                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2009

USA v. Fleet Mgmt Ltd
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2600




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2600


                          UNITED STATES OF AMERICA,
                                            Appellant

                                            v.

                            FLEET MANAGEMENT, LTD.;
                               PARAG RAJ GREWAL;
                               YEVGEN DYACHENKO


                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
    (D.C. Criminal Nos. 2-07-cr-00279-001, 2-07-cr-00279-002, 2-07-cr-00279-003)
                     District Judge: Honorable John R. Padova*


                                 Argued March 23, 2009

              Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

                                  (Filed: May 28, 2009)


________________

    * This matter comes before the Court as an interlocutory appeal from the District
Court’s Memorandum and Order, entered April 29, 2007, denying Defendants’ joint
motion in limine to exclude expert report and testimony. The subject order was issued by
Hon. John R. Padova, Senior Judge of the U.S. District Court for the Eastern District of
Pennsylvania, to whom this matter was originally assigned. The District Court case was
subsequently reassigned to Hon. Harvey Bartle, III, Chief Judge of the U.S. District Court
for the Eastern District of Pennsylvania.
John E. Arbab, Esq. [ARGUED]
John L. Smeltzer, Esq.
U.S. Department of Justice
Environment & Natural Resources Division
P. O. Box 23795
L’Enfant Plaza Station
Washington, DC 29926

Joan E. Burnes, Esq.
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
  Counsel for Appellant

Dennis F. Gleason, Esq.
Carl R. Woodward, III, Esq. [ARGUED]
Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein
5 Becker Farm road
Roseland, NJ 007068
Counsel for Appellee
  Yevgen Dyachenko

Marc R. Greenberg, Esq. [ARGUED]
Joseph A. Walsh, II, Esq.
Keesal, Young & Logan
400 Oceangate
P. O. Box 1730
Long Beach, CA 90801-1730
Counsel for Appellee
  Fleet Management, Ltd.

Toby K. Mergler, Esq.
W. Bruce Pasfield, Esq.
Alston & Bird
950 F Street, N.W.
Washington, DC 20004
Counsel for Appellee
  Parag Raj Grewal




                                            2
                                OPINION OF THE COURT



RENDELL, Circuit Judge.

       The government appeals from the District Court’s denial of its motion in limine

and resulting exclusion of the expert report and testimony of Marine Science Technician

Chief Matthew Jones (“Jones”), proffered to prove that oil-contaminated bilge water and

sludge (“oily waste”) was discharged from the Valparaiso Star (“the Ship”) into the sea in

January 2007, violating several federal statutes. We have jurisdiction over this appeal

pursuant to 18 U.S.C. § 3731.

       We review the District Court’s order for abuse of discretion.1

       The events surrounding the investigation conducted by Jones, and his extensive

testimony at the Daubert hearing regarding his experience, activities, reasoning, and

conclusions, are well known to the parties and will not be recounted here. Jones opined

that the oily waste was discharged into the sea. The District Court excluded Jones’s

opinion after conducting the Daubert hearing, and issued a thorough, 15-page opinion

setting forth his basis for excluding Jones’s report and opinion. We find the District




  1
    We apply an abuse of discretion standard when reviewing a district court’s decision to
admit or exclude expert opinion testimony and its decisions as to how to determine the
reliability of that testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999);
Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).

                                             3
Court’s opinion to be persuasive and correct. We wholeheartedly adopt its reasoning and

conclusion and will affirm.

       On appeal the government levels two basic attacks on the District Court’s

reasoning. First, it urges that the Court misapplied the “reliability factors” – namely as

to Jones’ experience and the general acceptance of his methodology; and second, it urges

that the District Court erred in crediting alternative explanations as to why the oily waste

may have been unaccounted for – other than discharge into the sea.

       We will not concern ourselves with Jones’s expert qualifications, but assume for

our purposes that they are acceptable.2 The real issue before the District Court, and

before us, concerns the “reliability” of Jones’s opinions, based upon his methodology.

See Daubert v. Merrell Dow Pharms. Inc., 609 U.S. 579, 589 (1993).

       The government urges that Jones’s methodology was that of “reasoning to the best

inference,” akin to a form of analysis known as “differential diagnosis,” as described by

our court in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 758 (3d Cir. 1994)




  2
    The District Court did not rule as to Jones’s qualifications. Although Jones has
conducted over 800 inspections of foreign vessels over seven years, including review of
vessel records relating to the proper management of oily wastes, only 10 of these
inspections involved potential violation of the International Convention for the Prevention
of Pollution From Ships (commonly referred to as “MARPOL,” an abbreviation for
marine pollution), or the Act to Prevent Pollution from Ships (“APPS”). 33 U.S.C. § 1901
et seq. However, qualifications are to be judged according to a “liberal minimum
qualification” standard, and we thus assume that Jones was qualified to testify as an
expert. See Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997).

                                              4
(“Paoli II”). Differential diagnosis is the basic method used in internal medicine and

involves:

              the determination of which of two or more diseases with
              similar symptoms is the one from which the patient is
              suffering, by a systematic comparison and contrasting of the
              clinical findings.

Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 807 (3d Cir. 1997) (quoting Stedman’s

Medical Dictionary 428 (25th ed. 1990)) (emphasis added).

       As applicable here, reasoning to the best inference would involve the systematic

and objective elimination of alternative causes. Unfortunately for the government,

Jones’s expert report does not refer at all to alternative causes. Instead, the report recites

what Jones learned upon his inspection and notes that what he saw was “consistent with

the allegation that the bilge/ballast pipes were used as a delivery system to discharge bilge

directly from the bilge wells into the ocean.” (App. 669-70.) Nowhere in the report does

Jones address other potential causes.

       Jones fared no better at the Daubert hearing. During his direct testimony he failed

to volunteer any information as to any alternatives that he considered – other than the

discharge to a reception facility – let alone as to why he objectively and systematically

rejected them. In response to the direct question on cross-examination as to the basis for

his opinion that waste was discharged overbroad while the ship was at sea, he stated:

               A: Reviewing the oil record book, the tank sounding logs
              and the bridge log for the location of the vessel and you
              know, the receipts, too, that there wasn’t anything that was
              discharged to a reception facility. And then the other thing

                                              5
              that helped me determine that, too, was I asked questions of
              the captain and the chief engineer and everything of why the
              tank levels dropped during those days and they didn’t have an
              explanation for me.

Transcript of motions hearing on January 30, 2008, p. 194. (App. 177.)

       The government characterizes Jones’s reasoning process as his having “draw[n] an

inference from the allegations of Singh and Dhabel . . .” as “the best explanation among

possible explanations for what happened to oily waste aboard the Ship on January 14-15,

2007.” (Appellant’s Br. 39.) However, in his testimony offered in support of the

admissibility of his opinion, he was totally silent as to what other explanations he

considered, other than discharge at a reception facility. While certain facts might have

supported a permissible inference as to discharge, as the government urges, the very

hallmark of the methodology relied upon is the elimination of alternative causes. This

Jones did not even attempt to do in either his proffered report or his testimony.

       The government attempts to undermine the other possible causes identified by the

District Court and appellees by arguing that Jones effectively dealt with them and

demonstrated that they were not plausible.3



  3
   The government argues that alternative hypotheses should be the basis of cross-
examination and their absence should not be a basis for exclusion of the expert opinion.
However, if reasonable alternative causes or explanations have not been considered, that
necessarily undermines the reliability of the “reasoning by inference” – the very
methodology that the government says was followed by Jones.

Accordingly, the existence and viability of other alternatives are important to the
admissibility inquiry.

                                              6
       As to the possibility that the oily waste was moved to another tank on the ship,

Jones relied on what he was told by crew members and examined only the four tanks that

the records indicated were used for oily waste and were listed as tanks appropriate for

holding oily waste (three of the four tanks were so listed). He did not consider whether

the oil might have been transferred to other tanks on board, or explore the allegation of

sabotage.

       Similarly, as to his failure to consider other possible uses for the hose with oil

residue, the government urges that Jones could simply rely on what others told him.

Jones testified that:

               A: If someone had told me that when I was asking what the
               hose was used for and no one could explain what that hose
               was used for, then I might consider that, but when no one
               even would admit they had ever even seen the hose before,
               no, it wouldn’t change my opinion.

(Transcript of Testimony of Matthew Jones at Daubert hearing, App. 378.)

       In its brief, the government contends that “[t]hat explanation makes perfect sense:

Chief Jones cannot logically be required to offer a rejoinder when no alternative

explanation was tendered at the time of his Port State Control inspection.” (Appellant’s

Br. 47-48.)

       However, we believe that an expert’s investigation requires inquiry and actual

investigation, not a determination based solely on what the expert is told. The District

Court’s criticism of Jones’ failure to consider the length of the hose, or the fittings’



                                               7
match, was not a “quibble,” as the government urges; it was an appropriate challenge to

his failure to conduct his own investigation rather than rely on what others told him.

       The government’s argument as to the reasonableness of Jones’s explanation for

discarding the third possible alternative – that is, as to other ways in which oil “could

have infected” the bilge/ballast discharge value – is similarly flawed. Again, it urges that

he need not have pursued the theory of sabotage “when the proponent of that theory was

unwilling to provide him with even a minimum quantum of supporting evidence.”

(Appellant’s Br. 49, 50.)

       We submit that one who accuses his fellow crew members of sabotage may well

stop at pointing an investigator in the direction of the real cause. The trained investigator

would not be stymied by such silence, but, rather, should be alerted to the need to then

conduct an independent investigation. In short, the government’s excuse for Jones’s

failure in this regard is unconvincing.

       Simply stated, Jones’s reasoning did not rule out other possible causes, or provide

“an intelligible response as to why it was not the actual cause.” Hines v. Consol. Rail

Corp., 926 Fed. 262, 270 n.6 (3d Cir. 1991). Instead, he accepted the cause that was

consistent with the what the whistleblower, Gopal Singh, told him. He did not conduct a

“differential diagnosis.”4   Therefore, he failed to follow the reliable methodology that he



  4
   The Appellees also contest at length the “systematic” nature of Jones’s methodology.
(Appellees’ Br. 35-39.) We agree that his manner of testing and assessing the evidence
was flawed in many ways. No further discussion is necessary.

                                              8
urges as the basis for the admissibility of his opinion, and his opinion could thus be

excluded. The District Court so held, and we agree.5

       Based on the foregoing, and given the latitude given to the District Court under the

abuse of discretion standard, as explicated by the Supreme Court in Kumho Tire, we will

AFFIRM.



US v. Fleet Management, No. 08-2600
JORDAN, Circuit Judge, dissenting

       I agree with the Majority that Chief Marine Science Technician Matthew Jones did

not employ “reasoning to the best inference”6 or “differential diagnosis” during his

January 2007 investigation into whether oily waste was discharged from the Valparaiso

Star. I also agree that the admissibility of Jones’s expert testimony on the subject turns

on its reliability.7 However, because I believe that Jones proffered reliable opinions,

  5
    We submit that the nature and reliability of Jones’s opinion that the oily waste was
discharged into the ocean bears no resemblance to the nature and reliability of an
experienced police officer’s opinion as to whether certain conduct is consistent with that
of drug traffickers. Thus, we disagree with the view of our dissenting colleague.
  6
    I do not mean that Jones did not use his experience and sound reasoning in reaching
his conclusion, only that he did not necessarily follow a formal, scientific method.
  7
   Under Fed. R. Ev. 702:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, or education, may
       testify thereto in the form of an opinion or otherwise, if (1) the testimony is
       based upon sufficient facts or data, (2) the testimony is the product of
                                                                                 (continued...)

                                              9
despite not employing the methodology that the government later attributed to his

investigation, I respectfully dissent.

       It is important to keep in mind what Jones brings to this case. He does not purport

to be anything more than a law enforcement officer asked to provide opinions concerning

a criminal investigation that he undertook. To condition the admissibility of those

opinions on the scientific precision of Jones’s investigative methodology is contrary to

our precedent and to logic.

       Our decision in United States v. Davis, 397 F.3d 173 (3d Cir. 2005), is instructive.

There, two police officers witnessed shots being fired from another vehicle and gave


  7
   (...continued)
        reliable principles and methods, and (3) the witness has applied the
        principles and methods reliably to the facts of the case.

From this Rule, there has been extracted “a trilogy of restrictions on expert testimony:
qualification, reliability, and fit.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d
396, 404 (3d Cir. 2003) (citation omitted).
        The Supreme Court stated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993), that “[fit] goes primarily to relevance,” in that the testimony must “aid the jury in
resolving a factual dispute.” Id. at 591. Because the ultimate issue in this case concerns
whether appellees unlawfully discharged oily waste, Jones’s testimony regarding whether
such discharge occurred is profoundly relevant.
        As to the “qualification” prong, we have “eschewed imposing overly rigorous
requirements of expertise and have been satisfied with more generalized qualifications.”
In re Paoli Railroad Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (“Paoli II”) (citing
Hammond v. Int’l Harvester Co., 691 F.2d 646, 652-53 (3d Cir. 1982); Knight v. Otis
Elevator Co., 596 F.2d 84, 87-88 (3d Cir. 1979)). The District Court did not question
whether Jones satisfied this prong, and, as a formally trained and experienced maritime
inspector with seven years of experience and more than 800 vessel inspections under his
belt, he surely did. Because, however, “the level of expertise may affect the reliability of
the expert’s opinion,” Paoli II, 35 F.3d at 741, the precise nature of Jones’s qualifications
are relevant to the “reliability” discussion that occupies the remainder of this dissent.

                                             10
chase. Id. at 176. Eventually, the vehicle stopped and the four occupants fled. Id. at 177.

One of the occupants, Davis, pointed his firearm at an officer, and the officer shot Davis,

who fell to the ground. Id. A firearm was recovered from the area where Davis fell, and

money and packets of cocaine base were taken from his person. Id. Firearms were either

found on, or linked to, the other occupants, and numerous packets of cocaine base were

discovered in the vehicle. Id. At trial, the District Court permitted one of the officers,

Derrick Garner, a fourteen-year veteran of the police force with twelve years of

experience investigating narcotics cases, to provide expert testimony that the actions of

Davis and the other vehicle occupants were consistent with drug trafficking. Id. at 177,

179.

       Davis contended on appeal that the testimony was inadmissible because there was

no scientific basis for Garner’s opinion. Id. at 178. We rejected that argument, holding

that, in a case where the proposed expert is a law enforcement officer, instead of a

scientist, questioning the “science” of his method – by asking whether it had been subject

to scientific testing or peer review, whether it had a known or potential rate of error, or

whether it was generally accepted – was a futile exercise. Id. Like the Supreme Court,

we “recognized ‘that there are many different kinds of experts, and many different kinds

of expertise,’” and that evaluating factors that speak to the scientific precision of a non-

scientist’s opinion sheds no light on whether that opinion is reliable. Id. (quoting Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)). Instead, we were “satisfied that ... he

provided a reliable opinion based on years of experience.” Id.

                                              11
       As applied to the case at hand, Davis directs us to assess the reliability of Jones’s

opinion by reference to his relevant experience, not by asking whether his investigative

method fits the ill-advised post-hoc label that the government has applied to it.

Accordingly, we must examine whether Jones’s professional experience qualifies him to

render the opinions he proffered. See, e.g., Calhoun v. Yamaha Motor Corp., U.S.A., 350

F.3d 316, 322-23 (3d Cir. 2003) (“An expert may be generally qualified but may lack

qualifications to testify outside his area of expertise.”).



       Jones is a certified Foreign Vessel Inspector, who, as of May 21, 2007, had been

inspecting vessels for the U.S. Coast Guard for seven years. During that time, he had

conducted more than 800 inspections – inspections that required him to examine

equipment and records related to oily waste management. Prior to becoming an

investigator, he spent three years working as an engineer on Coast Guard cutters, where

he maintained the same sort of equipment that he examined on the Valparaiso Star. He

has received formal training as a Marine Science Technician, and he has attained

qualifications from the Coast Guard as a Pollution Investigator, a Boarding Officer for

foreign vessels, a Hull Inspector, and a Machinery Inspector.

       Appellees complain that Jones lacks the usual trappings of a science scholar.

Specifically, they say that “[h]e has never published any scholarly or peer[-]reviewed

papers on any topic relevant to his testimony,” nor does he “possess any formal degrees”

or belong to “any professional society or association that purports to have expertise in

                                               12
tank soundings, tank volumes, or marine engineering.” (Appellee’s Br. at 50.) Such

contentions, which ignore the lack of journals and professional societies devoted to

Jones’s line of work, only reinforce my belief that it is unwise to treat law enforcement

officers like scientists when evaluating the reliability of their expert opinions. Besides,

we have held many times over that professional experience, in lieu of formal training or

education, can serve as the basis for expertise. See, e.g., Pineda v. Ford Motor Co., 520

F.3d 237, 247-49 (3d Cir. 2008); Davis, 397 F.3d at 178-79; Schneider, 320 F.3d at 405-

06 (3d Cir. 2003).

       The Majority notes that only ten of the 800 vessel inspections that Jones conducted

involved potential violation of the laws that appellees are accused of violating. (Maj. Op.

at 4 n.2). While that fact may well bear on the persuasive effect of Jones’s opinions, it

should not render them inadmissible. As we have said before, “most arguments about an

expert’s qualifications relate more to the weight to be given the expert’s testimony than to

its admissibility. Thus, witnesses may be competent to testify as experts even though

they may not ... be the ‘best’ qualified. Who is the ‘best’ qualified is a matter of weight

upon which reasonable jurors may disagree.” Holbrook v. Lykes Bros. S.S. Co., Inc., 80

F.3d 777, 782 (3d Cir. 1996).

       By excluding Jones’s expert testimony, the District Court took that credibility

determination from the fact-finders. While a district court enjoys wide latitude in which

to make evidentiary decisions, it “must be careful not to mistake credibility questions for

admissibility questions.” Kannankeril v. Terminix Int’ Inc., 128 F.3d 802, 809 (3d Cir.

                                             13
1997). To err in that manner, by excluding an expert opinion that meets the minimum

standards of admissibility, is an abuse of discretion. See id. Because I believe that

Jones’s opinions are sufficiently reliable to be admitted, I would reverse the District

Court’s ruling.




                                             14
