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Chitayat v. Vanderbilt Assocs.

ELR Citation: 37 ELR 20272
Nos. No. 03-5314 (DRH)(MLO), (E.D.N.Y., 09/27/2007)

A district court granted in part and denied in part two motions in limine by a third-party defendant to bar testimony by plaintiffs' two expert witnesses in a Comprehensive Environmental Response, Compensation, and Liability Act §§107 and 113 cost recovery and contribution action. Expert testimony relying on the "Quick Domenico" fate and transport and the mass contaminant models is admissible where it is neither speculative nor based on assumptions that suggest bad faith. However, expert testimony on the Gore equitable factors, which are applied by courts to allocate response costs among liable parties, is excluded from trial because experts are precluded from stating ultimate legal conclusions and assuming an essentially judicial function. Additionally testimony concerning waste volume and character is admissible even if based on experience at other locations where it is not devoid of factual reference or reliable foundation. Experts’ testimony on the consistency of incurred response costs with the national contingency plan is excludable where such testimony is based on estimates and projections and not on the actual expenditures for specific work performed.