     08-4759-cv(L); 08-4993-cv(XAP); 08-6130-cv(CON)
     Ireland v. Suffolk County of N.Y.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                     Appeals
 2       for the Second Circuit, held at the Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 25 th day of February, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       THE BOARD OF TRUSTEES OF THE
15       FREEHOLDERS AND COMMONALITY OF THE
16       TOWN OF SOUTHAMPTON, THE TOWN BOARD
17       OF THE TOWN OF SOUTHAMPTON, CYNTHIA
18       HAMLIN IRELAND,
19                Plaintiffs-Appellants,
20                                                                 08-4759-cv(L)
21                    -v.-                                         08-4993-cv(XAP)
22                                                                 08-6130-cv(CON)
23
24       SUFFOLK COUNTY OF NEW YORK,
25                Defendant-Appellee,
26
27       UNITED STATES OF AMERICA,



                                                  1
 1            Third-Party-Defendant-
 2            Appellee,
 3
 4   JOHN AND JANE DOES 1-10,
 5            Defendants-Appellees,
 6
 7   THE STATE OF NEW YORK, GEORGE E.
 8   PATAKI, ENVIRONMENTAL CONSERVATION OF
 9   THE STATE OF NEW YORK, JOHN P.
10   CAHILL, ALEXANDER F. TREADWELL, FRED
11   NAFFER, WILLIAM DALY,
12            Third-Party-Defendants.
13   - - - - - - - - - - - - - - - - - - - -X
14
15   APPEARING FOR APPELLANTS:   JEFFREY M. POLLOCK, Fox
16                               Rothschild LLP, New York, New
17                               York; Gary Ireland (on the
18                               brief), Law Offices of Gary
19                               Ireland, New York, New York, for
20                               Cynthia Ireland. RICHARD C.
21                               CAHN, Cahn & Cahn, LLP,
22                               Melville, New York, for The
23                               Board of Trustees of the
24                               Freeholders and Commonalty, the
25                               Town Board of the Town of
26                               Southampton.
27
28   APPEARING FOR APPELLEES:    DANIEL A. BARTOLDUS (William J.
29                               Lewis, Marcy D. Sheinwold,
30                               Christina L. Geraci, on the
31                               brief), Lewis Johs Avallone
32                               Aviles, LLP, Melville, New York.
33
34        Appeal from a judgment of the United States District
35   Court for the Eastern District of New York (Cogan, J.).
36
37        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
38   AND DECREED that the judgment of the district court be
39   AFFIRMED.
40
41        Plaintiffs-Appellants Cynthia Ireland, the Board of
42   Trustees of the Freeholders and Commonalty of the Town of
43   Southampton, and the Town Board of the Town of Southampton
44   (the latter two collectively, “the Town”), appeal the
45   judgment dismissing their claims for nuisance, negligence,
46   and Endangered Species Act violations. We assume the

                                  2
 1   parties’ familiarity with the underlying facts, the
 2   procedural history, and the issues presented for review.
 3
 4   [1] Ireland argues that the district court erred in
 5   overruling her objections made pursuant to Daubert v.
 6   Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The
 7   only Daubert objections raised at trial were narrowly aimed
 8   at Dr. David Aubrey’s testimony concerning littoral drift at
 9   Montauk Point; the (far more broad) Daubert arguments that
10   Ireland first raises on appeal are therefore forfeited.    See
11   In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132
12   (2d Cir. 2008); see also Jacquin v. Stenzil, 886 F.2d 506,
13   508 (2d Cir. 1989).
14
15        Daubert contemplates “liberal admissibility standards.”
16   Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267
17   (2d Cir. 2002). “We review the district court’s decision to
18   admit or exclude expert testimony under a highly deferential
19   abuse of discretion standard.” Zuchowicz v. United States,
20   140 F.3d 381, 386 (2d Cir. 1998). We will reverse only if
21   the district court’s decision was “manifestly erroneous.”
22   McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir.
23   1995). Here, Aubrey’s conclusions regarding Montauk Point
24   were supported by data and detailed reasoning; accordingly,
25   the district court did not abuse its discretion in
26   overruling the objections.
27
28   [2] Ireland also contends that the County violated Federal
29   Rule of Civil Procedure 26(a)(2)(B) because it failed to
30   make advanced disclosure that Aubrey would testify at trial
31   that net littoral transport in front of the Ireland home
32   was, at times, to the east. Aubrey’s written report,
33   however, clearly concluded that the littoral transport
34   system is actually a “constantly varying movement of sand,
35   involving both longshore motion to the east and to the
36   west.” His testimony at trial was fully consistent with
37   this position. The district court did not abuse its
38   discretion in permitting Aubrey to testify at trial. See
39   Softel, Inc. v. Dragon Med. & Scientific Commc’ns Inc., 118
40   F.3d 955, 961 (2d Cir. 1997).
41
42   [3] Both plaintiffs argue that the district court erred in
43   crediting Aubrey’s testimony over that of their own expert,
44   Dr. Robert Dean. This argument challenges the district
45   court’s credibility determinations and factual conclusions,
46   both of which we review for clear error. See Palazzo ex
47   rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000); see
                                  3
 1   also Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir.
 2   2008). Under clear error review, we may not “second-guess
 3   either the trial court’s credibility assessments or its
 4   choice between permissible competing inferences,” Ceraso v.
 5   Motiva Enters., LLC, 326 F.3d 303, 316 (2d Cir. 2003), nor
 6   may we “reverse ‘simply because [we are] convinced that [we]
 7   would have decided the case differently,’” Nat’l Mkt. Share,
 8   Inc. v. Sterling Nat’l Bank, 392 F.3d 520, 528 (2d Cir.
 9   2004) (quoting Anderson v. City of Bessemer City, N.C., 470
10   U.S. 564, 573 (1985)).
11
12        Plaintiffs specifically contend that the district court
13   erred in its conclusions regarding Wave Information Studies
14   data, numerical modeling, and so-called Leatherman data.
15   But as to each of these considerations, the district court
16   was presented with conflicting expert testimony, supported
17   by facts and reasoning on both sides. “Where there are two
18   permissible views of the evidence, the factfinder’s choice
19   between them cannot be clearly erroneous.” Anderson, 470
20   U.S. at 574.
21
22   [4] The Town argues that the district court committed clear
23   error in concluding that plaintiffs had failed to sustain
24   their burden of proving causation. Specifically, the Town
25   contends, inter alia, that the district court failed to
26   account for certain important evidence, credited Aubrey’s
27   testimony even though it suffered from multiple purported
28   inconsistencies, and failed to recognize that Aubrey’s
29   conclusions were at odds with other experts who have studied
30   the region. The Town’s arguments, however, rely on
31   misstatements of the record, are unsupported by the evidence
32   presented at trial, and otherwise put far more weight on
33   particular evidence than that evidence can reasonably bear.
34   We find no error here. See Contship Containerlines, Ltd. v.
35   PPG Indus., Inc., 442 F.3d 74, 79 (2d Cir. 2006) (reviewing
36   a district court’s causation finding under the clear error
37   standard).
38
39   [5] The Town also argues that the district court erred by
40   considering the wrong time frames in its analysis. Aubrey
41   and Dean presented conflicting testimony as to the proper
42   historical comparisons to make, and both experts supported
43   their conclusions with data and developed reasoning. The
44   district court did not clearly err in crediting Aubrey’s
45   testimony over Dean’s. See Blondin v. Dubois, 238 F.3d 153,
46   158, 163 (2d Cir. 2001).

                                  4
 1   [6] Because we find no basis to disturb the district
 2   court’s core holding as to causation, we do not consider the
 3   Town’s arguments as to unclean hands, nuisance, or the
 4   Endangered Species Act.
 5
 6        Finding no merit in plaintiffs’ remaining arguments, we
 7   hereby AFFIRM the judgment of the district court.
 8
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12
13
14




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