expert who put forth his own legal analysis for why the putative class should be certified under Fed. R. Civ. P. 23’s factors usurped the court’s role as the legal expert
How later courts described this case
- expert who put forth his own legal analysis for why the putative class should be certified under Fed. R. Civ. P. 23’s factors usurped the court’s role as the legal expert
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH DIVISION
DOUGLAS KRILEY, et al.,; )
) Civil Action No.:
) 2:20-CV-00416-CBB
Plaintiffs, )
)
vs. ) Christopher B. Brown
) United States Magistrate Judge
XTO ENERGY INC., )
)
)
Defendant. )
MEMORANDUM AND ORDER1 ON MOTION TO EXCLUDE JOHN
BURRITT MCARTHUR’S LEGAL OPINIONS REGARDING CLASS
CERTIFICATION ECF NO. 106
Christopher B. Brown, United States Magistrate Judge.
I. Introduction
This putative class action was initiated by Plaintiffs, a group of individuals
who are leaseholders of oil and gas leases, against Defendant XTO Energy Inc
(“XTO”) alleging XTO breached their leases when it deducted unreasonable and
excessive post-production costs from their royalty payments.
1 Motions to strike expert reports are generally considered non-dispositive matters under 28
U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a) and may be decided by a magistrate judge. See Delta
Coatings, LLC v. Donjon Shipbulding and Repair, LLC, No. 1:17-CV-69, 2019 WL 13198219, at *1
(W.D. Pa. June 20, 2019). A ruling striking expert testimony becomes dispositive only where it is
tantamount to dismissing any party’s claims. Delta Coatings, LLC, 2019 WL 13198219, at *1 (“A
ruling on a party's motion to strike filings is non-dispositive, at least where it is not otherwise
determinative of any party's claims. Therefore, [the Magistrate Judge's] decision in this matter is
subject to the ‘clearly erroneous or contrary to law’ standard of review.” (collecting cases). Striking
the expert testimony here does not amount to dismissing Plaintiffs’ case and may be decided by the
undersigned via order and is subject to the “clearly erroneous or contrary to law” standard of review.
28 U.S.C. § 636(b)(1)(A). See also LCvR 72.C.2. (“Any party may object to a Magistrate Judge’s
determination made under this rule within fourteen (14) days after the date of service of the
Magistrate Judge’s order[.]”).
Presently before the Court is a motion by XTO to exclude certain opinions of
Plaintiffs’ expert John Burritt McArthur (“McArthur”) regarding class certification
under Federal Rule of Evidence 702.2 ECF No. 106. The motion is fully briefed and
ripe for disposition. ECF Nos. 107, 112, 114. The Court determined that given the
subject matter of the motion, a hearing was not necessary. ECF No. 113. For the
reasons below, XTO’s motion is granted.
II. Discussion
XTO argues that portions of McArthur’s reports should be stricken because
McArthur improperly offers legal conclusions advocating for class certification
under Fed. R. Civ. P. 23. Plaintiffs do not dispute that McArthur’s reports contain
some legal conclusions (and indicate they do not intend to offer that testimony as an
2 Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the proponent
demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles
and methods to the facts of the case.
Fed. R. Evid. 702. In determining whether an expert’s testimony is admissible under Fed. R. Evid.
702, the court acts as a “gatekeeper” to ensure “that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993). “Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e.,
must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized
knowledge[, i.e., reliability]; and (3) the expert’s testimony must assist the trier of fact[, i.e., fit].” U.S.
v. Schiff, 602 F.3d 152, 172 (3d Cir. 2010) (internal quotation marks, alterations and citations omitted).
“The proponent of the expert testimony must prove these three requirements by a preponderance of
the evidence.” City of Sterling Heights Gen. Employees' Ret. System v. Prudential Fin., Inc., No. CIV.A.
12-5275, 2015 WL 5097883, at *4 (D.N.J. Aug. 31, 2015).
expert opinion) but maintains the reports also contain testimony based on industry
standard in the oil and gas field.3 ECF No. 112 at 3, 4-10.
An expert is prohibited from testifying “as to the governing law of the case”
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006), because it is
the court’s duty to determine how the law applies. Id. See also U.S. v. Leo, 941 F.2d
181, 197 (3d Cir. 1991) (allowing expert to testify about customs and practices in a
field of business but not whether those customs or practice complied with the law or
regulations). Therefore, where an expert offers a legal opinion, the court must
“exclude opinions phrased in terms of inadequately explored legal criteria.” Fed. R.
Evid. 704, advisory committee’s note. McArthur’s reports highlighted by XTO
largely offer legal opinions about whether Plaintiffs’ proposed class should be
certified under the Fed. R. Civ. P. 23 factors and will not be considered in the
forthcoming recommendation on the motion for class certification.4 Marshall v.
3 Plaintiffs mistakenly argue that there is no basis to strike McArthur’s reports in their
entirety. ECF No. 112 at 8. However, XTO is not seeking to strike the entirety of McArthur’s
reports, and only seeks the Court to exclude certain opinions as they have highlighted. ECF No. 107
at 9. Further, Plaintiffs’ passing reference that the “jury” should be permitted to consider
McArthur’s opinions on industry customs and standards is not presently before the Court and no
decision will be made on that merits-based issue. See ECF No. 112 at 8. Accordingly, XTO may make
those challenges, if necessary, at the appropriate procedural juncture.
4 For example, McArthur opines that the class members are ascertainable, typical, and
adequate, that common issues predominate, and that class treatment is a superior means to
adjudicate the dispute. See ECF No. 107-1 at ¶ 4 (“my report does point out what I believe are issues
of law that will be shared by all class members . . .”); ¶ 7 (“The bulk of the questions in this case . . .
are shared by the class.”); ¶ 10 (“Class treatment is not just the most efficient way, but likely the
only feasible way, to compensate the injury of most of the class members.”); ¶ 16 (“The class
members share the questions on which the litigation is likely to focus so that an answer to these
questions for the class representatives will answer them for all class members[.]”); ¶ 19 (“The
reasonableness of XTO’s deductions will be common to the class.”); ¶¶ 24-27 (outlining common
questions between the putative class members and the efficiency of the class model). In addition to
opining on the providence of maintaining this action as a class, McArthur provides opinions on the
feasibility for XTO to conduct discovery to ascertain class members. ECF No. 107-2 at ¶¶ 32; 35- 36;
41-42. These opinions are thinly veiled legal conclusions and will not be considered. Romero v.
Prestamos CDFI, LLC, No. 5:21-CV-04337-JMG, 2025 WL 1250023, at *4 (E.D. Pa.
Apr. 30, 2025). However, to the extent McArthur’s expert reports contain opinions
based on standards, customs and practices of the oil and gas industry, the Court
will consider those opinions where relevant.5 Berckeley Inv. Group, Ltd., 455 F.3d at
217.
Accordingly, the following Order is entered:
ORDER
AND NOW, this 30th day of May, 2025, it is hereby ORDERED that XTO’s
motion to exclude certain legal opinions by Plaintiffs’ expert John Burritt McArthur
under Federal Rule of Evidence 702 ECF No. 106 is GRANTED and insofar as
McArthur presents legal opinions, his reports will be disregarded in any
recommendation on the motion for class certification.
BY THE COURT:
s/Christopher B. Brown
United States Magistrate Judge
Allstate Ins. Co., 52 F. Supp. 3d 715, 723 (E.D. Pa. 2014) (expert who put forth his own legal analysis
for why the putative class should be certified under Fed. R. Civ. P. 23’s factors usurped the court’s
role as the legal expert); In re Wellbutrin SR Antitrust Litig., No. CIV.A. 04-5525, 2010 WL 8425189,
at *2 (E.D. Pa. Mar. 31, 2010) (“[D]istrict courts have discretion to allow expert legal testimony
where it would be helpful for the trier of fact to ‘understand the evidence,’ Federal Rule of Evidence
702, but they cannot allow experts to explain the law.”)
5 For example, some of the opinions XTO objects to include McArthur’s opinions on the use of
standard form contracts in the oil and gas industry, ECF No. 107-1 at ¶ 12, and industry practice for
charging deductions that form the basis of the claims here. Id. at ¶¶ 31, 33-34; ECF No. 107-2 at ¶¶
11, 17. The Court does not consider these opinions as usurping the Court’s role in determining the
law and will consider them when relevant.