Commercial Litigation and Arbitration

Expert Evidence on Summary Judgment

From Reichhold, Inc. v. U.S. Metals Refining Co., 2008 U.S. Dist. LEXIS 94584 (D.N.J. Nov. 20, 2008):

In deciding whether an issue of material fact exists, the court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party.... The court must consider the pleadings, depositions, answers to interrogatories, admissions, affidavits, etc. submitted by the moving party to determine if that party has established "an absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The submissions of the parties may include the testimony of experts, provided "the affiant is competent to testify on the matters stated" as required by Fed. R. Civ. P. 56(e). See also Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 (1993). Testimony from experts may be useful to determine if there is an issue of fact, but only if such testimony is undisputed (or not reasonably disputed) will it, on its own, establish the absence of a genuine issue of material fact. The court's function is not to make any determinations of credibility or to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there are no issues that require a trial, then judgment as a matter of law is appropriate.


Reichhold's allegation regarding the deposition of hazardous substances from "fugitive aerial emissions" and "aerial point source emissions" associated with USMR's operations is the subject of a typical "battle of the experts." Reichhold's expert, Dr. Pearson, maintains that USMR's smelting and refining operations led to aerial emissions that resulted in the deposition of hazardous materials across the Site.... Defendants' expert, Kirk Winges, maintains that Dr. Pearson's conclusions are erroneous and states that the sampling efforts and data supplied by Reichhold exhibit a pattern that could not be produced by aerial deposition.... Mr. Rhodes also disputes Dr. Pearson's findings on aerial emissions, alleging he made a "fundamental error" in the calculation of soil contamination from aerial emissions.... The court has previously held Mr. Pearson's testimony to be admissible under Daubert ... and Reichhold has not challenged Mr. Winges's testimony under Daubert, but the court will not weigh the evidence or make determinations of credibility on a motion for summary judgment, so, this, too, must be left for the finder of fact at trial.

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