The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM ORDER OF COURT
Presently before the Court for disposition are the following motions:
(i) MOTION TO EXCLUDE EXPERT TESTIMONY OF COLIN GUBBINS, with brief in support, filed by Plaintiff, Adani Exports Limited (Document Nos. 179 and 180), the RESPONSE IN OPPOSITION, filed by Defendant, AMCI-Export Corporation (Document No. 189), and the REPLY BRIEF filed by Plaintiff, Adani Exports Limited (Document No. 191);
(ii) MOTION TO EXCLUDE THE TESTIMONY OF EMILY S. MEDINE, with brief in support, filed by Defendant, AMCI-Export Corporation (Document Nos. 181 and 182), the BRIEF IN OPPOSITION filed by Plaintiff, Adani Exports Limited (Document No. 187), and the REPLY BRIEF filed by Defendant, AMCI-Export Corporation (Document No. 193);
(iii) MOTION TO EXCLUDE THE TESTIMONY OF CHARLES L. TROZZO, with brief in support, filed by Defendant, AMCI-Export Corporation (Document Nos. 183 and 184), the BRIEF IN OPPOSITION filed by Plaintiff, Adani Exports Limited (Document No. 188), and the REPLY BRIEF filed by Defendant, AMCI-Export Corporation (Document No. 193); and
(iv) MOTION TO EXCLUDE EXPERT TESTIMONY OF MARK GLEASON, with brief in support, filed by Plaintiff, Adani Exports Limited (Document Nos. 185 and 186), the RESPONSE IN OPPOSITION, filed by Defendant, AMCI-Export Corporation (Document No. 190), and the REPLY BRIEF filed by Plaintiff, Adani Exports Limited (Document No. 192).
The matters have been fully briefed and are ripe for disposition.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which requires an expert witness to have "specialized knowledge" regarding the area of testimony.*fn1 The United States Court of Appeals for the Third Circuit has explained, "The basis of this specialized knowledge can be practical experience as well as academic training and credentials," and "[w]e have interpreted the specialized knowledge requirement liberally." Betterbox Commc'ns Ltd. v. BRANDSTATTER Techs., Inc., 300 F.3d 325, 327-28 (3d Cir. 2002) (internal citations omitted). The Federal Rules of Evidence embody a strong preference for admitting any evidence that may assist the trier of fact. Id.; see also Fed.R.Evid. 401 (defining "relevant evidence" to mean "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence") (emphasis added)). Moreover, Rule 702 "has a liberal policy of admissibility." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir .1997).
When faced with a proffer of expert testimony, the Court must determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). The United States Supreme Court in Kumho Tire, Ltd. v. Carmichael, 526 U.S. 137, 147 (1999), extended these gatekeeping requirements to all expert testimony. In performing its gatekeeping function to determine whether an expert's report is relevant and reliable under Daubert and Rule 702, "the court is not to weigh the evidence relied upon or determine whether it agrees with the conclusions reached therein. . . . Determinations regarding the weight to be accorded, and the sufficiency of, the evidence relied upon by the proffered expert are within the sole province of the jury." Walker v. Gordon, 46 F. App'x 691, 695 (3d Cir. 2002) (citing Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983) ("Where there is a logical basis for an expert's opinion testimony, the credibility and weight of that testimony is to be determined by the jury, not the trial judge.")).
CHALLENGES TO AMCI-EXPORT'S PROPOSED EXPERTS
A. MOTION TO EXCLUDE EXPERT TESTIMONY OF COLIN GUBBINS (Document No. 179)
Plaintiff, Adani Exports Limited ("Adani") seeks to exclude "most" of the expert opinions offered in the expert report of Colin Gubbins ("Gubbins"), a damage expert retained by Defendant AMCI-Export Corporation ("AMCI-Export"). Specifically, Adani seeks to exclude the opinion of Gubbins in four (4) areas: (i) his opinion with regard to the "reasonableness" of the cover efforts of Adani; (ii) his "comments and opinions" with regard to the market for coal in late 2003 and 2004; (iii) his testimony with regard to market prices for coal and freight; and (iv) his opinion about the practices of "coal traders like Adani" and the legal effect of the terms and Adani's contract with GNFC.
1. The Opinion of Gubbins With Regard to the "Reasonableness" of the Cover Efforts of Adani
In his expert report, Gubbins opines as follows:
First, the transactions that are the basis of Adani's "cover" damages were not made "without unreasonable delay" after Adani learned of the alleged AMCI Export breach in March, 2004. Adani sent it's (sic) default notice to AMCI Export on March 15, 2004, and the so-called "cover" coal was purchased by it, for the most part, some six months later, and was supplied by Adani not to GNFC, but to GEB and MSEB. To wait so many months to acquire "cover" coal in a rising market does not constitute prudent, commercially reasonable or good faith conduct. If Adani was to cover, it should have done so in March when it alleges that it learned of the alleged breach and when it actually sent AMCI Export a default notice.
Expert Report of Colin Gubbinsat 7 (Document No. 161-2).
Initially, Adani objects to this opinion on the basis that "the keystone for all his opinion concerning Adani's damages and mitigation efforts" is March 15, 2004, a date provided to him by counsel for AMCI Export. This argument can be summarily rejected. The factual record presented to the Court actually contains three (3) separate and conflicting dates regarding when Adani knew of the alleged default. In the Complaint and First Amended Complaint, Adani specifically alleges the following:
On March 15, 2004, Adani sent AMCI Export a formal written notice advising AMCI Export that it was in default of its obligations to deliver steam coal under the terms of the parties' agreement.
Complaint, ¶ 25; First Amended Complaint, ¶ 32 (emphasis added). The record also contains a May 7, 2004, letter from Adani to AMCI-Export in which Adani stated that it had already purchased cover coal as a result of AMCI-Export's alleged "breach of contract" and encloses a "debit note" for $7,644,000.00, which represents Adani's alleged cost of its cover purchases. Now, in its Brief, Adani contends that "it was not until June 2004 that Adani started to realize that AMCI-Export might not ever deliver coal." Adani Brief, at 12.
Clearly, the record contains inconsistent factual positions with regard to the date of Adani's knowledge of any alleged default. An expert is permitted to base his opinion on a particular version of disputed facts, which is subject to cross examination. The weight to be accorded that opinion is a question to be determined by the jury. Perez v. Townsend Eng'g Co., 545 F. Supp. 2d 461, 465 (M.D. Pa. 2008) (quoting Wakler v. Gordon, 46 Fed. Appx. 691, 696 (3d Cir. 2002)). Gubbins has fully set forth the factual information upon which he bases his opinion. Accordingly, the Court finds and rules that it is not improper for Gubbins to measure the reasonableness of Adani's cover from March 15, 2004.
Next, Adani asserts that Gubbins has failed to articulate how the timing of Adani's alleged "cover" purchases should be judged and that the decision with regard to when to purchase coal is subjective and, therefore, not subject to expert testimony. The Court cannot agree. The reasonableness of a party's alleged cover purchases is a proper subject of expert testimony. See, e.g., Upsher-Smith Labs, Inc. v. Mylan Labs, Inc., 944 F. Supp. 1411, 1432-33 (D. Minn. 1996) (considering expert opinion regarding the reasonableness of parties' attempt to cover pursuant to UCC § 2-712.). Based on Gubbins' experience of purchasing coal and evaluating coal supply contracts, the Court finds that Gubbins is capable of applying his knowledge to reliably evaluate and discuss the customary practices of coal traders in the ...