Free Motion in Limine - District Court of Federal Claims - federal

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Case 1:98-cv-00126-JFM
Telephone Conference

Document 816-16

Filed 06/01/2004

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S~ptember 6, 200r:'

Washington, D.

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IN THE UNITED STATES COURT ' OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC
COM~ANY ~ et al.,

Plaintiffs,
Case Nos.
THE UNITED STATES ,
98-126C, 98-154C,

Defendant.

98-474C

Washington, D. C.
Friday, September 6, 2002
Telephone conference with Judge Merow , in
the above~ enti

tIed matter, taken

at the offices of

Spriggs & Hollingsworth, 1350 I Street, N. W.,
Washington, D~C., at 2:22 p.

, Friday, September 6,

2002, and the proceedings being taken down by

Stenotype by CYNTHIA R. SIMMONS, RMR, CRR, and
transcribed under her direction.

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Telephone Conference
Washington, D.
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September 6 , 2002

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APPEARANCES:
On behalf of the Plaintiffs Yankee Atomic Maine Yankee and Connecticut Yankee: ROBERT SHAPIRO, ESQ. DEAN MURPHY, ESQ. Spriggs & Hollingsworth 1350 I Street, N. Washington, D. C. 20005-3305 (202) 898-5884
On behalf of the Defendant: ERIN E. POWELL, ESQ. KEVIN CRAWFORD, ESQ. United States Department of Justice Civil Division 1l0OL Street, N. Washington, D. C. 20530 (202) 514-7300

report. One of those as a shorthand could be ~id that plaintiffs' damage claim is speculative. Mr. Fischel testified that he did not do a
quantitative analysis in order to reach ~at

conclusion, and I asked was t!;1.ere a name for the analysis that he did do in order to reach that conclusion, and that's really the question that rm trying to get an answer to. And he has declined to answer that question. Let me see in can find the
particular exclulitge.

Question: Mr. Fische~ you said

Wednesday, I believe you said Wednesday that you did
not perform a quantitative analysis III order to

determine the plaintiffs' damage claim. is
speculative. Is there Ii name that you would use for

the type of analysis that you did do? Answer. Not other than what I've already
described at great length.

. 19

Question: So this analysis does. not have a particular name, it jus~ needs to be described at
great length.

Answer: No, I didn t say that either.
I've just said I've covered it so extensively that I

don t know if there s anything that I can add to what
I've already said, particularly on Wednesday.

cO)
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PRO CEED INGS
MR. SHAPIRO: Your Honor, I appreciate your taking the time to talk with us this afternoOn. We had a (:Ouple of questions this morning. One in particular I was trying to get the ariswer to , and for whatever reason the witness , and this is an expert
witness deposition , WIjS declining to answeqhe

I had another question, I didn t see it
What's the name of the analysis that you did perform to determine that plaintiffs' damage claim IS

speculative? The witness says , as I said, I don
really have anything to add to what I've said. Your Honor, I'm trying to determine , does

question other than: to say, other th;m to refer to previous statements, which certainly in my opiniim did not answer the question.
I'm pausing, I'm trying to see if I can

the analysis have a name or not, seems like a fairly
straightforward. question.

JUDGE MERO W: Are you looking for economIc

find in our rough transcript as best I can the specific question rather than simply characterizing
it.

JUDGE MEROW: Who is the witness, while you re at it?
MR. SHAPIRO: This is Daniel Fischel who

is oheofthe government' s experts who purports to be; again; I'm looking for the exact language in his

jargon , so to speak? In other words , sort of a professiollal characterization of some kind of analysis in his report? MR. SHAPIRO: That's right. We re trying to frankly test the reliability of Mr. Fischel's opinions and as best as I can determine there s no particular analysis that was done that you can put your name on, you know, that someone else could test,
that it's the same analysis that comparable experts

report, he says he s been asked to analyze plaintiffs' damage claim from an economic perspective. JUDGE MEROW: Right. MR. SHAPIRO: And in one of Mr. Fischel' conclusions, he has two principal conclusions in his

are used to doingAt least there s certainly nothing that so far I' ve been able to get that I can find in the four corners of the report or, or in the testimony, what Mr. Fischel would call the analysisI mean, I certainly asked the question , if

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he had a, if there s a name for what he did, it's easy enough to anSwer the question and for whatever reason he s declined to do so. And if there isn t a 4 name, I'd just like to know that, too , that's not necessarily conclusive of anything. But gee; I ought to be able to get a simple answer to a simple
question. And thus far I've been thwarted from doing so.

analysis that an expert purports to use does not h!lve

2 a name as it's used in the regular course by
comparalJle experts, but I'd like to be able to know that one way or the other. If Mr. Fischel was able to characterize ' the kind of analysis that he' s done with a name so that we could check to see, is there a literature that uses the same sort ofi1ame that
refers to that kind of analysis or not, I'd like to be able to. do that. But I'ightnow I can t even 'get

MS. POWELL: ' Yes , You~Honor wewolild not, we certainly don t accept Mr. Shapiro characterization of Mr. Fischel' s testimony. We don t have the realtime in' front of us as Mr. Shapiro does however, I do:hilve to' say that Mr. Fischel , IS answered that question many times on Wednesday and also this morning. Again, he explained in detail the methodology. I also have to say that it's not my . 20 recollection that Mr, Fischel testified that he did not do a quantitative analysis. I think in one of the questions that Mr. Shapiro asked.this morning, Mr. Fischel corrected Mr. Shapiro and stated that he would not say that, that he did not doa quantitative analysis.

anything? .

JUDGE MEROW: Ms. Powell, do' yoirhave

10 an answer to the question as to whether or not it has

20

22 23 24 25

support for the analysis that. was made, any MR. SHAPIRO: Well there s certain - we 16 haven t gotten to all of that. There are certain 17 parts ofMr: Fischel' analysls that does cite, that 18 does cite literature but not the, for the overall 19 conclusion that plaintiffs' damage claim is speculative. There s no particular literature cited 21 for a methodology there. JUDGE MEROW; So thatwould be the Fischel analysis?

12 14 15

11 a name.
JUDGE MEROW: Well , did somebody ask him

13 if he relied on any literature in-terms of the

MR.SHAPIRO: I guess that would be a shorthand way to characterize it. I'm trying to see

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;5
6

So III short what Mr. Fischel has done, he has talked most ofWednesdliy afternoon arid approximately an hour this morning tehashing the methodology that he did in fact use in his report. .And we gdtto a point where Mr. Shapiro s looking fot I think. a: quick one or two-word phrase to summarize what Mr. Fischel did: And Mr. Fischel' s point was that; it was not a one or two-word ph,rasc that could

if there is anyone else who uses that analysis. I 2 mean, I asked, its further back but I think this was
yesterday, how Mr. Fischel would characterize at least the field; was this economic analysis? And iny recollection is the answer was more that he s a, in this respect in determining that a damage claim is speculative, that he s simply a damage expert; there might be some aspect to economics to it but be s a
damage expert.

7

summariie in fact thernethodoio gy

tbathe used.

; II he rehashed it again this morning, and only after'

10 He' explainedit eXtensively Wednesday and

11 for a damage expert to determine that plaintiffs
12 damage claim was speculative, is there a particular

10

And I'd like to know , wbll, gee, in order

12 repealed questions, to which the government did of 13 coUrse olJject " asl(ooand answered;" did Mr. 'Fischel 14 say he could not add in fact anything' more to what
15 he s already said. And unfortunately, that's what's

13 analysis that you have to do or is it one of those
14 " you know it when you see it"kinds of things. And 15 at the moment I' m left with that latter conclusion.

MR. SHAPIRO: Yout I!onor, I mean 18 Ms. Powell has implied that the analysis , again, I . 19 think she said you ICnow, does ilOtnecessarily have a 20 specific name, andifthat~s the answer I get, that's fine. But I haven t been able to clearly get an

17

16 brought us before you this afternoon.

16

WOGE MEROW: That isa very good question

17 because like in lost profits claims; one of the

21 22 admission that that's the case. I asked that 23 question and the response was , no; I didn t say that 24 either. I just said I've covered that extensively.

22 23
175

20 profits is too speculative. We just went through 21 tb.atin a recent decision by the circuit
And I don t know if that' s a legal

18 problems is determining whether or not analysis used 19 by, you know, presenting cases for trial , lost

25 Again , it' s not conclusive that an

24 something that economics experts or accounting 25 experts or someone ' else can put a faCtor on, some

Conclusion or whether it' s a, you know, whether its

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kind of a risk factor in terms of determining whether it's more likely to happen or not likely to happen, or something of that nature. But that's a very interesting question. I don t know Wh9 would be, you. know within the literature. or the expertise. Judges have to reach that decision as a matter of reaching an opinion from his presentation. So I guess we could use all the help we could get in reaching that conclusion, but I don t know what you d call the analysis. MR. SHAPIRO: I guess you re getting tQ the nub of, you know, the point to my questions, Your Honor, . that of-course, and I think it might have even been me.ntionoo. by Mr. Fischel who himse!f is a distinguished law professor that, of cOurse;
ultimately the que.stionofwhether or not plai.ntiffs

JUDGE MEROW: Right. MS. POWELL: And we again went to it this morning. And I believe even in the portion that Mr. Shapiro read to you, he was not declining to
answer buth~ was just referencIng all of his

previous answers that he had already given. JUDGE MEROW: Right. Well , if there some famous economist who s done this same kind of analysis in the past that he s relying on as support for that and , you know, and the literature has the name of this. person who s done, who s won a Nobel Prize for making this kind of analysis, something like that is the kind of tb.ing you could disclose that that that' s the; basis for doing it this way. Ifhowever it's logic and his own analysis , then that' s fine.
I take it that's what Mr. Shapiro is looking for. MR. SHAPIRO: That' s right. I' d like to know , is there something, there doesn ~ have to be obviously a Nobel laureate s name to it, but is there a particular nomenclature that this sort of analysis is known by in the field? Or is this just , as you put it, Your Honor, Mr. Fischel' s own logical

damage claim is sp-~ulative is an issue for the court. And thequestiQn in some significant respect is going to be as to whether or not his proposed testimony can properly assist the court, and frankly one of the things I' m looking at is the Daubert question, is it reliable testimony, reliable expert testimony or. not. JUDGE MEROW: Right.

reasoning?

Page il

Page i3

MR. SHAPIRO: We re not going to question that Mr. Fischel is a distinguished academician is extremely smart; .but there s certain indicia that an analysis has to have. And at least! was trying to get to first base and determine whether or not well gee, does this analysis have a name and I can t even
find out yes or no to that question.

JUDGE MEROW: Well if there is it's been a long time since I've taken economics courses but I; you know , Ijustdon!~know. Whether or not, it seems to me aquestion that would be capable oran answer if there is some sort of expert analysis that has a literature- based background to it that you
would apply risk analysis or something ofthat nature
Mr.

that you could characterize this , then fine , I assume Fischel would know. So if he can answer, he should. If he can t answer, he should say he can t answer it; he doesn t know. MS. POWELL: Your Honor, this is Erin Powell , I think the point is that Mr. Fischel can
answer it and has in fact answ~red it numerous times

JUDGEMEROW: There always has to be an initial , this could become known as the Fischel theory later on. So -THE WITNESS: Forgive. me, Your Honor, I'm here, this IS Dan Fischel. I' m listening to the colloquy and flattered that anything that I might say could get that level:cif distinction. Very unlikely. JUDGE MEROW: Right. Well , t'Ar. l'ischel if you do know of any past literature or expertise or something of this nature, fine, answer the question. If you don t, then that' s fine too , you just have to say that you , you re not sure of any, if anyone has reached this level of analysis before, but sufficiently to put it in papers and be awarded prizes for it. THE WITNESS: Your Honor, I understand your, the import of your comments. I've tri~ to do
that, I believe in my

previous answers but I'm happy

and that was what, that is what I think b~ought the case before you; Most of Wednesday afternoon was spent explaining his analysis.

to do it again so that there s a clear record of the issue as presented to you. JUDGE MEROW: All right. I' m satisfied with that Anything else, Mr. Shapiro? MR. SHAPIRO: Not at the present time Your Honor. I appreciate your assistance. I hope we don t have anything further.

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2 if you do.

JUDGE MEROW: Okay. Fair enough. Call in

MR. SHAPIRO: Thank you very much. MS. POWELL: Thank you, Your Honor. JUDGE MEROW: Thank you Ms. Powell and Mr. Crawford. I' ltsign off now. (Whereupon, at 2:36 p. , the conference was adjourned.

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Alaerson Kepornng company, inc.
1111 14th Street, N. W. Suite 400 1- 800-FOR- DEPOWashington; DC 20005

----- - - - - - - - - - - - - -~. - ------""'.--- -"-'
Case 1:98-cv-00126-JFM
Daniel Fischel

. ...~

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October 9 , 2002

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

X .
: C. A.

Page 440

YANKEE ATOMIC ELECTRIC

CEnT~rIED

COpy

,.J

COMPANY, MAINE YANKEE ATOMIC, :

POWER CO., and CONNECTICUT
YANKEE ATOMIC POWER CO.,

Nos. 98- 126C,

Plaintiffs,
UNITED STATES OF AMERICA

: 98- 154C,

98- 474C

(Senior Judge Morrow)

Defendant.

(VOLUME IV)

Washington, D. C .
Wednesday, October 9, 2002

Deposition of DANIEL FISCHEL, a witness
herein, called for examination by counsel for
Plaintiff in the above- entitled matter, pursuant

to notice, the witness being duly sworn by LORI
MACKENZIE, a Notary Public in and for the District

of Columbia, taken at the offices of Spriggs &

Hollingsworth ,

1350 I Street, N.

W., 9th Floor,

Washington, D. C., at 9:06 a. m" on Wednesday,

October 9, 2002, and the proceedings being taken

down by Stenotype by LORI G. MACKENZIE , RPR , and
transcribed under her direction.

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Case 1:98-cv-00126-JFM
Daniel Fischel

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October 9

2002

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One of them was do you have knowledge of

what the requirements are for a nuclear utility to
store greater than Class C waste.

Does this legal brief enable you to check

on that?
MS. POWELL: You can answer. THE WITNESS:
I don

Same objection as yesterday.

I t know,

if you want

me to look again.
BY MR. SHAPIRO:

But, the question is, you don' t know what

the requirements are, do you?

No.

I would have to , if I wanted to

figure them out, I would have to check , to

research ,

whatever.

And, it is not that you knew the
requirements, but simply couldn

I t remember

yesterday or today, it is not something that you
are expert on.

That is for

sure.

And, in fact, you could read the whole
legal brief , but I will represent to you it is not

in that legal brief , it is not something that you
knew and forgot.
MS. POWELL:
Obj ect ion , argument a

t i ve .

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THE WITNESS:

Well, that is a different

issue in the sense that having looked at a lot of

material, it is possible that , at some point in

time, while looking to familiarize myself with

certain issues in the case, trying to get

background for the case, I did see some discussion
of the subject matter of your various questions of

greater than Class C waste, and just doni t

remember.

That is possible.

But, I do not hold myself out as an

expert on the technical requirements of storing or

disposing of greater than Class C
BY MR. SHAPIRO:

waste.

All right.

Let I S go to a new subject.

We spoke at some length yesterday, and the first
two sessions of your deposition, about your
opinion that Plaintiffs

I s damage claim I s expert witness report,

particularly Mr. Graves

hi s op inions are

specul a t i ve ,

And I want to ask how you would compare
that to damage analysis in a different legal case

which you are familiar with , Lexicon v. Milberg

Weiss case,

Are you familiar with that case?

Very familiar with
MS. POWELL:

it.

I am just going to say that

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