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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Greyhound Lines Incorporated,

Plaintiff, 

v. 

Viad Corporation, 

Defendant. 

No. CV-15-01820-PHX-DGC

AMENDED ORDER 

 Plaintiff Greyhound Lines Incorporated (“Greyhound”) moves to exclude all or 

parts of the expert testimony of Thomas J. Schruben, an expert witness for Defendant 

Viad Corporation (“Viad”). Doc. 85. The Court has reviewed the parties’ briefing and 

concludes that oral argument will not aid the Court’s decision. The request for oral 

argument is therefore denied. Fed. R. Civ. P. 78(b). The Court will address each of 

Greyhound’s arguments. 

 1. Undisclosed Documents. 

 Greyhound argues that Schruben failed to disclose all of the documents he 

“considered” in developing his expert opinions as required by Rule 26(a)(2)(B)(ii). 

Specifically, one entry in Schruben’s expert report noted that he “had access to” 

documents produced in this litigation, but failed to state which documents and whether he 

had considered or relied on them. Greyhound complains that it devoted significant time 

trying to identify these documents in Schruben’s deposition, without success, and that its 

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inability to identify these documents will hamper its ability to cross-examine Schruben at 

trial. Viad responds that Schruben’s 57-page report cites more than 700 specific 

documents he relied on in forming his opinions. 

 The Court will not exclude Schruben’s testimony on this basis. Schruben will not 

be permitted to rely on any document during his trial testimony that he did not identify in 

his report or in response to deposition questions. As his testimony will likely be only as 

reliable as the evidence upon which it is based, this limitation adequately protects 

Greyhound against unfair prejudice or surprise at trial and prevents Schruben from 

attempting to bolster the credibility of his opinions by citing documents he did not 

disclose. 

2. Failure to Disclose ACRM.

 Greyhound states that Schruben’s report simply identified his work for the last ten 

years as an “environmental consultant,” and failed to disclose that most of his work was 

performed for ACRM, a company that assists underground storage tank fund managers. 

Greyhound argues that it was required to spend an inordinate amount of time pursuing 

this information in Schruben’s deposition and could have prepared for a more effective 

deposition if the information had been disclosed in his report. Viad responds that 

Schruben’s report and resume did disclose that he consults for state fund managers, and 

notes that Greyhound never expressed concern – to Viad or the Court – about the amount 

of time it had to depose Schruben. 

 The Court will not exclude Schruben’s testimony on this basis. The information 

was disclosed during Schruben’s deposition, is now known to Greyhound, and can be 

used in preparing for Schruben’s testimony at trial. Indeed, Greyhound’s argument on 

this point appears to be something of a rehearsal for that cross-examination. 

3. Schruben’s Alleged Legal Opinions.

 Greyhound cites the following heading from Schruben’s opinion: “Environmental 

Obligations Arising From UST Leaks Of Which Viad Was Notified Before March 2, 

1992.” Doc. 96 at 7. From his heading alone, Greyhound concludes that Schruben is 

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offering improper legal opinions on the meaning of “Notice” and “Environmental 

Obligations” in this case. Doc. 85 at 11-12. Viad makes clear in its response, however, 

that Schruben offers no opinions on the legal interpretation of these terms. Doc. 93 at 11. 

Viad agrees that the Court will resolve the meaning of these terms. Id. at 10. No further 

ruling is required. 

4. Line Leak Detector at the Jacksonville Property.

 The parties disagree on the nature of Schruben’s opinion. Greyhound claims that 

it is based on the fact that a line leak detector was removed at the Jacksonville property, 

when in fact none was ever in place. Viad argues that Schruben’s opinion is based on the 

absence of a detector, whether removed or absent from the outset, as well as other facts, 

such as failure of a tightness test. 

 This factual disagreement does not require exclusion of any Schruben opinion in 

this bench trial. The Court will be able to resolve this issue on the evidence presented at 

trial, and to assess the credibility of Schruben’s testimony based on Greyhound’s claim of 

a factual error. See KnightBrook Ins. Co. v. Payless Car Rental Sys., Inc., 43 F. Supp. 3d 

965, 985 (D. Ariz. 2014). 

5. Alleged Defects in Opinions.

 Greyhound notes that Schruben failed to explain the presence of some 

contamination at the Seattle property, failed to consider possible sources of gasoline 

contamination at the Portland property, and failed to consider alternative sources of 

contamination at the Miami property. Viad responds that Schruben’s opinions are limited 

to whether the contamination for which Greyhound seeks cleanup costs relates to tank 

leaks of which Viad had notice before March 1, 1992 – Schruben’s purpose is not to 

pinpoint the source of all contamination. 

 The Court will not exclude Schruben’s testimony on this basis. The parties again 

have differing views about the import of his testimony, and Greyhound will be fully 

capable of presenting its view and exposing weaknesses in Schruben’s testimony at trial. 

As the Supreme Court has noted, “[v]igorous cross-examination, presentation of contrary 

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evidence, and careful [attention to] the burden of proof are the traditional and appropriate 

means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharm., 

Inc., 509 U.S. 579, 596 (1993). This is particularly true in light of the fact that this will 

be a bench trial. See KnightBrook, 43 F. Supp. 3d at 985. 

IT IS ORDERED that Greyhound’s motion to exclude (Doc. 85) is denied. 

 Dated this 7th day of November, 2016. 

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