 1581156 650 Poydras Street, Suite 2400 New Orleans, Louisiana 70130 Telephone: (504) 503-1500 Telecopier: (504) 503-1501 pgoodwine@loopergoodwine.com hthompson@loopergoodwine.com tmouledoux@loopergoodwine.com -and- SCHONEKAS, EVANS, McGOEY & McEACHIN, LLC Kyle Schonekas LA Bar No. 11817; SDTX ID No. 305350 Joelle F. Evans LA Bar No. 23730; SDTX ID No. 436275 909 Poydras Street, Suite 1600 New Orleans, LA 70112 Telephone: (504) 680-6050 Telecopier: (504) 680-6051 kyle@semmlaw.com joelle@semmlaw.com Attorneys for Marubeni Oil & Gas (USA) LLC Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 7 of 8 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing pleading has been served on all counsel of record for the parties via e-mail, Federal Express and/or by electronic filing in the Court’s electronic filing system on this 22nd day of January, 2018. /s/ Paul J. Goodwine Paul J. Goodwine Case 4:16-cv-02674 Document 182 Filed in TXSD on 01/22/18 Page 8 of 8