In the United States Court of Federal Claims

No. 16-1691C

(Filed: March 4, 2021)

CITY OF WILMINGTON, 

DELAWARE,

Plaintiff,

 v.

THE UNITED STATES,

Defendant.

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ORDER

SOLOMSON, Judge.

This case involves a long-running legal controversy between Plaintiff, City of 

Wilmington (“Wilmington”), and Defendant, the United States, concerning five 

properties (the “properties”) that the United States Army Corps of Engineers maintains 

in Wilmington, Delaware. ECF No. 1 (“Compl.”) at 1–2. From 2011 through 2016, 

Wilmington assessed water pollution service charges on those properties, but the 

government thus far has refused to pay these fees. Id. at 1–2, 6. On December 22, 2016, 

Wilmington filed its complaint against the government, seeking to recover “the 

payment of reasonable service charges” assessed for “the control and abatement of 

water pollution” pursuant to the Clean Water Act,1 as amended by the Federal 

Responsibility to Pay for Stormwater Programs Act of 2011, Pub. L. No. 111-378, 124 

Stat. 4128, codified at 33 U.S.C. § 1323.

2 Compl. at 1–3. 

1 33 U.S.C. §§ 1251 et seq.

2 This case originally was assigned to Judge Williams, ECF No. 2, but, on February 5, 2020, was 

transferred to the undersigned Judge. ECF No. 73.
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The parties have concluded discovery; trial is presently scheduled for April 2021. 

ECF No. 89.3 Pending before the Court is Defendant’s motion in limine to exclude 

testimony from Plaintiff’s expert witness, Hector J. Cyre. ECF No. 68 (“Def. Mot.”). 

Also pending before the Court is Plaintiff’s motion in limine (1) to preclude Defendant 

from asserting certain arguments, (2) to exclude the testimony of Defendant’s expert 

witness, Dr. Neil S. Grigg, and (3) to exclude several of its fact witnesses, including 

Robert Moore, Heather Sachs, and Daniel Kelly, from testifying. ECF No. 69 (“Pl. 

Mot.”). The parties filed their respective response briefs, ECF Nos. 77 (“Pl. Resp.”), 78 

(“Def. Resp.”), and the Court held oral argument on February 16, 2021. Minute Order 

(Feb. 8, 2021). 

Pursuant to Rule 16 of the Court of Federal Claims (“RCFC”), this Court is 

authorized, among other things, to “consider and take appropriate action . . . [for] 

avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony 

under Federal Rule of Evidence 702.” RCFC 16(c)(2)(D); see Magnus Pac. Corp. v. United 

States, 2016 WL 3960447, *9 (Fed. Cl. July 21, 2016) (“There is no question under RCFC 

16, that this court, as a trial court, has the power to issue pretrial orders simplifying 

issues for trial.” (modifications omitted)). A motion in limine “‘enables a court to rule in 

advance on the admissibility of documentary or testimonial evidence and thus expedite 

and render efficient a subsequent trial.’” Norman v. United States, 56 Fed. Cl. 255, 267 

(2003) (quoting Weeks Dredging & Contracting, Inc. v. United States, 11 Cl. Ct. 37, 45 

(1986)). “[W]hen disposing of such motions, this court enjoys broad discretion.” 

Sikorsky Aircraft Corp. v. United States, 102 Fed. Cl. 38, 49 (2011) (citing Sundance, Inc. v. 

DeMonte Fabricating Ltd., 550 F.3d 1356, 1360–61 (Fed. Cir. 2008)). Notably, given that 

this Court only conducts bench trials, we have “even greater discretion” to deny a 

motion in limine because “’there is no concern for juror confusion or potential 

prejudice.’” RMH Tech LLC v. PMC Indus., Inc., 2018 WL 5095676, *3 (D. Conn. Oct. 19, 

2018) (quoting Tiffany (NJ) Inc. v. eBay, Inc., 576 F. Supp. 2d 457, 457 n.1 (S.D.N.Y 2007)); 

Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002) (noting that 

“concerns [about juror confusion] are of lesser import in a bench trial”); United States v. 

Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for the gatekeeper to 

keep the gate when the gatekeeper is keeping the gate only for himself.”). 

For the reasons explained below, the Court DENIES both the government’s 

motion in limine and Plaintiff’s motion in limine.

3 The parties filed their respective pre-trial memorandum of contentions of fact and law. ECF 

Nos. 60 (“Pl. Memo”), 64 (“Def. Memo.”). The parties subsequently moved for leave of the 

Court to file responses to those memoranda. ECF Nos. 65, 67. Both motions hereby are 

GRANTED.
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I. Defendant’s Motion In Limine

The government argues in its motion in limine that the Court should exclude the 

expert testimony of Hector J. Cyre, president of Water Resource Associates, Inc., 

pursuant to Federal Rule of Evidence 702. Def. Mot. at 1. Wilmington intends to have 

Mr. Cyre testify as an expert witness at trial that Wilmington’s rate methodology for 

calculating stormwater charges is consistent with generally accepted industry 

standards. Id. at 7–9. According to the government, Mr. Cyre’s testimony is not 

relevant to the fact-specific determination as to whether the actual charges imposed by 

Wilmington on the properties are “reasonable.” Id. The government further contends 

that his testimony is not useful for determining whether Wilmington’s practice of 

estimating the stormwater charges for non-residential properties is appropriately

“based on some fair approximation of the proportionate contribution of the property”

within the meaning of 33 U.S.C. § 1323(c). Id. at 9–11.

“In general, Rule 702 is viewed as requiring the trial judge to ensure that 

proffered expert testimony is both reliable and relevant.” Murfam Farms, LLC v. United 

States, 2008 WL 4725468, *1 (Fed. Cl. Sept. 19, 2008). Relevant evidence is that which 

“will help the trier of fact to understand the evidence or to determine a fact in issue”

and “is based on sufficient facts or data.” Fed. R. Evid. 702. While “the trial court acts 

as a ‘gatekeeper’ to exclude expert testimony that is irrelevant,” Micro Chem., Inc. v. 

Lextron, Inc., 317 F.3d 1387, 1391 (Fed. Cir. 2003), “doubts regarding whether an expert’s 

testimony will be useful should generally be resolved in favor of admissibility.” Clark v. 

Heldrick, 150 F.3d 912, 915 (8th Cir. 1998) (internal quotation marks omitted). Simply 

put, “an expert’s opinion should be excluded only if it is so fundamentally unsupported 

that it can offer no assistance to the jury.” Wing Enters., Inc. v. Tricam Indus., Inc., 829 F. 

App’x 508, 512 (Fed. Cir. 2020) (internal quotation marks omitted). Of course, as noted 

above, in a bench trial such concerns are greatly attenuated. See Seaboard Lumber Co., 

308 F.3d at 1302; Brown, 415 F.3d at 1268–69; RMH Tech LLC, 2018 WL 5095676 at *3.

The Court finds that, at least at this stage, Mr. Cyre’s proffered testimony is 

sufficiently reliable and relevant to be admitted. In that regard, the government does 

not contend that his opinion is unsupported by fact or data. See Def. Mot. at 7–10. 

Moreover, the Court agrees that Mr. Cyre’s testimony may prove “relevant to helping 

the trier of fact assess whether the stormwater charges . . . are normal, customary, fair 

and/or moderate.” Pl. Resp. at 19. Thus, at this pre-trial stage, the Court cannot 

conclude that Mr. Cyre’s testimony is definitively irrelevant to the statutory question 

that will be addressed at trial. See, e.g., Wing Enters., 829 F. App’x at 513–14 (holding 

that expert testimony about industry standards can be relevant “even though the 

testimony did not address the exact facts at hand but instead provided a more general 

explanation”). On the other hand, the government’s concerns may (and will likely) be 
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raised at trial to critique the usefulness of Mr. Cyre’s testimony, “but the same concerns 

do not adequately convince this Court that the testimony should be excluded.” David 

Boland, Inc. v. United States, 2020 WL 5641873, *2 (Fed. Cl. Sept. 22, 2020). The 

government’s motion in limine is DENIED, accordingly. 

II. Plaintiff’s Motion In Limine

A. Plaintiff’s Motion To Preclude Certain Arguments Made By 

Defendant 

Wilmington contends in its motion in limine that the government should be 

precluded from arguing that: (1) the properties contain wetlands; (2) the properties 

qualify for stormwater credits; (3) the stormwater charges are discriminatory; and 

(4) the government assessed the reasonableness of the stormwater charges prior to the 

filing of Wilmington’s complaint. Pl. Mot. at 1. 

1. “Properties Contain Wetlands” Argument 

Wilmington offers three arguments in support of its position that the 

government should not be permitted to argue that the properties at issue include 

wetlands, and that the assessed charges thus should be mitigated. Pl. Mot. at 2–10. The 

Court is not persuaded. 

First, Wilmington asserts that the government should be judicially estopped from 

presenting evidence that the properties contain wetlands because when the government 

applied to the Delaware Department of Natural Resources and Environmental Control 

for a Water Quality Certification in 2007 (and, again, in 2010 and 2011), the government 

“did not check the boxes in the application denoting the presence of wetlands on the 

Properties.” Pl. Mot. at 3. The doctrine of judicial estoppel is intended to prevent a 

litigant from “playing fast and loose with the courts” by assuming contrary positions in

legal proceedings, Def. Tech., Inc. v. United States, 99 Fed. Cl. 103, 127 (2011); see Housing 

Auth. of Slidell v. United States, 149 Fed. Cl. 614, 643 (2020), and applies “just as much 

when one of the tribunals is an administrative agency.” Trustees in Bankr. of N. Am. 

Rubber Thread Co., Inc. v. United States, 593 F.3d 1346, 1354 (Fed. Cir. 2010). The 

government counters, however, that there is no inconsistency in its positions because 

the two proceedings address distinct issues. Def. Resp. at 3–8. The government 

convincingly explains that the Water Quality Certification application sought to 

ascertain whether the properties are “wetlands,” as that legal term is used by federal 

and state regulations. Id. In contrast, the evidence that the government wants to 

present at trial concerns the physical character of the properties in producing 

stormwater run-off for purposes of assessing the reasonableness of the stormwater 
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charges. Id. As judicial estoppel is applied only when a party’s positions are “mutually 

exclusive and directly inconsistent[,]” Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367, 1379 

(Fed. Cir. 2020) (internal quotation marks omitted), the government may argue in this 

proceeding that its properties are wetlands for the purposes of defending against the 

stormwater charges to which Wilmington claims entitlement.

Furthermore, the representations that the government made in the Water Quality 

Certification application cannot give rise to judicial estoppel. Only when the statements 

made in the earlier proceeding involve the “truth-seeking function of the court” (or 

administrative tribunal) does judicial estoppel apply. Egenera, Inc., 972 F.3d at 1379–80 

(citation omitted). Simply put, judicial estoppel only applies to legal proceedings that 

are “’adjudicatory in nature.’” Mony Life Ins. Co. of Amer. v. Loiza Dev. S.E., 2006 WL 

8450729, *1 (D.P.R. Oct. 31, 2006) (quoting United States v. Levasseur, 846 F.2d 786, 792–93 

(1st Cir. 1988)). For example, judicial estoppel does not preclude individuals from 

contradicting sworn statements made in a tax return. Kaiser v. Bowlen, 455 F.3d 1197, 

1204 (10th Cir. 2006); see Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 715 n.2 (3rd Cir. 2001) 

(“[W]e know of no basis for crafting a theory of estoppel based upon sworn statements 

in a tax return . . . .”).

Wilmington relies on a decision of our appellate court, the United States Court of 

Appeals for the Federal Circuit, in Lampi, LLC v. American Power Products, Inc., 228 F.3d 

1365 (Fed. Cir. 2000), for the proposition that judicial estoppel does apply to statements 

made in an application submitted to a government agency. Pl. Mot. at 4–5. In Lampi, 

the Federal Circuit held that judicial estoppel could be enforced based upon statements 

made in a trademark application in proceedings before the Patent and Trademark 

Office (“PTO”). 228 F.3d at 1377. Wilmington’s reliance upon Lampi misses the mark. 

Statements made in a trademark application are subject to substantive analysis by an 

examiner and may be rejected, and thus this application process is similar to an 

adjudicatory proceeding. See 37 C.F.R. §§ 2.61–2.63. In Lampi, the PTO examiner twice 

rejected the trademark application; the company obtained a trademark only after the 

company made certain representations to the PTO examiner following the rejections. 

See Lampi, LLC v. Am. Power Prods., Inc., 65 F. Supp. 2d 757, 776 (N.D. Ill. 1999). Thus, 

judicial estoppel properly could preclude the company from contradicting its earlier 

representations upon which the PTO examiner relied in issuing the trademark. This 

distinction is further confirmed in the Federal Circuit’s recent decision in Egenera, Inc. v. 

Cisco Systems, Inc., in which that court held that statements made in a petition for the 

correction of a named inventor in a patent, see 35 U.S.C. § 256, are not grounds for 

judicial estoppel because “[n]o substantive examination occurs, and the PTO does not 

consider the substantive adequacy of the petition.” 972 F.3d at 1380–81 (citing 37 C.F.R. 

§ 1.324(b)). Here, Wilmington has provided no facts even suggesting that the Water 
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Quality Certification application is subject to a substantive examination or proceedings 

of the type that would support a judicial estoppel claim. See Pl. Mot. at 3, 6.

Second, Wilmington contends that pursuant to the doctrine of exhaustion, the 

government should be precluded from arguing that the properties contain wetlands 

because the government did not utilize Wilmington’s administrative appeal process to 

seek lower stormwater charges. Pl. Mot. at 6–9. This, however, is not the first time that 

Wilmington has made this argument. Indeed, Judge Williams, who previously 

presided over this case, rejected that very same argument in her ruling on the parties’ 

motions for partial judgment on the pleadings in March 2018. City of Wilmington v. 

United States, 136 Fed. Cl. 628, 633 (2018) (ECF No. 28 at 5–6). Judge Williams 

specifically held that the Wilmington City Code does not require a landowner, 

including the government, to pursue an administrative appeal; nor would an appeal 

have provided the government with relief because “the Wilmington City Code only 

grants prospective relief and does not permit parties to appeal fees that have already 

been assessed.” Id. Wilmington does not dispute that essential conclusion.

To the extent that Wilmington seeks to re-litigate that determination, it should 

have filed a motion for reconsideration consistent with RCFC 59(b), not a motion in 

limine. “Motions in limine are meant to deal with discrete evidentiary issues related to 

trial, and are not another excuse to file dispositive motions disguised as motions in 

limine.” Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. 

Mich. 2009) (brackets and citation omitted)); see also Barnes v. Dist. of Columbia, 924 

F. Supp. 2d 74, 81–82 (D.D.C. 2013) (denying motion in limine used “as a backdoor 

motion to reconsider”). 

Moreover, “a reassignment to another judge should not be viewed as declaring 

open season on relitigating any prior rulings with which the party disagrees.” Applegate 

v. United States, 52 Fed. Cl. 751, 765–66 (2002) (citing Best v. Shell Oil Co., 107 F.3d 544, 

546 (7th Cir. 1997)), aff'd, 70 F. App'x 582 (Fed. Cir. 2003). Indeed, the “law of the case” 

doctrine counsels against “relitigat[ing] matters already adjudicated absent some 

indication of extraordinary circumstances.” Applegate, 52 Fed. Cl. at 765. Judge 

Williams carefully considered and rejected Plaintiff’s exhaustion argument, see City of 

Wilmington, 136 Fed. Cl. at 633, and Wilmington does not suggest a compelling reason 

to revisit her conclusions. In any event, even if the undersigned were to reconsider 

Judge Williams’ earlier decision, the outcome in all likelihood would be the same. The 

parties are free to argue about how to properly interpret and apply the statutory 

provisions at issue, but the Court will not revisit that question before trial to exclude 

particular arguments or testimony.
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Third, Wilmington argues that the government failed to disclose in its 

interrogatory responses that it intended to raise factual issues at trial regarding the 

properties’ wetland status. Pl. Mot. at 9–10. Wilmington contends that it learned of this 

defense for the first time in Dr. Grigg’s expert report which was shared with 

Wilmington only after the close of fact discovery. Id. Wilmington accordingly seeks to 

have this Court impose a discovery sanction pursuant to RCFC 37, prohibiting the 

government from relying upon such facts or testimony during trial. Id. at 10 (citing 

RCFC 37(c)(1)). Wilmington acknowledges in its motion, however, that the government

responded, in its answer to the relevant interrogatory, that the government “would 

provide its [complete] response when expert disclosures were due.” Id. at 9. (emphasis 

added). Wilmington thus was on notice that the government could not identify all 

possible defenses until Dr. Grigg submitted his expert report.

To the extent Wilmington was unsatisfied by the government’s interrogatory 

response, Wilmington should have filed a timely motion pursuant to RCFC 37 to 

compel discovery. Wilmington should not have waited until nearly the eve of trial to 

seek exclusion of the government’s evidence.4 A motion in limine is not to be used “as a 

substitute for motions to compel discovery or for discovery sanctions that should have 

been brought earlier.” Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F. Supp. 2d 

1093, 1094 (C.D. Cal. 2012); see McCon v. Perez, 2018 WL 4006971, *1 (S.D. Miss. Aug. 20, 

2018) (denying a motion in limine seeking Rule 37(c) relief). In the absence of a timely 

motion to compel, this Court will not preclude the government from presenting 

evidence that the properties contain wetlands and, accordingly, the Court DENIES

Wilmington’s motion to exclude this argument. 

2. “Properties Qualify For Stormwater Credits” Argument

Wilmington additionally contends that the government should be precluded,

pursuant to the doctrine of exhaustion, from asserting that the properties are eligible for 

stormwater credits. Pl. Mot. at 11. In Wilmington’s view, the government’s failure to 

apply for stormwater credits through the city’s stormwater credit application process 

forecloses the government’s argument. Id. For the same reasons the Court rejected 

Wilmington’s exhaustion argument above, see supra Sec. II.A.1, the Court DENIES the 

motion to exclude this argument, as well. 

4 Wilmington did previously file a motion to compel discovery pertaining to other matters in 

this case, ECF Nos. 36, 37, which, on January 3, 2019, Judge Williams granted. See City of 

Wilmington v. United States, 141 Fed. Cl. 558 (2019) (ECF No. 45).
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3. “Stormwater Charges Are Discriminatory” Argument

Wilmington further argues that the government for the first time in Dr. Grigg’s 

expert report contends that the city’s stormwater charges are “discriminatory” as that 

term is used in 33 U.S.C. § 1323(c). Pl. Mot. at 11–13. Wilmington, again, seeks to have 

this Court preclude the government from raising such arguments at trial pursuant to 

RCFC 37. Id. Aside from this Court’s reluctance to apply RCFC 37 sanctions at this 

stage, see supra Sec. II.A.1, the government in any event represents that it does not 

intend to argue that the charges are “discriminatory” in the manner that Wilmington 

assumes. Def. Resp. at 9–12. The government explains in its response, and further 

clarified this point during oral argument, that it is challenging the fairness of the 

stormwater charges generally. Id. The government does not intend to argue that the 

charges are “discriminatory” in that sense that Wilmington is targeting federal 

properties for unfair treatment. Id. Rather, the government intends to present evidence 

to support its view that the service charges associated with certain property 

classifications do not accurately reflect the relative benefits from the stormwater 

management program and contributions to stormwater run-off. Id. Accordingly, the 

Court DENIES the motion to exclude this argument as moot. 

4. “Attorney-Client Privilege Documents” Argument

“Out of an abundance of caution,” Wilmington asserts in its motion in limine that

the government should be precluded from using any materials demonstrating or 

supporting the government’s contemporaneous assessment that the stormwater charges 

were unreasonable. Pl. Mot. at 13–16. This is because, according to Wilmington, the 

government previously shielded those documents from Wilmington during discovery

by invoking attorney-client privilege. Id. While the Court is unsure whether or how the 

government’s contemporaneous assessment is relevant to the Court’s de novo review of 

Wilmington’s claim for payment pursuant to the statute at issue, the Court cannot 

conclude at this stage that the government’s views at the time it declined to pay 

Wilmington’s charges are irrelevant. In any event, the government represented to the 

Court at oral argument that the government does not intend to rely upon any privileged 

materials, not previously disclosed to Wilmington, during the trial. The Court will hold 

the government to that commitment during trial. Accordingly, the Court DENIES the 

motion to exclude this argument as moot, as well. 

B. Dr. Grigg’s Expert Testimony

Wilmington requests that the Court exclude portions of the expert testimony 

proffered by Dr. Neil S. Grigg, professor of civil and environmental engineering at 

Colorado State University. Pl. Mot. at 17; ECF No. 70-2 (“Grigg Rep.”) at 1, 17. The 
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government intends to have Dr. Grigg testify that Wilmington’s service charges related 

to the properties are unreasonable for nine reasons. See Grigg Rep. at 1–3. Wilmington 

primarily contends that opinion nos. 3, 8, and 9 of Dr. Grigg’s testimony constitute 

hearsay because they rely on the opinions of other “undisclosed” and “non-testifying”

experts who work for the Army Corps of Engineers and therefore should be excluded 

pursuant to Federal Rule of Evidence 703. Pl. Mot. at 17–24.

In opinion no. 3 of his expert report, Dr. Grigg concludes that Wilmington 

inaccurately calculated the stormwater charges based on an analysis of the physical 

characteristics and aerial photos of the properties. Grigg Rep. at 5–6. He additionally 

explained that “[t]he low contributions of the properties to stormwater pollution can 

also be demonstrated by their actual land use and by modeling results, which are 

included with this report as Appendix 6.” Id. at 5. Appendix 6 contains site and 

hydrologic modeling data intended to “demonstrate how much runoff would leave the 

[properties] after a typical rainfall.” Id. at 40–43. Robert J. Moore, a hydraulic engineer 

with the Army Corps of Engineers, provided this modeling information to Dr. Grigg. 

Id. at 42. The government did not disclose that Mr. Moore would be called to testify; 

rather, Dr. Grigg intends to utilize Mr. Moore’s modeling as part of his expert 

testimony. Pl. Mot. at 22–24. 

In opinion nos. 8 and 9, Dr. Grigg referenced Appendix 4 of his report, which 

contains data relating to the properties’ measurements. Grigg Rep. at 11–14. In 

Appendix 4, Dr. Grigg indicated that the Army Corps of Engineers provided maps and 

accompanying analysis that demonstrate a different computation is warranted (i.e., 

from that of Wilmington). Id. at 32–36. Heather M. Sachs, a realty specialist with the

Army Corps of Engineers, provided that property information to Dr. Grigg. Pl. Mot. at 

23–24. The government, however, did not disclose Ms. Sachs as a fact witness. Id. 

Rule 703 of the Federal Rules of Evidence provides that an expert is permitted to 

rely on evidence that is otherwise inadmissible, “if experts in the particular field would 

reasonably rely on those kinds of facts or data in forming an opinion on the subject.” 

The Advisory Committee Notes to the 1972 Proposed Rules permit a doctor to rely on 

“statements by patients and relatives, reports and opinions from nurses, technicians 

and other doctors, hospital records, and X rays.” Fed. R. Evid. 703 Advisory Committee 

Note. “One expert may not, however, merely adopt another expert’s opinions as his or 

her own reflexively and without understanding the materials or methods underlying 

the other expert’s opinions.” U.S. Bank Nat. Ass’n v. PHL Variable Life Ins. Co., 112 

F. Supp. 3d 122, 130–31 (S.D.N.Y. 2015); see Mike’s Train House, Inc., v. Lionel, L.L.C., 472 

F.3d 398, 409 (6th Cir. 2006) (“Other circuits have squarely rejected any argument that 

Rule 703 extends so far as to allow an expert to testify about the conclusions of other 

experts.”). Indeed, this would “allow a witness, under the guise of giving expert 
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testimony, to in effect become the mouthpiece of the witnesses on whose statements or 

opinions the expert purports to base his opinion.” Brace v. United States, 72 Fed. Cl. 337, 

352 (2006) (internal quotation marks omitted). 

While Wilmington correctly notes that there is case law supporting its position 

that expert testimony can become inadmissible when it is based on the opinions of 

another, Pl. Mot. at 19–20, those cases are not comparable to the case at hand. Those 

cases establish that an expert cannot submit a report as substantive evidence of his or 

her conclusions that was not used in formulating his or her expert opinion, Turner v. 

Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1060–62 (9th Cir. 2003), and that one 

expert cannot testify in support of the conclusions of another non-testifying expert. 

Mike’s Train House, Inc., 472 F.3d at 409;

5 United States v. Grey Bear, 883 F.2d 1382, 1392–

93 (8th Cir. 1989).

Wilmington relies extensively on Dura Automotive Systems of Indiana, Inc. v. CTS 

Corp., 285 F.3d 609, 613 (7th Cir. 2002), but that case is not particularly helpful to 

Wilmington’s argument. Dura involved an expert witness relying on the computer 

modeling his assistants created where the “underlying expert judgment is in issue” and 

where the models were “inherently not the most precise of scientific tools.” 285 F.3d at 

613–14. Further, the expert witness admitted that he was not qualified to discuss the

modeling. Id. at 611–12; see Uncommon, LLC v. Spigen, Inc., 305 F. Supp. 3d 825, 845–46 

(N.D. Ill. 2018) (“In Dura, the plaintiffs’ sole named expert admitted in depositions that 

his analysis relied upon mathematical models that he lacked the expertise to evaluate.”).

In the present case, in contrast, Dr. Grigg intends to incorporate into his 

testimony the analysis of Mr. Moore and Ms. Sachs. Notably, Wilmington does not 

seriously contest either the accuracy or the soundness of the underlying computer 

modeling or mapping data that Dr. Grigg relies upon in his report; nor does 

Wilmington contend that experts in Dr. Grigg’s field do not regularly rely on such 

analysis. See Pl. Mot at 17–24. Although Wilmington claims that Dr. Grigg does “not 

understand[] the software, methods, or data used . . . due to a lack of access to or 

competency in the methods employed by the [Army Corps] experts[,]” Id. at 21,

Wilmington provides no factual basis to substantiate its bald assertion. Wilmington 

further asserts that “Dr. Grigg never worked with the [Army Corps] experts, had no 

input in choosing who would conduct the research, and did not supervise the activities 

of the [Army Corps] experts.” Id. at 21–22. These all may be true criticisms. But none 

5 Indeed, in Mike’s Train House, Inc., the expert witness “testified extensively about the 

conclusions” reached by a different, non-testifying expert. 472 F.3d at 409 (emphasis added). In 

contrast, Dr. Grigg’s report makes minimal mention of Mr. Moore’s and Ms. Sachs’ work. See 

Grigg Rep. at 5, 11–14.
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of these alleged failures purport to show that Dr. Grigg does not understand Mr. 

Moore’s or Ms. Sachs’ analysis. Accordingly, Wilmington’s criticisms “go to weight, not 

admissibility[,]” and may be explored on cross-examination.6 U.S. Bank Nat. Ass’n, 112 

F. Supp. 3d at 131.

Wilmington offers additional arguments in support of excluding other portions 

of Dr. Grigg’s expert testimony. See Pl. Mot. at 25–37. Given that these arguments raise 

issues based either on the relevancy of Dr. Grigg’s testimony or exhaustion of 

Wilmington’s appeal process, the Court denies these parts of Wilmington’s motion, for 

the reasons explained above. See supra Sec. I (relevancy of expert testimony); 

Sec. II.A.1–2 (exhaustion).

C. Mr. Kelly’s Testimony 

Finally, Wilmington seeks to exclude Daniel Kelly’s testimony at trial, arguing 

that the government did not properly disclose him as a witness. Pl. Mot. at 37–38. But

Wilmington critically undercuts its own argument. In its motion in limine, Wilmington 

concedes that the government included Mr. Kelly in its initial disclosures as one of 13 

individuals who may possess discoverable information. Id. at 38. Wilmington also 

acknowledges that, in response to an interrogatory seeking a more definite list of trial 

witnesses, the government incorporated its initial disclosures by reference. Id.; Def. 

Resp. at 24. While Wilmington understandably would have preferred a more specific 

witness list at the outset, the Court cannot conclude that the government somehow 

failed to disclose Mr. Kelly as a potential witness. To the extent that Wilmington 

believes that it will be prejudiced by not having deposed Mr. Kelly, Wilmington should 

have filed a timely motion to reopen discovery for the limited purpose of taking Mr. 

Kelly’s deposition and not wait until this late date to seek the exclusion of his 

testimony.

6 This conclusion also resolves the additional issue of Mr. Moore’s and Ms. Sachs’ testifying at 

trial. The government originally did not disclose that Mr. Moore and Ms. Sachs would be called 

as witnesses; rather, the first mention of their testifying was in the government’s witness list 

submitted along with its pre-trail memorandum. See ECF No. 64-1. Wilmington, in its motion 

in limine, moved to have them excluded pursuant to RCFC 37. Pl. Mot. at 37. The government 

in response indicates that it included Mr. Moore and Ms. Sachs on the witness list only “out of 

an abundance of caution” because the government was concerned that “Wilmington might 

attempt the type of collateral attack on Dr. Grigg’s report that it attempts with this motion in 

limine.” Def. Resp. at 21 n.11. Because the Court will permit Dr. Grigg to address Mr. Moore’s 

and Ms. Sachs’ analysis, there is no need for them to testify at trial and, accordingly,

Wilmington’s motion to exclude their testimony is DENIED as moot. 
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CONCLUSION

The parties’ motions for leave of the Court to file responses to the pre-trial 

memorandum of contentions of fact and law hereby are GRANTED. For the reasons 

explained above, the Court DENIES the government’s motion in limine and DENIES 

Plaintiff’s motion in limine. 

IT IS SO ORDERED.

s/ Matthew H. Solomson 

Matthew H. Solomson 

Judge