UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

In re: 

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO, 

as representative of 

THE COMMONWEALTH OF PUERTO RICO, et al.,

Debtors.1

PROMESA 

Title III 

No. 17-BK-3283-LTS 

(Jointly Administered) 

In re: 

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO, 

as representative of 

PUERTO RICO ELECTRIC POWER AUTHORITY,

Debtor. 

PROMESA 

Title III 

No. 17-BK-4780-LTS 

(Jointly Administered) 

Re: ECF No. 3580 

UNIÓN DE TRABAJADORES DE LA INDUSTRIA 

ELÉCTRICA Y RIEGO, 

Movant, 

 v. 

PUERTO RICO ELECTRIC POWER AUTHORITY,

Respondent. 

1

 The Debtors in these Title III Cases, along with each Debtor’s respective Title III case number 

and the last four (4) digits of each Debtor’s federal tax identification number, as applicable, are 

the (i) Commonwealth of Puerto Rico (Bankruptcy Case No. 17-BK-3283-LTS) (Last Four Digits 

of Federal Tax ID: 3481); (ii) Puerto Rico Sales Tax Financing Corporation (“COFINA”) 

(Bankruptcy Case No. 17-BK-3284-LTS) (Last Four Digits of Federal Tax ID: 8474); (iii) Puerto 

Rico Highways and Transportation Authority (“HTA”) (Bankruptcy Case No. 17-BK-3567-LTS) 

(Last Four Digits of Federal Tax ID: 3808); (iv) Employees Retirement System of the Government 

of the Commonwealth of Puerto Rico (“ERS”) (Bankruptcy Case No. 17-BK-3566-LTS) (Last 

Four Digits of Federal Tax ID: 9686); (v) Puerto Rico Electric Power Authority (“PREPA”) 

(Bankruptcy Case No. 17- BK-4780-LTS) (Last Four Digits of Federal Tax ID: 3747); and (vi) 

Puerto Rico Public Buildings Authority (“PBA”) (Bankruptcy Case No. 19- BK-5523-LTS) (Last 

Four Digits of Federal Tax ID: 3801) (Title III case numbers are listed as Bankruptcy Case 

numbers due to software limitations). 

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DEBTOR’S OPPOSITION TO UTIER’S MOTION IN LIMINE TO EXCLUDE EXPERT 

TESTIMONY OF GLENN R. GEORGE

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TABLE OF CONTENTS 

Page 

PRELIMINARY STATEMENT .................................................................................................... 1 

BACKGROUND ............................................................................................................................ 3 

LEGAL STANDARD ..................................................................................................................... 4 

ARGUMENT .................................................................................................................................. 7 

I. ALL ATTEMPTS TO EXCLUDE DR. GEORGE’S TESTIMONY FAIL BECAUSE 

THEY GO TO WEIGHT AND NOT ADMISSIBILITY................................................... 9 

A. Mere Disagreement Between Expert Witnesses Does Not Justify Exclusion ........ 9 

B. The Sources and Methods Used by Dr. George Were Reliable, and Exclusion 

is Therefore Inappropriate ..................................................................................... 11 

CONCLUSION ............................................................................................................................. 15 

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TABLE OF AUTHORITIES 

 Page(s) 

CASES

58 Swansea Mall Dr., LLC v. Gator Swansea Prop., 

LLC, No. 15-13538-RGS, 2017 WL 9885338 (D. Mass. Sept. 20, 2017) ................................5 

Bradley v. Sugarbaker, 

809 F.3d 8 (1st Cir. 2015) ..........................................................................................................4 

City of Chi. v. Westchester Fire Ins. Co., 

No. 08 C 5535, 2010 WL 3516066 (N.D. Ill. Sept. 1, 2010) ...................................................11 

Cox v. Zurn Pex, Inc. (In re Zurn Pex Plumbing Prods. Liab. Litig.), 

644 F.3d 604 (8th Cir. 2011) .....................................................................................................5 

Cusack v. BendPak, Inc., 

No. 4:17-cv-00003-DCN, 2018 WL 3939318 (D. Idaho Aug. 15, 2018) ................................11 

Daubert v. Merrell Dow Pharms., Inc., 

509 U.S. 579 (1993) ...................................................................................................................5 

Feliciano-Hill v. Principi, 

439 F.3d 18 (1st Cir. 2006) ............................................................................................9, 10, 11 

Holbrook v. Lykes Bros. S.S. Co., 

80 F.3d 777 (3d Cir. 1996).......................................................................................................10 

In re Mushroom Direct Purchaser Antitrust Litig., 

No. 06-0620, 2015 WL 5767415 (E.D. Pa. July 29, 2015) .......................................................9 

Kumho Tire Co. v. Carmichael, 

526 U.S. 137 (1999) ...........................................................................................................4, 5, 6 

Lawes v. CSA Architects & Eng’rs LLP, 

963 F.3d 72 (1st Cir. 2020) ........................................................................................................6 

Lightfoot v. MXEnergy Elec., Inc. (In re MBS Mgmt. Servs., Inc.), 

690 F.3d 352 (5th Cir. 2012) .....................................................................................................5 

Marrero-Rolon v. Autoridad de Energia Electrica, 

No. 15-1167 (JAG), 2018 WL 8805485 (D.P.R. Sept. 10, 2018) .............................................5 

Provanzano v. MTD Prods. Co., 

No. 15-11720-NMG, 2016 WL 6089685 (D. Mass. Oct. 17, 2016) ........................................12 

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Rivera Romero v. Inspira Behav. Care, 

No. 16-2721 (CVR), 2020 WL 402274 (D.P.R. Jan. 23, 2020) ............................................7, 8 

Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 

161 F.3d 77 (1st Cir. 1998) ......................................................................................................12 

United States ex rel. Jones v. Brigham & Women’s Hosp., 

678 F.3d 72 (1st Cir. 2012) ........................................................................................................6 

United States v. Brown, 

415 F.3d 1257 (11th Cir. 2005) .................................................................................................5 

United States v. Martinez-Armestica, 

846 F.3d 436 (1st Cir. 2017) ......................................................................................................5 

STATUTES & RULES

48 U.S.C. §§ 2101–2241 ..................................................................................................................1 

PROMESA § 106(e) ....................................................................................................................1, 9 

Fed. R. Civ. P. 26(a)(2)(B) ..........................................................................................................3, 4 

Fed. R. Evid. 702 .....................................................................................................................4, 5, 6 

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To the Honorable United States District Court Judge Laura Taylor Swain: 

The Financial Oversight and Management Board for Puerto Rico (the “Oversight Board”), 

as the sole Title III representative of the Puerto Rico Electric Power Authority (“PREPA,” or the 

“Debtor”), pursuant to Section 315(b) of the Puerto Rico Oversight, Management, and Economic 

Stability Act (“PROMESA”),2 respectfully submits this opposition (the “Opposition”) to the Unión 

de Trabajadores de la Industria Eléctrica y Riego’s (“UTIER”) Motion in Limi[n]e to Exclude 

Expert Testimony of Glenn R. George [ECF No. 3573]3 (the “Motion”), and respectfully states as 

follows: 

PRELIMINARY STATEMENT 

1. The Oversight Board intends to offer the expert testimony of Dr. Glenn George in 

connection with PREPA’s confirmation. The Oversight Board appreciates that UTIER believes 

PREPA’s unmet capital needs and fragile infrastructure show PREPA cannot afford to allocate 

additional charges to repay unsecured debt. (See Mot. ¶ 25). UTIER is certainly entitled to argue 

at confirmation that creditors are being paid too much once PREPA’s antiquated and inefficient 

equipment is considered. That, however, is a different issue than whether Dr. George’s expertise 

in the utility rate setting is admissible. The setting of rates by public authorities is a complex 

undertaking, and Dr. George’s expertise in the process and knowledge of the relevant concerns is 

certainly helpful. UTIER’s disagreement with Dr. George’s reliance on the certified fiscal plan 

and the fiscal plan’s substance, does not render Dr. George’s report inadmissible, especially in 

view of PROMESA § 106(e). 

2. Among other things, Dr. George intends to testify the methodology used to 

2

 PROMESA is codified at 48 U.S.C. §§ 2101–2241. 

3

 Docket references contained herein shall refer to the docket for Case No. 17-4780 unless 

otherwise specified. 

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determine the Revenue Envelope and the Legacy Charge was appropriate.4 Dr. George is well 

qualified to offer these opinions. Since he obtained his PhD in Public Policy from Harvard 

University,5 Dr. George has worked continuously for 28 years as an economic consultant, advisor, 

and expert in the energy section. His past work includes working on behalf of utility companies, 

public utility commissions, investors, creditors, litigants, intervenors, and government agencies in 

the arenas of utility ratemaking, cost recovery, and associated financial projections. 

3. UTIER has filed a limited motion to exclude the anticipated testimony of Dr. 

George. Likely recognizing Dr. George is well-qualified to offer the opinions expressed in his 

initial report, UTIER does not challenge Dr. George’s qualifications. Beyond this, UTIER does 

not challenge the majority of the opinions Dr. George gives in his report. In fact, UTIER only 

challenges three of Dr. George’s opinions: (1) the reasonableness of the Fiscal Plan’s (defined 

below) fuel forecast; (2) the affordability analysis underlying the Revenue Envelope and Legacy 

Charge; and (3) the ability of PREPA to continue to operate with the imposition of the Legacy 

Charge. 

4. None of the challenges UTIER raises bears on admissibility. Indeed, each 

challenge advocates for the exclusion of Dr. George’s testimony merely because UTIER’s expert 

disagrees with Dr. George. Disagreement between expert witnesses can never serve as a basis to 

exclude expert testimony. This alone is fatal to UTIER’s Motion. But UTIER’s Motion suffers 

from additional defects. It seeks to exclude expert testimony in view of Dr. George’s (1) alleged 

4

 The “Revenue Envelope” and “Legacy Charge” shall have the meaning ascribed to them in the 

Modified Second Amended Title III Plan of Adjustment of the Puerto Rico Electric Power 

Authority [ECF No. 3296] (as it may be amended, modified, or supplemented, the “Plan”). 

5 Prior to his PhD, Dr. George received a bachelor’s degree in mechanical engineering from Cornell 

University and then a master’s degree in business administration from the same university. 

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failure to consider certain variables, (2) unexpressed opinion as to the affordability analysis 

underlying the Legacy Charge, and (3) opinion that PREPA will be able to continue to operate 

with the imposition of the Legacy Charge. These arguments do not go to whether Dr. George’s 

anticipated testimony is admissible, but instead relate to the weight Dr. George’s opinion will be 

given by the trier of fact. 

5. UTIER’s Motion should be denied. 

BACKGROUND 

6. On March 1, 2023, the Oversight Board filed the Plan. Following submission of 

the Plan, and as subsequently amended, the Court established a schedule and procedures relating 

to confirmation of the Plan, including a timeline for parties to file preliminary witness lists. See

Third Amended and Restated Order Establishing, Among Other Things, Procedures and Deadlines 

Concerning Objections to Confirmation and Discovery in Connection Therewith [ECF No. 3565] 

(the “Confirmation Procedures Order”). 

7. Pursuant to the Confirmation Procedures Order, parties in interest seeking to proffer 

expert testimony at the confirmation hearing on the Plan were required to file opening expert 

disclosures by April 14, 2023 and opening expert reports on or before April 28, 2023. 

Confirmation Procedures Order ¶¶ 24-25. In accordance with the Confirmation Procedures Order, 

on April 14, 2023, PREPA filed the Debtor’s Identification of Expert Witnesses [ECF No. 3394] 

(the “Identification of Experts”). Therein, PREPA identified that Dr. Glenn George may provide 

opinion testimony pursuant to Fed. R. Civ. P. 26(a)(2)(B). Identification of Experts ¶ 1(a). 

8. Specifically, PREPA identified that “Dr. George may provide testimony regarding 

(i) the methodology applied by the Oversight Board in determining the Legacy Charge 

incorporated in the Plan of Adjustment for the Puerto Rico Electric Power Authority (as it may be 

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amended, modified, or supplemented, the ‘Plan’), (ii) the reasonableness of the Legacy Charge in 

balancing stakeholder interests and risks, and (iii) the consistency of the Legacy Charge and the 

methodology used to determine the Legacy Charge with principles of just and reasonable rates.” 

Id.

9. Thereafter, in accordance with the Confirmation Procedures Order, on April 28, 

2023, PREPA filed the Debtor’s Opening Expert Report and Disclosures [ECF No. 3418] (the 

“Opening Expert Reports”). Therein, the Debtor submitted the Expert Report of Glenn R. George, 

MBA, PE, PhD [ECF No. 3418-1] (the “George Report”). 

10. On June 2, 2023, UTIER filed the Motion seeking to exclude the expert testimony 

of Dr. George.6 

LEGAL STANDARD 

11. Federal Rule of Evidence 702 governs the admission of expert testimony and 

permits experts qualified by their “knowledge, skill, experience, training, or education” to testify 

where their “scientific, technical, or other specialized knowledge will help the trier of fact to 

understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702; see, e.g., Bradley v. 

Sugarbaker, 809 F.3d 8, 16 (1st Cir. 2015). Rule 702 requires that “the testimony be (1) based 

upon sufficient facts or data, (2) the product of reliable principles and methods, and (3) that the 

witness apply the principles and methods reliably to the facts of the case.” Bradley, 809 F.3d at 16 

(quotation marks omitted).

12. The Court has broad discretion to permit expert testimony. See Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 142 (1999) (“[T]he law grants a district court the same broad latitude 

6

 Dr. George also submitted a rebuttal expert report. See Rebuttal Report of Glenn R. George, 

MBA, PE, PHD, ECF No. 3504-3. UTIER has only moved to exclude Dr. George’s anticipated 

testimony as it relates to the initial George Report. 

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when it decides how to determine reliability as it enjoys in respect to its ultimate reliability 

determination.”). Where a court sits as factfinder, “[m]ost of the safeguards provided for in 

[Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] are not as essential . . . .” Lightfoot 

v. MXEnergy Elec., Inc. (In re MBS Mgmt. Servs., Inc.), 690 F.3d 352, 357-58 (5th Cir. 2012) 

(quotation marks omitted). Thus, a “cautious approach [to exclusion under Daubert] is even more 

warranted in a bench trial.” 58 Swansea Mall Dr., LLC v. Gator Swansea Prop., LLC, No. 15-

13538-RGS, 2017 WL 9885338, at *1 (D. Mass. Sept. 20, 2017) (citing Cortes-Irizarry v. 

Corporacion Insular de Seguros, 111 F.3d 184, 188 (1st Cir. 1997)).7

13. Rule 702 “‘establishes a standard of evidentiary reliability’” for expert testimony 

regardless of whether the testimony concerns scientific, technical, or other specialized knowledge. 

Kumho, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 589-90). Where proffered expert testimony 

pertains to “specialized knowledge rather than scientific expertise, the ‘expert’s experience and 

training bear a strong correlation to the reliability of the expert’s testimony.’” United States v. 

Martinez-Armestica, 846 F.3d 436, 444 (1st Cir. 2017) (quoting United States v. Jones, 107 F.3d 

1147, 1155 (6th Cir. 1997)); see also Fed. R. Evid. 702 Advisory Committee’s Note to 2000 

Amendments (“In certain fields, experience is the predominant, if not sole, basis for a great deal 

of reliable expert testimony.”); Kumho, 526 U.S. at 150 (in cases involving technical or other 

specialized knowledge, “the relevant reliability concerns may focus upon personal knowledge or 

7 See also Cox v. Zurn Pex, Inc. (In re Zurn Pex Plumbing Prods. Liab. Litig.), 644 F.3d 604, 613 

(8th Cir. 2011) (“[t]he main purpose of Daubert exclusion is to protect juries from being swayed 

by dubious scientific testimony,” so a “less stringent application of Daubert in bench trials” is 

appropriate); United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005) (Daubert has relaxed 

application to bench trials “where the judge is serving as factfinder and we are not concerned about 

‘dumping a barrage of questionable scientific evidence on a jury’” (citing Allison v. McGhan Med. 

Corp., 184 F.3d 1300, 1310 (11th Cir. 1999)); Marrero-Rolon v. Autoridad de Energia Electrica, 

No. 15-1167 (JAG), 2018 WL 8805485, at *2 (D.P.R. Sept. 10, 2018) (same). 

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experience”). Accordingly, “[i]f a witness relies primarily on experience, she must ‘explain how 

that experience leads to the conclusion reached, why that experience is a sufficient basis for the 

opinion, and how that experience is reliably applied to the facts.’” United States ex rel. Jones v. 

Brigham & Women’s Hosp., 678 F.3d 72, 94 (1st Cir. 2012) (quoting Fed. R. Evid. 702 Advisory 

Committee’s Note).

14. Rule 702, however, concerns only admissibility; courts are not permitted to weigh 

the evidence, evaluate credibility, or choose between competing expert opinions to evaluate 

admissibility under Daubert. Lawes v. CSA Architects & Eng’rs LLP, 963 F.3d 72, 98 (1st Cir. 

2020) (courts “must stop short of weighing the evidence, evaluating credibility, or unnecessarily 

picking sides in a battle between experts”). And although courts must evaluate the sufficiency of 

information underlying an expert’s opinion, “Rule 702 does not demand that experts rely on all 

data that could be deemed relevant,” because that inquiry “affect[s] the weight and credibility of 

[the] testimony” rather than its admissibility. Id. at 101-02 (citation omitted).

15. For the same reason, “district courts must not ‘unduly scrutinize[] the quality of the 

expert’s data’” at the Daubert stage. Id. at 99 (quoting Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 

796, 806 (7th Cir. 2013)). “[T]he mere ‘existence of other methods of gathering facts does not 

mean that the facts [the expert] relied upon were insufficient’” or that the methods he or she 

employed were unreliable. Lawes, 963 F.3d at 104 (quoting Packgen v. Berry Plastics Corp., 847 

F.3d 80, 86-87 (1st Cir. 2017)). Only “where such testimony’s factual basis, data, principles, 

methods, or their application are called sufficiently into question” must the Court determine 

whether the testimony “has ‘a reliable basis in the knowledge and experience of [the relevant] 

discipline.’” Kumho, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592). 

16. Thus, “[a] review of the case law after Daubert shows that the rejection of expert 

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testimony is the exception, rather than the rule.” Rivera Romero v. Inspira Behav. Care, No. 16-

2721 (CVR), 2020 WL 402274, at *1 (D.P.R. Jan. 23, 2020).

ARGUMENT 

17. The George Report analyzes the methodology applied by the Brattle Group 

(“Brattle”) in determining the Legacy Charge supporting the Plan. Specifically, Dr. George opines 

on (i) whether the Legacy Charge provides PREPA’s creditors with reasonable recoveries on their 

claims given PREPA’s need to continue its operations, as well as the burden on ratepayers and the 

Puerto Rico economy of increased rates; (ii) whether the methodology used by Brattle to determine 

the Legacy Charge is appropriate; and (iii) whether the design of the Legacy Charge is consistent 

with principles of just and reasonable rates. (George Report ¶ 8). To be clear, the Oversight Board 

is not submitting Dr. George’ report as evidence the creditors’ recovery satisfies confirmation 

requirements. Rather, the report is submitted to help prove from a rate maker’s perspective, the 

many factors to consider are appropriately balanced, one of which is whether creditors are treated 

fairly for ratemaking purposes.

18. Dr. George is currently a partner at Bates White, an economic consulting firm 

specializing in economic, financial, and econometric analysis. Dr. George has extensive 

experience as an economic consultant, advisor, and expert in the energy sector, with an ongoing 

focus on debt financing, financial modeling, and utility rate design. (Id. ¶ 2). He has worked on 

behalf of utility companies, public utility commissions, investors, creditors, litigants, intervenors, 

and government agencies in the areas of utility ratemaking, cost recovery, and associated financial 

projections. (Id.) Dr. George also spent several years as Co-Head of the International Energy 

Capital Markets group at Nomura Securities, a Japanese securities firm, where he was responsible 

for originating, structuring, and underwriting fixed-income securities in the electric utility industry 

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and broader energy sector globally. (Id.)

19. As the George Report describes, Puerto Rico’s electric grid is one of the least 

reliable and most expensive for customers among all U.S. states and territories, with PREPA 

customers receiving the lowest quality and least reliable service in the U.S. while also paying rates 

well above the U.S. average. (Id. ¶¶ 16-19). PREPA also requires substantial capital investments 

in its generation, transmission, and distribution assets, but its ability to do so is hindered by its debt 

burden, operational needs, and the already high burden on its customer base. (See id. ¶¶ 20-27 

(discussing the factors leading to PREPA’s high costs and poor service, including expensive fuel 

costs, historical underinvestment, and devastation from hurricanes); id. ¶¶ 28-30 (discussing the 

effects of PREPA’s debt burden and the narrow margin for increasing rates on customers to service 

its debt, operational expenses, and capital expenses)).

20. Within this context, and given his experience, Dr. George analyzed the Oversight 

Board’s approach in designing the Legacy Charge that attempts to maximize recoveries to 

PREPA’s legacy creditors. Dr. George concluded that the Oversight Board’s approach for deriving 

the Legacy Charge and reliance on the Revenue Envelope (a calculation of the upper bound of 

incremental revenues that could be generated) was logical and reasonable. (See id. ¶¶ 36-42 

(concluding that the Revenue Envelope effectively establishes the upper bound of affordability for 

a typical PREPA residential customer’s monthly electricity bill and is based upon reasonable 

assumptions); id. ¶¶ 43-68 (concluding that the Legacy Charge rate design balances the need to 

raise additional revenues while mitigating the reduction in sales due to rate increases)). 

Additionally, Dr. George concluded that the Legacy Charge Model, which was used to calculate 

the Legacy Charge rates, was methodologically sound and the Legacy Charge rates would generate 

$5.68 billion in net present value terms. (See id. ¶¶ 85-92 (concluding further that the Legacy 

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Charge rates are appropriately tailored to account for the circumstances and ability to pay of 

different classes of customers)). 

21. As best as the Oversight Board can discern, it appears UTIER seeks to exclude Dr. 

George’s testimony because the George Report (1) is at odds with the opinions of UTIER’s expert; 

and (2) allegedly offers opinions without sufficient support. For the reasons discussed below, 

UTIER’s limited challenges are without merit.8 

I. ALL ATTEMPTS TO EXCLUDE DR. GEORGE’S TESTIMONY FAIL 

 BECAUSE THEY GO TO WEIGHT AND NOT ADMISSIBILITY 

A. Mere Disagreement Between Expert Witnesses Does Not Justify Exclusion. 

22. Each of UTIER’s arguments impermissibly contends that Dr. George’s anticipated 

testimony should be excluded because UTIER’s expert disagrees with Dr. George. This “battle of 

the experts” argument may go to the weight the trier of fact will ultimately assign to an expert’s 

testimony, but it does not present a sufficient basis to exclude expert testimony. 

23. As the First Circuit has stated, “[t]he mere fact that two experts disagree is not 

grounds for excluding one’s testimony.” Feliciano-Hill v. Principi, 439 F.3d 18, 25 (1st Cir. 

8

 UTIER also argues Dr. George’s testimony should be excluded because it is impermissibly based 

on PREPA’s 2022 Fiscal Plan (the “Fiscal Plan”). (See Motion ¶ 16). It appears that UTIER is 

specifically seeking to challenge the Oversight Board’s instruction to Dr. George “that [] 

[PROMESA] imposes the 2022 Fiscal Plan regardless of other parties’ objections.” (Id. ¶ 16 

(quoting George Report at 9)). This argument fails for two reasons. First, the fact that Dr. George 

was provided instructions to make certain assumptions is not a basis to exclude his anticipated 

testimony. Indeed, “[c]ourts have found that most contentions that expert assumptions are 

unfounded go to the weight, not the admissibility, of the testimony, and a district court has 

discretion . . . to determine whether the expert acted reasonably in making assumptions of fact 

upon which he would base his testimony.” In re Mushroom Direct Purchaser Antitrust Litig., No. 

06-0620, 2015 WL 5767415, at *6 (E.D. Pa. July 29, 2015) (citation omitted). Second, this 

argument appears to attack the validity of the Fiscal Plan itself. However, as explained in Debtor’s 

Motion in Limine to Exclude Evidence Challenging Oversight Board’s Certification 

Determinations, ECF No. 3581 (the “Debtor’s Motion in Limine”), PROMESA § 106(e) expressly 

bars judicial review of the Oversight Board’s certification decisions. See generally Debtor’s 

Motion in Limine. 

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2006). In Feliciano-Hill, for example, the party seeking exclusion argued a doctor’s expert 

testimony should be excluded because it differed from the expert opinion of the moving party and 

because the expert’s “report did not ‘cite[] medical authorities and w[as] based on ‘experience’ 

and general knowledge.” Id. Affirming the district court’s denial of a motion to exclude the 

expert, the First Circuit reasoned that mere disagreement between competing experts is not a basis 

for excluding one expert. “Even if we were to assume that [the moving party’s expert] was 

somehow more qualified than [than the other expert] . . . the district court could not have excluded 

[the expert’s] testimony on that ground alone.” Id.; see also Holbrook v. Lykes Bros. S.S. Co., 80 

F.3d 777, 782 (3d Cir. 1996) (“[W]itnesses may be competent to testify as experts even though 

they may not, in the court's eyes, be the ‘best’ qualified. Who is ‘best’ qualified is a matter of 

weight upon which reasonable jurors may disagree.”).

24. Examining each purported flaw UTIER identified in the George Report proves 

every challenge UTIER has raised goes to the weight of Dr. George’s anticipated testimony—not 

its admissibility. First, UTIER argues the Fiscal Plan’s fuel forecast “fails to include a significant 

material component to EIA prices, which is the correct natural gas contract price[] adders.” 

(Motion ¶ 18). The basis for UTIER’s argument derives entirely from the opinion of its expert, 

Mr. Thomas Sanzillo, who generally opines that the Energy Information Agency (“EIA”) prices 

fail to account for the cost of fuel delivery to Puerto Rico. (Id. ¶¶ 19-21). Put differently, UTIER 

does not challenge the methods underlying the George Report, but instead asks the Court to 

exclude Dr. George’s anticipated testimony because he advances an opinion contrary to UTIER’s 

expert. That is not a sufficient basis to exclude an expert witness’s testimony. See, e.g., FelicianoCase:17-03283-LTS Doc#:24567 Filed:06/13/23 Entered:06/13/23 18:05:11 Desc: Main

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Hill, 439 F.3d at 25.9

25. UTIER’s other purported issues with the George Report, and by extension Dr. 

George’s anticipated testimony, suffer from the same fatal flaw. The next challenge UTIER 

mounts against the George Report is that it “does not support the notion that the Legacy Charge is 

affordable to non-residential customers, despite affirming so.” (Motion ¶ 23). UTIER’s only basis 

for suggesting an affordability analysis for non-residential customers is necessary seemingly 

comes from the anticipated testimony of Mr. Sanzillo. (See id. ¶ 24 (implying that an affordability 

analysis as to commercial and industrial customers is mandatory because Mr. Sanzillo faults Dr. 

George for “ignor[ing] the impact of rate increases on commercial and industrial customers . . . .” 

(quoting Rebuttal Report of Thomas Sanzillo at 8:132))). Finally, UTIER appears to argue the 

George Report fails to adequately establish the Legacy Charge will permit the future sustainability 

of PREPA as a going concern, Mot. ¶ 25, while Mr. Sanzillo opines the Legacy Charge will 

threaten PREPA’s existence as functioning utility. But again, the law is well-settled that Mr. 

Sanzillo’s belief regarding the Legacy Charge’s impact on PREPA’s operations does not justify 

the exclusion of Dr. George’s anticipated testimony. See, e.g., Feliciano-Hill, 439 F.3d at 25; see 

also supra ¶ 23 n. 9 (collecting cases). 

B. The Sources and Methods Used by Dr. George Were Reliable, and Exclusion 

 is Therefore Inappropriate 

26. UTIER’s arguments fail for additional reasons. First, as to the fuel forecast 

9See also Cusack v. BendPak, Inc., No. 4:17-cv-00003-DCN, 2018 WL 3939318, at *11 (D. Idaho 

Aug. 15, 2018) (denying motion to exclude expert opinion “simply because it differs from other 

expert opinions” and reasoning “this is a classic battle of the experts which must play out at trial 

before a jury where cross-examination and exploration can take place.”); City of Chi. v. 

Westchester Fire Ins. Co., No. 08 C 5535, 2010 WL 3516066, at *5 (N.D. Ill. Sept. 1, 2010) (“The 

‘battle of the experts’ the City attempts to engage in with its motion to exclude Dr. Stringfellow is 

more properly undertaken at trial in pitting Dr. Stringfellow’s and Professor Geiger’s opinions 

against each other.”). 

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argument, the George Report concludes “PREPA’s fuel price forecasting methodology is 

reasonable and appropriate in the context within which it is used.” (George Report ¶ 111). In 

reaching this conclusion, Dr. George compared the fuel price forecasts in the 2022 Fiscal Plan 

against forecasts for analogous fuel types from the 2022 US EIA Annual Energy Outlook (“AEO”). 

(Id. ¶ 107; see also id. at Appendix C). The comparison showed PREPA’s forecasts were higher 

than EIA’s forecasts for liquified natural gas (“LNG”) and coal and lower than the forecasts for 

residual fuel oil and diesel. (Id. ¶ 107). After noting that natural gas was PREPA’s most-used fuel 

source in 2021, Dr. George concluded a slightly higher LNG price forecast is conservative—but 

conservatism is appropriate under these circumstances because underestimation of fuel costs 

would increase the burden borne by ratepayers and therefore impact affordability. (Id. ¶ 108). 

27. UTIER does not attack the sources or methods underpinning the George Report’s 

opinion of the Fiscal Plan’s fuel forecasting, and to the contrary, Mr. Sanzillo relies on many of 

the same fuel price indices. UTIER’s principal attack on Dr. George’s opinion regarding fuel 

forecasting is that it fails to consider certain contract adders that Mr. Sanzillo believes are 

necessary to forecast fuel prices. (Motion ¶¶ 16-22). But, “failure to consider particular variables 

or to use certain methods is not fatal to an expert’s testimony.” Provanzano v. MTD Prods. Co., 

No. 15-11720-NMG, 2016 WL 6089685, at *2 (D. Mass. Oct. 17, 2016); Ruiz-Troche v. Pepsi 

Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (“As long as an expert’s scientific 

testimony rests upon ‘good grounds, based on what is known,’ it should be tested by the adversary 

process—competing testimony and active cross-examination[.]” (citation omitted)). Put 

differently, UTIER will have the opportunity to cross examine Dr. George regarding his opinion 

regarding the reasonableness of the Fiscal Plan’s fuel forecasts, but wholesale exclusion of Dr. 

George’s anticipated testimony is improper simply because Dr. George might have relied on 

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different variables than Mr. Sanzillo. 

28. Next, UTIER argues the George Report does not consider whether the Legacy 

Charge is affordable to non-residential customers, “despite affirming so.” (Motion ¶ 23). This 

misstates the George Report. Dr. George analyzed the reasonableness of the principles underlying 

the Revenue Envelope and Legacy Charge. The only affordability analysis encompassed in these 

models is the affordability of electricity for a typical residential PREPA customer, i.e., the median 

income household in Puerto Rico. (See, e.g., George Report ¶ 39). In other words, Dr. George 

offers no opinion regarding the affordability of the Legacy Charge for non-residential PREPA 

customers, but rather the George Report opines on whether the Revenue Envelope and Legacy 

Charge “diverge[s] from the practices generally applied in the field of utility ratemaking.” (Id. ¶ 

13). To the extent UTIER challenges the reliability of the George Report because it does not offer 

such an opinion, UTIER will have ample opportunity to cross-examine Dr. George on that topic.10

29. Finally, UTIER claims “Dr. George states that the revenue envelope calculation 

aimed to arrive at a rate that ‘does not threaten the sustainability of PREPA as a functioning 

utility.’” (Motion ¶ 25 (quoting Rebuttal Report of Mr. Thomas Sanzillo at 8:132)). And then it 

faults Dr. George for allegedly failing to demonstrate the Revenue Envelope and Legacy Charge 

“comports with this additional affordability goal.” (Id. ¶ 25). 

30. In making this argument, UTIER does not reference any opinion of Dr. George’s, 

but instead partially quotes Exhibit P of the Disclosure Statement for Second Amended Title III 

10 To the extent UTIER is suggesting that any expert analysis regarding the reasonableness of 

utility rates charged to commercial and industrial customers must include an affordability analysis, 

UTIER’s argument fails. Noticeably absent from UTIER’s Motion is any scientific evidence, 

studies, or academic literature supporting the notion that electric utility companies are required to 

conduct an affordability analysis on all customer classes when determining appropriate rates (or 

portions of rates, such as the Legacy Charge). 

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Plan of Adjustment of the Puerto Rico Electric Power Authority, ECF No. 3279. See Legacy 

Charge Derivation, ECF No. 3279-16 at 4 (“Any increase in PREPA’s rates, including the Legacy 

Charge, cannot exceed the conceptual upper bound of affordability: the total rate that PREPA 

customers can pay without [, among other things,] . . . threatening the sustainability of PREPA as 

a functioning utility . . . .”). 

31. Nonetheless, the George Report recognizes that when the Oversight Board 

estimated the Revenue Envelope, it “took into consideration a number of factors, including 

customers’ willingness and ability to pay higher rates, and the future sustainability of PREPA as a 

going concern.” (George Report ¶ 32). And the George Report’s analysis of the Revenue 

Envelope considers the future revenues PREPA will have to generate because of the reduced 

consumption caused by the higher Legacy Charge rates, i.e., the effect of the price elasticity of 

demand. (Id. ¶ 78). The George Report expressly recognizes the Legacy Charge will cause 

PREPA customers to reduce their consumption, which in turn will result in decreased future 

revenues. (Id.). To ensure that PREPA will still have sufficient revenues to meet its fixed and 

variable operating costs, Dr. George opines it was reasonable for the Revenue Envelope to be 

reduced by the net present value of approximately $812 million. In other words, the George Report 

recognizes the imposition of the Legacy Charge will reduce PREPA’s revenues due to customers’ 

reduced consumption, and accounts for this by reducing the Revenue Envelope such that PREPA 

will be able to raise rates to cover future operating costs in the future.11 Thus, contrary to UTIER’s 

11 See, e.g., George Report ¶ 78 (“The Revenue Envelope Model anticipates that PREPA will need 

to address Fixed Cost Underrecovery due to the effect of the price elasticity of demand (i.e., 

reduced consumption caused by the higher Legacy Charge rates). PREPA’s variable costs will 

decline with a reduction in consumption, but PREPA’s fixed costs would remain materially 

constant whether consumption increases or decreases. PREPA’s fixed costs would then be spread 

over a smaller revenue base. With declining sales as a result of increased rates, PREPA would 

have less revenue available to pay for its fixed costs, including for example fixed operation and 

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assertion, the George Report does consider how the Legacy Charge will impact PREPA’s ability 

to cover its operating expenses. To the extent UTIER disagrees with Dr. George’s conclusions, it 

will have an opportunity to cross-examine Dr. George on the subject. Exclusion of Dr. George’s 

anticipated testimony, however, is not warranted. 

CONCLUSION 

32. For the foregoing reasons, the Court should deny the Motion.

[Remainder of Page Intentionally Left Blank] 

maintenance [] expenses. This necessitates a marginal increase in rates to cover the underrecovered 

portion of fixed costs and ultimately to meet PREPA’s original revenue requirement as defined in 

the 2022 Fiscal Plan.”). 

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Dated: June 13, 2023 

New York, New York 

Respectfully submitted, 

/s/ Margaret A. Dale 

Martin J. Bienenstock 

Paul V. Possinger 

Ehud Barak

Margaret A. Dale 

Michael T. Mervis 

Julia D. Alonzo

Laura Stafford 

Javier F. Sosa 

(Admitted Pro Hac Vice) 

PROSKAUER ROSE LLP

Eleven Times Square 

New York, NY 10036 

Tel: (212) 969-3000 

Fax: (212) 969-2900 

Attorneys for the Financial Oversight and 

Management Board, as representative for 

PREPA 

/s/ Hermann D. Bauer 

Hermann D. Bauer 

USDC No. 215205 

O’NEILL & BORGES LLC 

250 Muñoz Rivera Ave., Suite 800 

San Juan, PR 00918-1813 

Tel: (787) 764-8181 

Fax: (787) 753-8944 

Co-Attorneys for the Financial 

Oversight and Management Board, as 

representative for PREPA

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CERTIFICATE OF SERVICE

I hereby certify that, on this same date, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which will send notifications of such filing to all CM/ECF 

participants in this case. 

/s/ Hermann D. Bauer 

 Hermann D. Bauer 

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