Opinion

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

FORMOSA PLASTICS CORPORATION,

U.S.A., et al.,

Plaintiffs,

Case No. 2:20-cv-14338 (BRM) (JSA)

v.

OPINION

ACE AMERICAN INSURANCE

COMPANY,

Defendant.

MARTINOTTI, DISTRICT JUDGE

Before the Court are Plaintiff Formosa Plastics Corp., U.S.A.’s (“Formosa”) and Defendant

ACE American Insurance Company’s (“ACE”) respective Motions in Limine filed on September

2, 2025. Formosa requests: (1) exclusion of any evidence or testimony concerning any plastic

discharges after March 24, 2019 (ECF No. 139), (2) exclusion of Steven Levine’s (“Levine”)

expert testimony (ECF No. 141), (3) partial exclusion of the expert testimony of Guy Vaillancourt

(“Vaillancourt”) (ECF No. 142), (4) exclusion of evidence of attorney posturing and mediation

communications (ECF No. 143), and (5) exclusion of evidence concerning the reasonableness of

Formosa’s settlement in the underlying litigation (the “Waterkeeper Litigation”) (ECF No. 144).

On September 30, 2025, ACE filed five oppositions. (ECF Nos. 153, 154, 155, 156, 157.) Formosa

filed replies in support of its Motions in Limine on October 7, 2025. (ECF Nos. 162, 163, 164, 165,

166.)

Also before the Court are ACE’s Motions in Limine requesting: (1) exclusion of the expert

testimony of Jeffrey M. Posner (“Posner”) (ECF No. 135), (2) exclusion of the expert testimony

of Ricky M. Anderson (“Anderson”) (ECF No. 136), and (3) exclusion of documents Formosa

withheld on the basis of privilege (ECF No. 137). ACE also asks the Court to take judicial notice

of all pleadings, deposition testimony, trial testimony, and conclusions of fact and law from the

Waterkeeper Litigation (ECF No. 138), as well as the Matagorda Bay Mitigation Trust website’s

project summaries page (ECF No. 140). On September 30, 2025, Formosa filed four oppositions.1

(ECF Nos. 148, 149, 151, 152.) ACE filed four replies in support of its Motions in Limine on

October 7, 2025. (ECF Nos. 158, 159, 160, 161.)

Having reviewed the parties’ submissions filed in connection with the motions in limine,

and having held oral argument on December 3, 2025, and incorporating and considering those

arguments herein,2 for the reasons set forth below and for good cause having been shown,

Formosa’s first motion (ECF No. 139) is GRANTED, Formosa’s second motion (ECF No. 141)

is GRANTED IN PART and DENIED IN PART, Formosa’s third motion (ECF No. 142) is

GRANTED, Formosa’s fourth motion (ECF No. 143) is GRANTED, and Formosa’s fifth motion

(ECF No. 144) is DENIED, ACE’s first motion (ECF No. 135) is GRANTED IN PART and

DENIED IN PART, ACE’s second motion (ECF No. 136) is GRANTED, ACE’s fourth motion

(138) is DENIED, and ACE’s fifth motion (ECF No. 140) is DENIED. Additionally, the Court

RESERVES judgment on ACE’s third motion. (ECF No. 137).

1 With respect to ACE’s Motion in Limine seeking to bar Formosa from introducing documents

withheld on the basis of privilege of trial (ECF No. 137), Formosa filed a “response” and not an

opposition, as Formosa does not intend to present said privileged documents (ECF No. 150 at 2

(“It is not clear why ACE filed a motion in limine to preclude Formosa from utilizing documents

it has determined are privileged. This Court agreed with Formosa’s privilege determination. None

of those documents are on Formosa’s Exhibit List attached to the Pre-Trial Order.”)).

2 With the Court’s permission, ACE and Formosa both filed post-oral argument briefs. (ECF Nos.

177, 178.)

I. BACKGROUND

A. Factual Background

This matter arises from an insurance coverage dispute. Formosa seeks to recover amounts

incurred in defense and settlement of the Waterkeeper Litigation for alleged violations of the

Federal Water Pollution Act, 33 U.S.C. § 1251 et. seq., which Formosa claims to be covered under

a Global Premises Pollution Liability Insurance Policy (the “Policy”)—Policy No. GPI

G24890491 001—issued by ACE for the policy period of July 1, 2010, through July 1, 2015, which

was subsequently extended by an endorsement to July 1, 2019 (the “Policy Period”). (ECF No. 85-

2 ¶ 1; ECF No. 86-1 ¶ 1; ECF No. 87-2 ¶ 1; ECF No. 88 ¶ 1.) Formosa alleges ACE has refused

to honor its contractual coverage obligations for amounts Formosa incurred in defense and

settlement of a complaint brought by the San Antonio Bay Estuarine Waterkeeper and S. Diane

Wilson (collectively, “Waterkeepers”) for alleged violations of the Federal Water Pollution Act

(the “Waterkeeper Litigation”). (ECF No. 1 ¶¶ 1–2.)

1. ACE Agrees to Provide Formosa with Insurance Coverage

On or around July 1, 2010, ACE issued the Policy to Formosa for the policy period of July

1, 2010, through July 1, 2015 (the “Policy Period”). (See ECF No. 85-2 ¶ 1; ECF No. 86-1 ¶ 1;

ECF No. 87-2 ¶ 1; ECF No. 88 ¶ 1.) The Policy Period was extended by Endorsement Number

026 to July 1, 2019. (See ECF No. 88 ¶ 1.) Among the Policy’s terms, it covered eight Formosa

facilities in Texas, including the subject facility located in Point Comfort (the “Point Comfort

Plant” or the “plant”). (See ECF No. 86-1 ¶¶ 2, 5, 12; cf. ECF No. 1 ¶ 13.) The Policy further

included myriad terms, provisions, and exclusions (see id. ¶¶ 6–11), the relevant set of which are

defined and described below.

2. Relevant Definitions, Provisions, and Exclusions of the Policy

“Claim” is defined in the Policy as “the written assertion of a legal right received by the

insured from a third-party, including . . . suits or other actions alleging responsibility or liability

on the part of the insured for bodily injury, property damage, remediation costs arising out of

pollution conditions to which this insurance applies.” 3 (ECF No. 85-2 ¶ 8 (internal quotation marks

omitted); ECF No. 88 ¶ 8.) “Pollution condition” is defined as the “discharge, dispersal, release,

escape, migration, or seepage of any solid, liquid, gaseous or thermal irritant, contaminant, or

pollutant, including smoke, soot, vapors, fumes, acids, alkalis, chemicals hazardous substances,

hazardous materials, or waste materials, on, in, into, or upon land and structures thereupon, the

atmosphere, surface water, or groundwater.” (ECF No. 85-2 ¶ 9; ECF No. 88 ¶ 9.) The Policy

defines “remediation costs” as “reasonable expenses incurred to investigate, quantify, monitor,

mitigate, abate, remove, dispose, treat, neutralize, or immobilize pollution conditions to the extent

required by environmental law.” (ECF No. 85-5 at 13; ECF No. 86-3 at 71.) “Environmental law[]”

is any “national, federal, state, provincial, commonwealth, municipal or other local laws, statutes,

directive, ordinances, rules, guidance documents regulations, and all amendments thereto,

including voluntary cleanup or risk-based corrective action guidance, governing the liability or

responsibilities of the insured . . . with respect to a pollution condition.” (ECF No. 85-5 at 11; ECF

No. 86-3 at 69.)

There are two different coverages under the Policy, Coverage A (New Pollution Conditions

Coverage) and Coverage B (Pre-Existing Pollution Conditions Coverage); each applies to different

time periods. (ECF No. 85-2 ¶ 2; ECF No. 88 ¶ 2.) Coverage A applies to “pollution conditions

3 “Property damage” includes damages to natural resources and biodiversity. (ECF No. 85-5 at 13;

ECF No. 86-3 at 71.)

that first commence[d], in their entirety, on or after the inception date [July 1, 2010].” (ECF No.

85-2 ¶¶ 5, 7 (internal quotation marks omitted); ECF No. 88 ¶¶ 5, 7.) Coverage B applies to

“pollution conditions that first commenced, in whole or in part, prior to the inception date [July 1,

2010].” ECF No. 85-2 ¶¶ 6–7 (internal quotation marks omitted); ECF No. 88 ¶¶ 6–7.) The Policy

provides the following coverage for new and pre-existing “pollution conditions”:

Claims, remediation costs, and associated legal defense expenses, in

excess of the self-insured retention, arising out of a pollution

condition on, at, under, or migrating from a covered location,

provided the claim is first made, or the insured first discovers such

pollution condition during the policy period.

(ECF No. 85-2 ¶ 4 (internal quotation marks omitted); ECF No. 88 ¶ 4.)

Elsewhere, the Policy’s Intentional Non-Compliance Exclusion bars coverage for:

claims, remediation costs, foreign subsidiary loss or legal defense

expenses arising out of or related to the intentional disregard of, or

knowing, willful, or deliberate non-compliance with, any law,

statute, regulation, administrative complaint, notice of violation,

notice letter, instruction of any governmental agency or body, or

executive, judicial or administrative order by any responsible

person.

(ECF No. 85-2 ¶ 11 (internal quotation marks omitted); ECF No. 88 ¶ 11.) Another relevant

exclusion, the Policy’s Known Conditions Exclusion, excludes coverage for: “claims, remediation

costs, foreign subsidiary loss or associated legal defense expenses, arising out of or related to

pollution conditions in existence prior to the policy period and reported to a responsible person but

not specifically referenced or identified in documents . . . attached to [the] Policy.” (ECF No. 85-

2 ¶ 12 (internal quotation marks omitted); ECF No. 88 ¶ 12.)

Section III.A of the Policy states ACE “shall have the right and the duty to defend the

insured against a claim to which this insurance applies. [ACE] shall have no duty to defend the

insured against any claim to which this insurance shall not apply.” (ECF No. 85-2 ¶ 14 (internal

quotation marks omitted); ECF No. 88 ¶ 14.) Section III.B provides ACE “shall have the right to

select legal counsel to represent the insured for the investigation, adjustment, and defense of any

claims covered under this Policy” and “[l]egal defense expenses incurred prior to the selection of

legal counsel by [ACE] shall not be covered under [the] Policy.” (ECF No. 85-2 ¶ 15 (internal

quotation marks omitted); ECF No. 88 ¶ 15.) Section VII.B of the Policy provides, in relevant part,

Formosa must: “[i]mmediately send [ACE] copies of any demands, notices, summonses or legal

papers received in connection with any claim”; “[c]ooperate with [ACE] in the investigation,

settlement, or defense of the claim”; and “[p]rovide [ACE] with such information and cooperation

as it may reasonably require.” (ECF No. 85-2 ¶ 16 (internal quotation marks omitted); ECF No.

88 ¶ 16.) Section VII.C of the Policy (the “Consent-to-Settle Clause”) provides Formosa “shall

[not] make or authorize an admission of liability or attempt to settle or otherwise dispose of any

claim . . . without the written consent of [ACE].” (ECF No. 85-2 ¶ 17.)

3. The Point Comfort Plant

Formosa’s Point Comfort Plant encompasses approximately 1,600 acres in Point Comfort,

Texas. (See ECF No. 88-1 ¶ 1; see also ECF No. 86-1 ¶ 4.) The Plant had “thirteen different

production units” for “manufacturing plastic resins.” (ECF No. 88-1 ¶ 1.) Via a permit issued by

the Texas Commission for Environmental Quality (“TCEQ”), Formosa was authorized to

discharge “stormwater and wastewater from the Plant . . . into nearby Cox Creek and Lavaca Bay.”

(ECF No. 88-1 ¶¶ 2–3.) Because the permit required “there shall be no discharge of floating solids

. . . in other than trace amounts” (id. ¶ 3), Formosa “had various systems and procedures in place

to recover plastic . . . pellets from its stormwater and wastewater systems and prevent them from

escaping the [p]lant” (id. ¶ 6). “Since at least 1993,” the Plant was “subject to regular inspections

by state and federal officials” to ensure compliance with the permit. (See id. ¶¶ 2, 8.) In June 2010,

the Environmental Protection Agency (“EPA”) conducted a multi-day inspection of the Point

Comfort Plant. (See id. ¶ 9.) On October 15, 2010, Formosa was sent a written report by the TCEQ

and EPA, which summarized their findings. (Id. ¶ 9.) The report did not allege Formosa was

discharging more than trace amounts of plastic in violation of its permit. (See id. ¶ 10.)

a. The Waterkeeper Litigation

On July 31, 2017, the Waterkeepers filed the underlying complaint against Formosa in the

United States District Court for the Southern District of Texas in the case captioned San Antonio

Bay Estuarine Waterkeeper v. Formosa Plastics Corp., Texas, Civ. A. No. 17-047, 2019 WL

2716544 (S.D. Tex. June 27, 2019), rev’d and remanded sub nom., 852 F. App’x 816 (5th Cir.

2021). (ECF No. 86-2 ¶ 12; ECF No. 87-2 ¶ 12.) The Waterkeeper Plaintiffs sought the following

“relief in the form of a judicial order: (i) for prospective injunctive relief to prevent plastic

discharges, (ii) requiring Formosa to take specific action to remediate past environmental harm,

(iii) awarding civil penalties pursuant to the Clean Water Act [(“CWA”)], and (iv) awarding

litigation costs and attorneys’ fees.” (ECF No. 86-1 ¶ 13; ECF No. 87-2 ¶ 13.)

On August 11, 2017, within seven days of being served with the underlying Waterkeeper

complaint, Formosa reported the Waterkeeper Litigation to ACE, as a claim under the policy, and

informed ACE it had retained Kelly Hart & Hallman LLP (“Kelly Hart”) to represent them. (See

id. ¶ 14.) On October 30, 2017, ACE sent a letter to Formosa wherein it agreed to provide Formosa

a defense in the Waterkeeper Litigation subject to a reservation of rights and consented to

Formosa’s retention of Kelly Hart. (See id.; cf. ECF No. 1 ¶¶ 54−55; Countercl. (ECF No. 24)

¶ 29.)

On September 26, 2018, Formosa and Waterkeepers participated in an unsuccessful, full-

day mediation, which ACE was not made aware of until October 2018. (ECF No. 86-1 ¶ 15; cf.

ECF No. 1 ¶¶ 57–58; ECF No. 24 ¶¶ 36−38.) The Waterkeeper Litigation proceeded to a one-week

liability bench trial that commenced on or about March 25, 2019. (See ECF No. 24 ¶ 40; ECF No.

86-1 ¶ 22.) The parties dispute when ACE was first made aware of the liability trial. However,

ACE asserts it did not know of the liability trial until on or around April 30, 2019 (see ECF No.

85-2 ¶ 51), and Formosa has not submitted any record to the Court suggesting ACE was notified

prior to April 30, 2019 (see ECF No. 86-1 ¶ 25 (indicating Formosa notified ACE on May 29,

2019).)

On June 27, 2019, the Waterkeeper Court issued a memorandum and order finding

Formosa liable for violations of the CWA. (ECF No. 86-1 ¶ 26.) In August 2019, Formosa retained

Holland & Knight, LLP (“H&K”) to serve as settlement counsel while Kelly Hart focused on the

upcoming penalty trial. (Cf. id. ¶¶ 28–29.) On October 9, 2019, Formosa advised ACE it had

retained H&K to pursue possible settlement with the Waterkeeper Plaintiffs. (See ECF No. 85-2

¶ 61; cf. ECF No. 1 ¶ 74; ECF No. 24 ¶¶ 52−53.) On October 15, 2019, Formosa advised ACE of

the settlement. (See ECF No. 86-1 ¶ 32.) ACE, however, claims Formosa settled the Waterkeeper

Litigation without its knowledge or consent. (Cf. id. ¶ 39.)

b. The Consent Decree

On December 6, 2019, the Southern District of Texas approved the settlement and entered

a final consent decree (the “Consent Decree”). (Id.) The Consent Decree included all of the relief

requested by the Waterkeeper Plaintiffs except for an award of civil penalties under the CWA.

(ECF No. 86-1 ¶ 33; ECF No. 87-2 ¶ 33.) Instead, as part of the Consent Decree, Formosa agreed

to contribute $50 million dollars to the Matagorda Bay Mitigation Trust (the “Matagorda Trust”),

which would be used to fund environmental mitigation or other projects (the “Mitigation

Projects”), and reimburse the Waterkeeper Plaintiffs’ attorneys’ fees. (Id.) On December 13, 2019,

ACE sent a letter formally denying coverage for the settlement of the Waterkeeper Litigation, any

costs incurred after October 15, 2019, and any costs incurred by Formosa to retain H&K as

settlement counsel. (See ECF No. 88-1 ¶ 44.)

B. Procedural History

On October 13, 2020, Formosa filed the Complaint raising a sole cause of action for breach

of contract.4 (ECF No. 1.) Between October 13, 2020, and April 30, 2021, ACE filed a series of

answers.5 (ECF No. 24.) On April 30, 2021, ACE filed the Second Amended Answer, which raised

twenty affirmative defenses and five counterclaims: Declaratory Judgment—No Coverage Under

Coverage A of the Policy (First Counterclaim); Breach of Contract—Section III.A of the Policy

(Second Counterclaim); Breach of Contract—Section III.B of the Policy (Third Counterclaim);

Breach of Contract—Section VII.B of the Policy (Fourth Counterclaim); Breach of Contract—

Section VII.C of the Policy (Fifth Counterclaim). (See generally id.)

Fact discovery was originally scheduled to close on March 15, 2022. (ECF No. 33.) On

March 1, 2022, the parties submitted a joint status letter to the Hon. Jessica S. Allen, U.S.M.J.,

outlining the privilege disputes and the parties’ respective positions. (ECF No. 46.) In the joint

letter, Formosa detailed its challenge to ACE’s assertion of attorney-client communication over

communications with the two law firms Formosa had retained. (Id. at 2.) The discovery dispute

involved whether five hundred and thirty (530) documents relating to the Waterkeeper Litigation

containing attorney-client privileged communications and/or work product should be produced.

4 As previously held, the Court has subject matter jurisdiction over this matter and personal

jurisdiction over ACE. Formosa Plastics Corp., U.S.A. v. ACE Am. Ins. Co., Civ. A. No. 20-

14338, 2024 WL 4891740, at *5 n.5 (D.N.J. Nov. 25, 2024). Moreover, venue is proper in this

Court under 28 U.S.C. § 1391. Id.

5 ACE filed a Motion for Leave to File a Third Amended Answer and Counterclaims (ECF No.

39), which the Court denied by Order dated May 17, 2022 (ECF No. 50).

(ECF No. 61 at 19.) Additionally, ACE sought to compel the production of one document withheld

based on the mediation privilege. (Id. at 19−20.)

On June 8, 2023, Judge Allen issued an Opinion and Order denying ACE’s Motion to

Compel discovery based on the common interest doctrine, “at issue” doctrine, and fairness

grounds. (ECF Nos. 61, 62.) On June 22, 2023, ACE filed an appeal of Judge Allen’s June 8, 2023

Opinion and Order. (ECF No. 64.) On July 3, 2023, Formosa filed an opposition. (ECF No. 68.)

On July 10, 2023, ACE filed a reply in further support of its appeal. (ECF No. 70.) On October

12, 2023, the Court issued an Opinion and Order denying ACE’s appeal and affirming Judge

Allen’s Opinion and Order dated June 8, 2023. (ECF Nos. 75, 76.)

Thereafter, on January 22, 2024, the parties filed the complete briefing for the Motions for

Summary Judgment.6 (ECF Nos. 85, 86, 87, 88, 89, 90.) On November 25, 2024, the Court issued

an Opinion and Order denying both ACE’s Motion for Summary Judgment and Formosa’s Motion

for Partial Summary Judgment. (ECF Nos. 99, 100.)

Given the Court’s summary judgment Opinion and Order, the parties agreed to engage in

mediation. (ECF No. 101.) On March 26, 2025, Judge Allen held a final pretrial conference

(Clerk’s Minute Entry Dated March 26, 2025, for proceedings held before Judge Allen), and on

April 4, 2025, the parties filed a joint letter informing Judge Allen of their availability for a

settlement conference (ECF No. 117). Judge Allen ordered the parties to file a revised proposed

6 ACE’s Motion for Summary Judgment is docketed as ECF No. 85 with the supporting brief

docketed as ECF No. 85-1, Formosa’s Opposition is docketed as ECF No. 88 with the opposition

brief docketed as ECF No. 88-8, and ACE’s Reply is docketed as ECF No. 90 with the reply brief

being docketed as same. Formosa’s Motion for Partial Summary Judgment is docketed as ECF

No. 86 with the supporting brief docketed as ECF No. 86-4, ACE’s Opposition is docketed as ECF

No. 87 with the opposition brief being docketed as same, and Formosa’s Reply is docketed as ECF

No. 89 with the reply brief being docketed as same.

final pretrial order on April 24, 2025 (ECF No. 122) and issued an Amended Final Pretrial Order

on May 9, 2025 (ECF No. 127).

On June 2, 2025, Judge Allen held an in-person settlement conference with the parties.

(Clerk’s Minute Entry Dated June 2, 2025, for proceedings held before Judge Allen.) On July 1,

2025, the Court held a case management conference and scheduled a settlement conference for

September 11, 2025.7 (ECF No. 130.) On September 9, 2025, the Court held an in-person

settlement conference with the parties. (ECF No. 145.)

On September 2, 2025, the parties filed their respective Motions in Limine. (ECF Nos. 135,

136, 137, 138, 139, 140, 141, 142, 143, 144.) On September 30, 2025, the parties filed their

respective oppositions to the Motions in Limine. (ECF Nos. 148, 149, 150, 151, 152, 153, 154,

155, 156, 157.) 8 The parties filed their respective replies on October 7, 2025. (ECF Nos. 159, 160,

161, 162, 163, 164, 165, 166.) The Court held oral argument for these motions on December 3,

2025. (ECF No. 171.) The parties filed their respective post-oral argument briefs on January 30,

2026.9 (ECF Nos. 177, 178.)

7 The settlement conference was rescheduled for September 9, 2025. (Clerk’s August 18, 2025,

entry.)

8 As discussed above, Formosa’s filing with respect to ACE’s third motion in limine is a

“response,” not an opposition because Formosa does not intend to present the privileged

documents that ACE seeks to exclude. (ECF No. 150 at 2.) Accordingly, ACE did not file a reply

to Formosa’s “response.”

9 The parties initially agreed to adjourn the original December 19, 2025, deadline to file their

respective supplemental ten-page submissions with respect to the motions in limine to January 15,

2026 (ECF No. 172), which the Court granted (ECF No. 173). On January 12, 2026, the parties

again sought a further extension to file their supplemental submissions, requesting an adjournment

of the deadline to January 30, 2026 (ECF No. 174), which the Court granted (ECF No. 175).

II. LEGAL STANDARD

A. Motion in Limine

District courts have “wide discretion in determining the admissibility of evidence under

the Federal Rules.” U.S. v. Abel, 469 U.S. 45, 54 (1984). “Unlike a summary judgment motion,

which is designed to eliminate a trial in cases where there are no genuine issues of fact, a motion

in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial

interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990). The Federal

Rules of Evidence embody a “strong and undeniable preference for admitting any evidence which

has the potential for assisting the trier of fact.” Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802,

806 (3d Cir. 1997), as amended (Dec. 12, 1997). “The movant bears the burden of demonstrating

that the evidence is inadmissible on any relevant ground, and the court may deny a motion in limine

when it lacks the necessary specificity with respect to the evidence to be excluded.” Supernus

Pharms., Inc. v. Ajanta Pharma Ltd., Civ. A. No. 21-14268, 2023 WL 4866348, at *1 (D.N.J. July

31, 2023) (quoting Leonard v. Stemtech Health Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del.

2013)).

A district court’s ruling on a motion in limine is “subject to change when the case unfolds,

particularly if the actual testimony differs from what was contained in the defendant’s proffer.

Indeed, even if nothing unexpected happens at trial, the district judge is free, in the exercise of

sound judicial discretion, to alter a previous in limine ruling.” Luce v. U.S., 469 U.S. 38, 41–42

(1984). “A trial court considering a motion in limine may reserve judgment until trial in order to

place the motion in the appropriate factual context.” Supernus Pharms., 2023 WL 4866348, at *2

(quoting U.S. v. Tartaglione, 228 F. Supp. 3d 402, 406 (E.D. Pa. 2017)).

B. Exclusion of Evidence

Under the Federal Rules of Evidence (“Rules”), irrelevant evidence is not admissible. Fed.

R. Evid. 402. Evidence is relevant if it “has any tendency to make a fact more or less probable than

it would be without the evidence; and the fact is of consequence in determining the action.” Fed.

R. Evid. 401. However, the court may exclude even relevant evidence when its “probative value

is substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. Pursuant to Rule 403, courts must “engage in balancing

to determine whether the probative value of the evidence is ‘substantially outweighed’ by the

negative factors listed in Rule 403.” Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir.

2002). This balancing test requires a “cost/benefit analysis,” because “relevance alone does not

ensure its admissibility.” Id.

C. Expert Testimony

Federal Rule of Evidence 702 governs the admissibility of expert testimony. See Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993). The Third Circuit has held “Rule 702

embodies three distinct substantive restrictions on the admission of expert testimony:

qualifications, reliability, and fit.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 80 (3d Cir.

2017) (quoting Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000)).

“[T]he district court acts as a gatekeeper, preventing opinion testimony that does not meet

the requirements of qualification, reliability and fit from reaching the jury.” Schneider ex rel. Est.

of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). Motions to exclude evidence are within a

district court’s discretion. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).

However, Rule 702 “has a liberal policy of admissibility.” Kannankeril, 128 F.3d at 806. “If the

expert meets liberal minimum qualifications, then the level of the expert’s expertise goes to

credibility and weight, not admissibility.” Id. at 809.

As to qualification, this prong of the Daubert analysis “refers to the requirement that the

witness possess specialized expertise.” MD Retail Corp. v. Guard Ins. Grp., Civ. A. No. 14-6589,

2017 WL 1164499, at *5 (D.N.J. Mar. 28, 2017). The Third Circuit has “interpreted Rule 702’s

qualification requirement liberally.” Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008).

In the Third Circuit, “a broad range of knowledge, skills, and training qualify an expert as such.”

Paoli, 35 F.3d at 741.

As to reliability, “[u]nder the Federal Rules of Evidence, it is the role of the trial judge to

act as a ‘gatekeeper’ to ensure that any and all expert testimony or evidence is not only relevant,

but also reliable.” Kannankeril, 128 F.3d at 806 (citing Daubert, 509 U.S. at 589). “[T]he reliability

analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the

expert’s opinion, the link between the facts and the conclusion, et alia.” Heller v. Shaw Indus.,

Inc., 167 F.3d 146, 155 (3d Cir. 1999). Along with “any other[ ] [factors] that are relevant,” courts

consider the following factors in determining the reliability of a proposed expert’s testimony:

(1) whether a method consists of a testable hypothesis; (2) whether

the method has been subject to peer review; (3) the known or

potential rate of error; (4) the existence and maintenance of

standards controlling the technique’s operation; (5) whether the

method is generally accepted; (6) the relationship of the technique

to methods which have been established to be reliable; (7) the

qualifications of the expert witness testifying based on the

methodology; and (8) the non-judicial uses to which the method has

been put.

Paoli, 35 F.3d at 742 n.8 (citing Daubert, 509 U.S. at 591; U.S. v. Downing, 753 F.2d 1224 (3d

Cir. 1985)); Schneider ex rel. Est. of Schneider, 320 F.3d at 405; McGarrigle v. Mercury Marine,

838 F. Supp. 2d 282, 290 (D.N.J. 2011). The party offering the expert’s testimony carries the

burden to establish admissibility by a preponderance of the evidence. Padillas v. Stork-Gamco,

Inc., 186 F.3d 412, 418 (3d Cir. 1999). Nonetheless, the “embody a strong preference for admitting

any evidence that may assist the trier of fact.” Pineda, 520 F.3d at 243; see also Kannankeril, 128

F.3d at 806 (explaining Rule 702 “has a liberal policy of admissibility”).

When an expert’s testimony involves “technical knowledge,” as opposed to “traditional

scientific knowledge,” the reliability analysis turns “not on the methodology of the expert

testimony, but on the professional and personal experience of the witness.” Crowley v. Chait, 322

F. Supp. 2d 530, 539 (D.N.J. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999)). There is an abundance of caselaw establishing that an expert’s methodology may be

supported by “personal knowledge or experience.” Kumho, 526 U.S. at 150; see also U.S. v. Ford,

481 F.3d 215, 219 (3d Cir. 2007); Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., 546

F. Supp. 2d 155, 165 (D.N.J. 2008). Proffered nonscientific testimony involving technical

knowledge may not be subjected to the higher standard and review of traditional scientific

knowledge. Failla v. George’s Foods, LLC, Civ. A. No. 20-7109, 2023 WL 7298473, at *4 (D.N.J.

Nov. 6, 2023).

Regarding the “fit” requirement, Rule 702 requires an “expert’s scientific, technical, or

other specialized knowledge . . . help the trier of fact to understand the evidence or to determine a

fact in issue.” Fed. R. Evid. 702(a). To be helpful, expert testimony must be “sufficiently tied to

the facts of the case [such] that it will aid the [factfinder] in resolving a factual dispute.” U.S. v.

Schiff, 602 F.3d 152, 173 (3d Cir. 2010) (quotation marks and citation omitted). On the contrary,

“expert evidence which does not relate to an issue in the case is not helpful.” Ford, 481 F.3d at

219 n.6 (internal quotation marks omitted). The Third Circuit has noted the standard for analyzing

the fit of an expert’s analysis is “not that high,” but “higher than bare relevance.” Paoli, 35 F.3d

at 745.

D. Judicial Notice

Rule 201 “authorizes a court to take judicial notice of an adjudicative fact if that fact is ‘not

subject to reasonable dispute.’” In re Indian Palms Assocs., Ltd., 61 F.3d 197, 205 (3d Cir. 1995)

(quoting Fed. R. Evid. 201(b)). Facts are not subject to reasonable dispute when they are “either

(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate

and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

In re NAHC, Inc. Secs. Litig., 306 F.3d 1314, 1331 (3d Cir. 2002) (quoting Fed. R. Evid. 201(b)).

“Judicial notice may be taken at any stage of the proceeding . . . .” In re Indian Palms Assocs.,

Ltd., 61 F.3d at 205 (quoting Fed. R. Evid. 201(f)).

For instance, the court may “take judicial notice of relevant legal proceedings.” S. Cross

Overseas Agencies, Inc. v. Wah Kwong Shipping Group, Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

“Such records may only be judicially noticed to show what was in the public realm at the time, not

whether the contents of those documents are true.” Sturgeon v. Pharmerica Corp., 438 F. Supp.

3d 246, 257 (E.D. Pa. 2020) (internal quotation marks omitted); see Benak ex rel. All. Premier

Growth Fund v. All. Cap. Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006). In contrast, it is

improper for the district court to take judicial notice of facts found on a company’s website due to

authentication concerns. Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007), as amended

(Nov. 20, 2007). Additionally, “a company’s website is a marketing tool [that may well be] full of

imprecise puffery.” Id.

III. DECISION

Formosa filed five motions in limine seeking to exclude various expert testimony and

evidence offered by ACE. ACE filed five motions in limine seeking to exclude certain expert

testimony and evidence offered by Formosa and requesting judicial notice of documents from and

related to the Waterkeeper Litigation. The Court begins with Formosa’s motions in limine before

turning to ACE’s motions in limine.

A. Formosa’s Motions in Limine

Formosa moves to exclude the following: evidence of plastic discharges after March 24,

2019 (ECF No. 139-1), Levine’s expert testimony (ECF No. 141-1), Vaillancourt’s expert

testimony10 (ECF No. 142-1), evidence of attorney posturing and mediation communications (ECF

No. 143-1), and evidence concerning the reasonableness of Formosa’s settlement of the

Waterkeeper Litigation (ECF No. 144-1).

1. Evidence of Plastic Discharges after March 24, 2019 (First Motion)

Formosa asserts that testimony evidence of alleged plastic discharges from the date of the

court’s decision in the Waterkeeper Litigation to the present is not relevant to the issues in this

case and will serve only to confuse and inflame the jury. (ECF No. 139-1 at 3.) Specifically,

Formosa notes the issues in this case are whether there is coverage for pollution conditions asserted

in the Waterkeeper Litigation, whether any exclusions ACE asserts operate to exclude coverage,

whether Formosa violated the cooperation and consent to settle provisions of the subject policy,

and whether ACE was prejudiced by any proven breaches of the cooperation and consent to settle

provisions of the policy. (Id. at 3–4.) Formosa posits any evidence of post-March 24, 2019,

10 Formosa moves only to partially exclude Vaillancourt’s expert testimony. (See generally ECF

No. 142-1.)

discharges is irrelevant to this litigation because the Waterkeeper Litigation “was based solely

upon pollution conditions at its Point Comfort [Plant] through March 24, 2019” and “Formosa

does not seek coverage for liability arising from discharges after that date.” (Id. at 4.) Moreover,

Formosa contends evidence of post-March 24, 2019 discharge will be unfairly prejudicial. (Id.)

ACE counters that evidence of post-March 24, 2019 plastic discharges is relevant because

it relates to the amount of damages Formosa is seeking against ACE at trial and because Formosa

has identified trial witnesses, namely Matt Brogger and Rick Crabtree, who will presumably testify

about Formosa’s compliance with its permit and its remediation efforts/activities. (ECF No. 157

at 2–3.) ACE also notes this evidence is needed because Formosa “would have to establish which

plastics and associated costs were due to” pre-March 24, 2019 discharges. (Id. at 3.) Moreover,

ACE asserts such evidence is relevant because the Consent Decree in the Waterkeeper Litigation

contemplates future discharges. (Id. at 3.) Additionally, ACE argues Formosa’s claims of prejudice

are merely speculative. (Id.)

In reply, Formosa reiterates it “only seeks coverage for liability arising from the date of the

Waterkeeper decision.” (ECF No. 166 at 2.) Formosa notes this includes coverage for the

engagement of a remediation consultant with respect to past discharges and the retention of an

independent monitor. (Id.) Formosa underscores that it “does not seek and has never sought

recovery” of “payments to the Mitigation Trust for discharges after the Consent Decree.” (Id.)

Formosa also argues, “[t]o the extent ACE seeks to distinguish pellets discharged before and after

2019, that is ACE’s burden.” (Id. at 3.) Moreover, Formosa contends its concern about prejudice

is not speculative because evidence of continuing plastic discharges would “confuse the issues and

mislead the jury, particularly since they will be called upon to decide whether Formosa

intentionally violated its [TCEQ] permit.” (Id. at 4.)

“[R]elevance is not a difficult condition to satisfy under the [Rules].” United States v. Paz,

124 F. App’x 743, 746 (3d Cir. 2005). Under Rule 401, “[e]vidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” Fed. R. Evid. 401. However, the Court may

exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403; see also

Coleman, 306 F.3d at 1343 (“Rule 403 is an ‘umbrella rule’ spanning the whole of the Federal

Rules of Evidence.”). “Rule 403 recognizes that a cost/benefit analysis must be employed to

determine whether or not to admit evidence; relevance alone does not ensure its admissibility.”

Coleman, 306 F.3d at 1343. “However, there is a strong presumption that relevant evidence should

be admitted, and thus for exclusion under Rule 403 to be justified, the probative value of evidence

must be ‘substantially outweighed’ by the problems in admitting it.” Id. at 1344. As such,

“evidence that is highly probative is exceptionally difficult to exclude.” Id.

ACE’s suggestion that the post-March 14, 2019 discharges “are highly relevant to trial of

this [a]ction and the damages sought by Formosa, regardless of when the discharges occurred” is

misguided. (ECF No. 157 at 3.) Plastic discharges post-March 14, 2019, have no relevance to the

liability coverage Formosa seeks here.11 As Formosa correctly notes, the only plastic disposal

activities for which it seeks coverage are disposal activities prior to March 14, 2019. (ECF No.

166 at 3.) Given that evidence of plastic discharges post-March 14, 2019, are of no “consequence

11 At oral argument, while ACE noted that Formosa is seeking “$2 million for remediation, [a]

consultant, and [an] independent monitor,” ACE responded that what Formosa had “described

would all be covered in [the] $50 million settlement” for which it is now “seeking coverage.” (ECF

No. 176 at 34.)

in determining the action,” the Court agrees this evidence should be excluded on relevancy

grounds. Fed. R. Evid. 401; see Apple Inc. v. Samsung Elecs. Co., Civ. A. No. 11- 1846, 2018 WL

2010621, at *1 (N.D. Cal. Apr. 30, 2018) (excluding references to evidence post-dating the

relevant damages period pursuant to Rule 403).

Moreover, even assuming this evidence is as relevant as ACE suggests, the Court excludes

this evidence because “such relevance would be substantially outweighed by the risk of confusing

the issues, misleading the jury, wasting time, and unfair prejudice to” Formosa. Apple Inc., 2018

WL 2010621, at *1. At issue here is whether the intentional non-compliance exclusion applies to

bar coverage. (ECF No. 24 at 12.) In other words, at trial, the jury must consider whether Formosa

intentionally violated its permit. It follows then that the evidence of continuing plastic discharges

may well inflame the jury. The Court shares Formosa’s concern the introduction of such evidence

risks casting Formosa as a “perpetual bad actor.” (ECF No. 178 at 8.)

Because this evidence is not relevant and the risk of prejudice raised by this evidence is

beyond the speculative level, Formosa’s Motion insofar as it seeks to exclude evidence of plastic

discharges post-dating March 24, 2019, is GRANTED. Coleman, 306 F.3d at 1344 (explaining

district courts must assess whether the problems in admitting the challenged evidence substantially

outweigh the probative value of the evidence).

2. Steven Levine’s Expert Testimony (Second Motion)

Formosa also contends the testimony of Levine should be barred at trial. (ECF No. 141-1

at 6–12.) First, Formosa argues Levine has no background or experience upon which to offer the

first five of his opinions.12 (Id. at 6–7.) Formosa asserts Levine has no background or experience

12 The opinions are as follows: (1) “ACE was excluded from any contemporaneous and substantive

role in the Case;” (2) “Formosa gave ACE no prior or timely knowledge of any litigation event or

issues, and ACE was denied an opportunity to participate at all in any litigation events as a result;”

in the insurance industry and his opinions are based solely on his experience as a defense attorney.

(Id. at 7.) Formosa underscores the fact Levine has never litigated an insurance coverage case. (Id.)

Formosa also argues Levine lacks “expertise in interpreting insurance policies and does not hold

himself out as an expert in insurance coverage. (Id.) Furthermore, Formosa notes Levine “has no

claims handling experience and no basis to state with expertise how ACE was prejudiced by any

purported delay in notice or cooperation.” (Id.) Formosa also highlights that Levine could not call

himself an expert on what constitutes prejudice in the context of the Policy’s cooperation and

consent to settle clauses (Id. at 10), despite his opinion that “ACE was prejudiced as a result of

Formosa’s conduct” (Id. at 6). Given this supposed lack of experience and expertise, Formosa

essentially argues Levine is not qualified to opine on the insurance policy’s cooperation provision.

Second, Formosa argues Levine’s first five opinions consist solely of his subjective belief

and contradict undisputed evidence in this case. (Id. at 8–10.) To support this argument, Formosa

proffers a list of so-called “undisputed evidence,” which supposedly contradict Levine’s assertion

that ACE excluded.13 (Id. at 9.) Additionally, Formosa cites to various parts of Levine’s deposition

(3) “Formosa’s conduct was contrary to the Policy’s requirements;” (4) “[i]n [Levine’s]

experience, Formosa’s conduct was contrary to standard practice, in which insureds routinely and

customarily give their insurers advance notice and opportunity to participate in significant

litigation events and keep their insurers timely informed of major litigation developments;” (5)

“[t]he conclusions above support a finding that ACE was prejudiced as a result of Formosa’s

conduct;” and (6) “[t]he [mitigation projects] contained in the [Consent Decree] were the result of

a settlement agreement between Formosa and Waterkeeper. The MPs could not have been awarded

by the Court under the Clean Water Act and were not ‘required by environmental law.’” (ECF No.

141-4 at 22.)

13 As noted in the Amended Final Pretrial Order, ACE contests Formosa’s claim that ACE never

instructed Formosa not to make any settlement offers without first discussing with ACE. (ECF No.

127 at 8.) ACE also contests Formosa’s claim that it “never asserted a lack of cooperation before

issuing its denial letter.” (Id.) However, it is uncontested Formosa’s defense counsel gave ACE

adjuster David Klink his phone number and invited Klink to contact him for anything. (Dep. Test.

of David Klink (ECF No. 143-3) at 25.)

transcript to argue Levine’s first five opinions “are not based upon any facts in the record.” (Id. at

8–9.) And with regard to Levine’s fifth opinion, Formosa points out Levine could not testify the

outcome of the Waterkeeper Litigation would have been any different, even if Formosa’s counsel

did all of the things Levine claims he should have done. (Id. at 10.)

Last, Formosa argues the Court should exclude Levine’s sixth opinion because it is a pure

legal conclusion. (Id. at 11.) Relatedly, Formosa argues Levine’s report opining “Formosa pursued

a course of action to avoid all liabilities not covered by the policy in the form of the consent decree”

was “based upon nothing more than Levine’s assumption” and should be excluded.14 (Id. at 11–

12 (citing Expert Report of Levine (ECF No. 141-4) at 10).)

In opposition, ACE argues Levine is qualified to offer opinions concerning Formosa’s

handling of the Waterkeeper Litigation. (ECF No. 154-4 at 2–9.) ACE contends Formosa is wrong

to focus on Levine’s experience with insurance coverage cases because what matters is Levine’s

experience with Clean Water Act suits, namely his “extensive experience defending against and

communicating . . . with insurers.” (Id. at 154 at 9.) Accordingly, ACE asserts Levine is qualified

to render expert opinions in this case. (Id. at 2–6.)15

14 ACE does not contest this argument. (ECF No. 154 at 4–12.)

15 As an aside, ACE points out that Formosa’s motion misrepresents Levine’s deposition

testimony. (ECF No. 154 at 5–6.) ACE explains that while Formosa has framed Levine as being

unaware of “any industry standards that apply to the interaction between an insurance company

and its policyholder,” without “expertise in interpreting insurance policies,” and someone who

“does not hold himself out as an expert in insurance coverage,” Levine merely stated his

engagement in this matter was not as an expert in insurance coverage. (Id. at 5 (quoting ECF No.

141-1 at 11).) ACE also quotes excerpts from Levine’s deposition testimony, which describe

Formosa’s purported shortcomings in interacting with ACE and how Formosa should have

supposedly worked with ACE and its representatives during the Clean Water Act litigation. (Id. at

6.)

Second, ACE argues Levine’s experience as a litigator and the established facts of the

coverage action support Levine’s opinions concerning Formosa’s handling of the Waterkeeper

Litigation. (ECF No. 154 at 11.) At the outset, ACE contends that Formosa mischaracterizes Third

Circuit law governing the reliability of expert testimony.16 (Id. at 11–12.) ACE then argues

Levine’s testimony is reliable for three main reasons: (1) Levine utilized his experience as an

environmental attorney to review the Policy and the pertinent documents in the Waterkeeper

Litigation and this coverage action, (2) Levine’s first five opinions do not conflict with the Policy’s

reporting and cooperation provisions or the factual record of the Coverage Action, and (3) Levine’s

opinion about prejudice helps explain how Formosa’s handling of the Waterkeeper Litigation and

settlement impaired ACE’s position.17 (Id. at 12–16.)

Third, ACE argues Levine’s sixth opinion was offered to provide essential context to

ACE’s argument concerning prejudice—“that Formosa intentionally engineered the Consent

Decree to transform Formosa’s non-covered liability for [Clean Water Act] fines and penalties into

16 Specifically, ACE notes the court in Krys v. Aaron disqualified the subject expert “because he

impermissibly testified as to defendants’ state of mind,” which ACE argues Levine did not do.

(ECF No. 154 at 11 (citing Krys v. Aaron, 112 F. Supp. 3d 181, 203 (D.N.J. 2015).) ACE also

argues Formosa’s reliance on this Court’s holding in In re Insulin Pricing Litigation, Civ. A. No.

17-699, 2024 WL 416500 (D.N.J. 2024), is misplaced because this Court disqualification of the

subject expert’s testimony was limited. (Id. (citing In re Insulin Pricing Litig., 2024 WL 416500,

at *12.) There, this Court identified no case where the expert’s methodology was used to establish

whether price-setting conduct is unfair or unconscionable and disqualified the expert only to the

extent the proponent intended to rely on the expert testimony to answer this question of law. Id. at

*11–12 (noting it is for the jury to decide the legal question of whether the defendants’ conduct

was unfair or unconscionable under the applicable state law). Indeed, ACE highlights the relevance

of In re Insulin Pricing Litigation, is this Court’s finding the expert’s methodology was otherwise

sufficiently reliable to survive Daubert. (ECF No. 154 at 11–12 (citing In re Insulin Pricing Litig.,

2024 WL 416500, at *12).)

17 Stated differently, ACE contends “prejudice” is not necessarily whether ACE’s inclusion in the

Waterkeeper Litigation and settlement would have altered the outcome. (ECF No. 154 at 15.)

covered ‘remediation costs.’” (ECF 154 at 16.) ACE further notes any alleged shortcomings should

go to the weight of the evidence and not to admissibility. (Id.)

In reply, Formosa makes the following arguments: Levine is unqualified to testify about

Formosa’s handling of the Waterkeeper Litigation (ECF No. 162 at 2); Levine is not needed to

help a jury understand how an insurer and insured should cooperate (id. at 3–4); Levine’s testimony

shows he lacks knowledge and experience concerning the relationship between an insured and a

policyholder (id. at 4); ACE’s theory of prejudice is wrong as a matter of law (id. at 5); and

Levine’s sixth opinion about prejudice was strictly tied to ACE’s supposed exclusion from the

Waterkeeper Litigation (id. at 5–6).

Levine’s testimony has the potential to assist the jury, Kannankeril, 128 F.3d at 806, and

it satisfies Rule 702’s three requirements. Karlo, 849 F.3d at 80. However, pursuant to Rule 704,

Levine’s testimony respecting his sixth opinion is an improper legal opinion and must be excluded.

United States v. Villaneuva, 604 F. Sup. 3d 252, 257 (D.N.J. 2022) (citing Patrick v. Moorman,

536 F. App’x 255, 258 (3d Cir. 2013)).

a. Levine’s First Five Opinions

Turning first to Levine’s first five opinions, given Rule 702’s qualifications requirement is

interpreted liberally, the Court finds Levine has the knowledge, skills, and training necessary to

qualify him to provide expert testimony concerning Formosa’s handling of the Waterkeeper

Litigation. Pineda, 520 F.3d at 244.

While Levine may not be an expert in the insurance industry, he has extensive experience

litigating matters similar to the Waterkeeper Litigation. (ECF No. 141-3 at 12–13, 45–46; see also

ECF No. 176 at 47 (“Levine is an experienced environmental attorney [who] has practiced and

litigated these cases for [forty] some-odd years. . . . [I]f anybody knows what the insured should

be doing, he is the guy.”).) As Levine noted in his deposition testimony, he has “handled quite a

number of matters . . . for quite a number [of] different years” and gained experience with respect

to “communication and the kind of things that are issue in this case.” (Id. at 13.) Simply put, Levine

draws upon his years of experience defending against Clean Water Act citizen suits to opine on

how defense counsel should act in other Clean Water Act suits. (Id. at 46.) Formosa contends its

“‘handling’ of the Waterkeeper Litigation is not at issue in this litigation.” (ECF No. 162 at 2.)

What is at issue, according to Formosa, is whether Formosa breached the cooperation clause in the

Policy. (Id.)

This is a distinction without a difference. While Formosa is correct that the latter is at issue

in this litigation, Formosa’s handling of the Waterkeeper Litigation is relevant to deciding whether

Formosa breached the cooperation clause in the Policy because, as Formosa agrees, “the custom

and practice in the industry . . . will be helpful to the jurors.” (Id. at 3.) While Formosa contends

Levine “knows nothing about” the custom and practice in the industry (id.), Levine’s deposition

testimony says otherwise. (ECF No. 141-3 at 47–48.) In response to questions from Formosa’s

attorney, Levine explained his opinions spoke to the “custom and practice that [he had] been

involved in.” (ECF No. 141-3 at 47–48 (explaining his opinions stem from practice over the years

“serving as defense counsel being paid by an insurance company”).) Because Rule 702’s

qualification factor is to be applied liberally, Levine is qualified to testify at trial concerning

Formosa’s handling of the Waterkeeper Litigation. Pineda, 520 F.3d at 244 (explaining it is an

“abuse of discretion to exclude testimony simply because . . . the proposed expert does not have

the specialization that the court considers most appropriate”).

Further, Levine’s expert report and proffered testimony are reliable and not, as Formosa

contends, merely subjective beliefs contradicted by undisputed evidence in this case. In the Rule

702 context, the reliability factor essentially requires the Court to examine the expert’s conclusions

“to determine whether [their conclusions] could reliably flow from the facts known to the expert

and [the] methodology used.” In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine)

Prod. Liab. Litig., 706 F.3d 217, 225 n.7 (3d Cir. 2013) (internal quotation marks omitted) (quoting

Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)). Formosa’s arguments seek to paint

Levine’s expert report and testimony as untethered from the evidence because the evidence

supposedly refutes Levine’s opinion that ACE was excluded.18 But the evidence is not so clear.

As ACE correctly points out, “ACE [has] expressly reserved rights under all provisions of it rights

and duties under the Policy, including the Policy’s Consent-to-Settle Clause.” (ECF No. 154 at

14.) In other words, Levine’s exclusion opinion stemmed from his understanding that Formosa, as

the insured, was responsible for affirmatively reaching out to ACE. It was no matter, according to

Levine, that Klink, an ACE adjuster, was given the phone number of Formosa’s defense counsel.

(ECF No. 141-3 at 25.) In essence, Levine’s theory of exclusion is based on Formosa’s failure to

affirmatively contact ACE, not that ACE was somehow prevented from contacting Formosa.

While the parties may differ as to whether there ultimately was exclusion, the Court finds Levine’s

opinion as to the alleged exclusion is reliable.

Moreover, Formosa argues because Levine could neither “testify that the outcome of the

Waterkeeper Litigation would have been different [had] Formosa’s counsel d[one] all . . . the things

. . . Levine claims he should have done,” nor “call himself an expert on what constitutes prejudice

18 According to Formosa, these three facts show Levine’s expert testimony is unreliable because

they are patently refuted by the evidence: (1) “ACE never instructed Formosa to not make any

settlement offers without first discussing with ACE,” (2) “ACE never asserted that Formosa was

not cooperating with ACE, or otherwise violating the cooperation clause in the policy, until ACE

issued its denial letter on December 13, 2019,” and (3) “Formosa’s defense counsel gave ACE

adjuster David Klink his phone number and invited Mr. Klink to contact him for anything.” (ECF

No. 141-1 at 13.)

in the context of the Policy’s cooperation and consent to settle clauses,” his argument is somehow

unreliable. (ECF No. 141-1 at 14.)

The Texas Supreme Court has held an “insurer [may] establish[] prejudice from a

settlement to which it did not agree by showing that the insured’s unilateral settlement was a

material breach of the policy—that is, that it significantly impaired the insurer’s position.” Lennar

Corp. v. Markel Am. Ins. Co., 413 S.W.3d 750, 756 (Tex. 2013) (emphasis added). ACE may

attempt to establish prejudice by showing Formosa’s behavior in the Waterkeeper Litigation

significantly impaired ACE’s position, rather than by not only by showing there would have been

a difference in the outcome of the Waterkeeper Litigation. See id. Under Texas law, an insurer is

not prejudiced when it is in the same position it would have been in had the insured complied with

the insurance policy’s provisions. See Sentry Select Ins. Co. v. Lopez, Civ. A. No. 14-284, 2016

WL 4257751, at *7 (W.D. Tex. Mar. 18, 2016). But just because Levine cannot testify that the

outcome of the Waterkeeper Litigation would have been different had Formosa done all the things

“Levine claims he should have done” (ECF No. 141-1 at 14), it does not mean Levine’s testimony

cannot establish Formosa’s conduct “significantly impaired [ACE’s] position,” i.e., prejudice,

Lennar Corp., 413 S.W.3d at 756.

Additionally, Formosa mischaracterizes Levine’s deposition testimony by reducing it to

the following: “Levine could not call himself an expert on what constitutes prejudice in the context

of the Policy’s cooperation and consent to settle clauses.” (ECF No. 141-1 at 14.) But a closer look

at the deposition transcript reveals Levine was “offering [him]self as an expert as [sic] prejudice

in the form of who is put at an advantage and who is put at a disadvantage in a litigated situation

when the party with access to the information doesn’t provide it to the party that needs the

information.” (ECF No. 141-3 at 31.) From this, it is apparent Levine’s opinion about prejudice

stemmed from his experience litigating matters like the Waterkeeper Litigation. (Id. at 31–32 (“It’s

a . . . working person’s definition of prejudice. . . . [R]esolving cases under litigation . . . [i]s all

about giving evidence. And a party that has information from the other side is prejudicing that

other party.”).) Given Levine’s years of experience defending against Clean Water Act citizen

suits (id. at 46), Levine’s expert testimony is reliable insofar as it speaks to how defense counsel

should act in other Clean Water Act suits, which includes whether Formosa’s conduct prejudiced

ACE, see United States v. Walker, 657 F.3d 160, 175–76 (3d Cir. 2011) (holding expert’s opinion

based upon his personal experiences over a period of decades provided sufficient knowledge); see

also Betterbox Commc’ns Ltd. v. BB Techs., Inc., 300 F.3d 325, 328–29 (3d Cir. 2002) (noting

specialized knowledge can be based upon “practical experience”).

b. Levine’s Sixth Opinion

Turning to Levine’s sixth opinion, Formosa rightly argues the Court should exclude the

opinion because it is merely a legal conclusion. Patrick v. Moorman, 536 F. App’x 255, 258 (3d

Cir. 2013) (stating Rule 704 “prohibits experts from opining about . . . the law”). Without citing

to any law, Formosa argues the Court should nonetheless admit Levine’s sixth opinion because it

is “offered to provide context that was essential to ACE’s argument concerning prejudice[, i.e.,]

that Formosa intentionally engineered the Consent Decree to transform Formosa’s non-covered

liability . . . into covered ‘remediation costs.’” (ECF No. 154 at 16.) But Rule 704 clearly bars

Levine from testifying the projects Formosa agreed to undertake in the Consent Decree could not

have been awarded by the Waterkeeper Court under the Clean Water Act and these projects were

not required by environmental law. (ECF No. 141-4 at 21.) Testimony by Levine “on the above-

enumerated subjects—which involves the application of legal principles and doctrines to the facts

of this case—clearly exceeds the proper role of an expert witness.” Jacoby Donner, P.C. v.

Aristone Realty Cap., LLC, Civ. A. No. 17-2206, 2020 WL 5095499, at *19 (E.D. Pa. Aug. 28,

2020). Rule 704 bars Levine’s sixth opinion.

Accordingly, Formosa’s Motions in Limine seeking to exclude Levine’s expert testimony

as to his first five opinions is DENIED and the Motion insofar as it seeks to exclude testimony as

to his sixth opinion is GRANTED.19

3. Guy Vaillancourt’s Expert Testimony (Third Motion)

Formosa also seeks to partially exclude Vaillancourt’s expert testimony at trial because it

fails to meet Rule 702’s reliability and fit requirements. (ECF No. 142-1.) Specifically, Formosa

seeks to exclude Vaillancourt’s first opinion that “Formosa, [the EPA], and other agencies were

well aware of plastic contamination prior to the Policy’s inception on July 1, 2010, and Formosa

should have reported this contamination to ACE.” (Id. at 4.) As to “reliability,”20 Formosa

contends Vaillancourt lacks the expertise to opine on “what should or should not have been

disclosed to” ACE because he has “no insurance industry expertise.” (Id. at 7−9.) As to “fit,”

Formosa argues Vaillancourt’s first opinion “does not rely on any special expertise, scientific,

analysis or methodology” and a “jury can determine for themselves” whether Formosa was aware

of the persistent issue with plastic pollution. (Id. at 8.) As such, Formosa contends Vaillancourt’s

19 Formosa also seeks to exclude Levine’s opinion that “Formosa pursued a course of action that,

to the maximum extent possible, avoided all liabilities not covered by the Policy.” (ECF No. 141-

4 at 10.) It appears ACE has not specifically contested this request. (ECF No. 154 at 16–17.)

Formosa points out that Levine confirmed he is not aware of any evidence that Formosa pursued

a course of action to avoid all liabilities not covered by the policy in the form of the Consent

Decree. (ECF No. 141-1 at 15–16.) As such, this opinion is excluded insofar as it is unmoored

from any factual evidence in the record and, therefore, unreliable. Kmart Corp., 233 F.3d at 745

(explaining reliability does not arise from an expert’s opinion based on subjective belief or

unsupported speculation).

20 In a heading, Formosa argues Vaillancourt is “[n]ot [q]ualified to [o]ffer [i]nsurance [o]pinions”

(ECF No. 142-1 at 8), but rather than expounding on this Rule 702 prong, Formosa’s brief focuses

only on the reliability and fit of Vaillancourt’s testimony as to his first opinion (id. at 8–10).

mere recitation of the factual record would prejudice Formosa if given the imprimatur of “expert

testimony.” (Id. at 9.) Additionally, Formosa argues Vaillancourt’s first opinion impermissibly

addresses Formosa’s alleged state of mind. (Id.)

ACE counters Vaillancourt’s testimony is reliable because he has “extensive experience in

the environmental industry” and comprehensively reviewed “[a]vailable documents including

technical reports, maps, correspondence[s], and other materials produced in this [action], [the

Texas Commission on Environmental Quality] proceedings, and the underlying” Waterkeeper

Litigation to form his opinions. (ECF No. 153 at 8−9, 11.) Additionally, in reliance upon Krys v.

Aaron, 112 F. Supp. 3d 181, 203 n.25 (D.N.J. 2015), ACE further counters Vaillancourt’s first

opinion “rests squarely within the province of an expert” because it permissibly addresses what

Formosa should have disclosed to ACE and does not concern Formosa’s state of mind. (Id. at

10−11.) Moreover, ACE contends Vaillancourt’s first opinion does not simply regurgitate factual

testimony because Vaillancourt drew upon independent research and relied on sources like

publications from Center for Public Integrity and the EPA. (Id. at 10.) In other words, without

expressly addressing “fit,” ACE argues Vaillancourt’s testimony “will assist the jury because it

will ‘provid[e] it with relevant information, necessary to reasoned decision of the case.” (Id. at 8

(quoting Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J.

2022) (addressing the “fit” prong)).)

Formosa replies largely by arguing Vaillancourt’s first opinion is in fact excludable

pursuant to Rules 702 and 401 because Vaillancourt opines on “what was known in the industry

in general” to support Formosa’s assertion that coverage is barred by the Known Conditions

Exclusion. (ECF No. 163 at 2.) Formosa points out Vaillancourt testified Formosa “clearly knew

[it] had pellet contamination outside of their facility in the early ’90s, [but] whether [it] considered

that a violation of their permit or not, [he didn’t] know.” (Id. at 3.) Additionally, Formosa reiterates

its argument that Vaillancourt’s position is wholly unsupported, highlighting that his site visit in

January 2024 was irrelevant because the coverage issue in this case concerns only “plastic

discharges leading up to the [Waterkeeper] Court’s decision on March 24, 2019.” (Id.) Moreover,

Formosa disputes ACE’s reliance upon Krys by arguing that the expert in Krys “could testify about

what should have occurred [because his opinion was] based upon ‘pertinent regulations and

generally accepted industry customs and practices.’” (Id. at 4 (quoting Krys, 112 F. Supp. 3d at

201).)

Here, while “relevance is not a difficult condition to satisfy under the Federal Rules of

Evidence,” Vaillancourt’s first opinion is excluded. United States v. Paz, 124 F. App’x 743, 746

(3d Cir. 2005). Putting aside arguments concerning “reliability,” Formosa correctly argues

Vaillancourt’s opinion is irrelevant. As ACE itself notes, it retained “Vaillancourt in [this] action

. . . to opine on Formosa[] and other entities’ knowledge of discharge of plastics prior to the

Policy’s . . . inception date and whether Formosa should have disclosed the same to ACE in its

application for the Policy.” (ECF No. 153 at 5.) In other words, ACE intends to use Vaillancourt’s

testimony to support its assertion that coverage is barred by the Known Conditions Exclusion. (Id.)

But the sources relied on by Vaillancourt do not support the opinion that Formosa was “well aware

of the persistent issue with plastic pollution.” (ECF No. 142-3 at 5.) This is particularly true where

Formosa held a permit allowing it to discharge trace amounts of plastic (ECF No. 88-1 ¶ 3; ECF

No. 90-1 ¶ 3), and Vaillancourt could not opine on “whether [Formosa] considered [any supposed

pellet contamination outside of their facility in the early ’90s] a violation of [its] permit” (ECF

No. 163 at 3 (emphasis in the original)). As Formosa argued during oral argument, “[w]e already

know that Formosa was discharging plastics back then. The issue is whether Formosa knew it was

violating its permit when it was discharging plastics.” (ECF No. 176 at 37.) In that sense, this

testimony is not only irrelevant but fails to pass the “fit” prong of Rule 702. Paoli, 35 F.3d at 742

(holding that an expert opinion may not be based on unsupported speculation).

Although Vaillancourt’s testimony may shed some light on what was generally known in

the industry, this information is altogether not relevant (and likely prejudicial). What would be

relevant, especially given ACE’s intended use of Vaillancourt’s testimony, is whether any

“responsible person” received any report of a “pollution condition” or would have thought a

“pollution condition” existed. (ECF No. 85-2 ¶ 12; ECF No. 88 ¶ 12.) However, what was

generally known in the industry is not relevant. Fed. R. Evid. 401, 402. As such, Formosa’s Motion

in Limine is GRANTED insofar as it seeks to partially exclude Vaillancourt’s testimony as to his

first opinion because it is not relevant to what Formosa knew on the date of the Policy’s inception

and fails to meet the “fit” prong of Rule 702.

4. Evidence of Attorney Posturing and Mediation Communications

(Fourth Motion)

Formosa asks the Court to preclude ACE from using Trial Exhibits 187, 189, 212, and

160/222, i.e., letters written by attorneys at Kelly Hart—Formosa’s defense counsel—to either the

mediator for the Waterkeeper Litigation or Erin Gaines—counsel for Diane Wilson—because: (1)

they are protected settlement and medication communications under Rule 408, Tex. Civ. Prac. &

Rem. Code § 154.073, and N.J. Stat. Ann. § 2A:23C-4 (“New Jersey Uniform Mediation Act”),21

(2) would undermine the policy goal of encouraging settlements underlying Rule 408 if admitted,

(3) are hearsay pursuant to Rule 801, and (4) are otherwise irrelevant given they are merely defense

21 Formosa includes no choice of law analysis in its brief (ECF 143-1), and neither does ACE (ECF

No. 156).

counsel’s legal opinions22 (ECF No. 143-1 at 9–11). Additionally, Formosa contends “[a]llowing

the jury to consider these communications would risk unfair prejudice, mislead the jury into

confusing counsel’s bargaining positions with the actual merits of the case, and go against the

policies that [Rules] 408 [and] 801, Texas [l]aw and New Jersey law protect.” (Id. at 11.)

In opposition, ACE argues admission of the evidence at issue would not contradict Rule

408 because ACE’s intended reliance on this evidence had “nothing to do with establishing

liability, invalidity of a claim, or the amount of a claim.” (ECF No. 156 at 4.) Specifically, ACE

maintains it intends to use the communications, among other reasons, to show Formosa

intentionally engineered the Consent Decree to transform Formosa’s non-covered liability for

Clean Water Act penalties into covered “remediation costs,” Formosa breached the Policy by

entering into the Consent Decree without ACE’s knowledge or consent, and ACE was prejudiced

as a result. (Id. at 5.) ACE also contends the communications at issue fall within both an express

exception to the New Jersey Uniform Mediation Act, and exception in Texas Civil Practice &

Remedy Code § 154.073. (Id. at 5, 7.) Essentially, ACE argues Texas Rule of Evidence 408 does

not bar settlement negotiations if admitted for a purpose other than proving the liability for or the

invalidity of a claim or its amount. (Id. at 6 (citing TCA Bldg. Co. v. Nw. Res. Co., 922 S.W.2d

629, 636 (Tex. App. 1996), writ denied (Feb. 13, 1997)).)

As to the question of whether the settlement statements constitute hearsay, ACE explains

the communications are not hearsay because ACE is not attempting to offer the communications

to prove the truth of the matter asserted in the statement. (Id. at 8.) ACE also argues even if the

communications were hearsay, they fall within a hearsay exception because they are “supported

22 Trial Exhibits 160 and 222 are duplicative. (Compare ECF No. 143-3 at 9–13, with id. at 17–

21.) Going forward, the memo will simply refer to these exhibits as Exhibit 160.

by sufficient guarantees of trustworthiness” and “are more probative on the point for which they

are offered than any other evidence that [ACE] can obtain through reasonable efforts.”23 (Id.

(quoting Fed. R. Evid. 807).)

In reply, Formosa first explains the communications at issue do not support ACE’s

argument that Formosa intentionally engineered the Consent Decree. (ECF No. 164 at 3.)

However, Formosa’s Reply Brief mainly addresses ACE’s arguments regarding the New Jersey

Uniform Mediation Act. (Id. at 3-6.) Formosa points out that ACE fails to show the

communications fall under an exception to the New Jersey Uniform Mediation Act (id. at 3), as

ACE fails to explain “how or why the evidence is not otherwise available.” N.J. Stat. Ann.

§ 2A:23C-6(b)(2). Formosa notes ACE’s reliance on Berardino v. Prestige Management Services,

Inc., Civ. A. Nos. 14-3451, 14-3492, 2017 WL 9690965, at *5 (D.N.J. Dec. 8, 2017), is misplaced

as Berardino not only dealt with a subpoena for discover and not admissibility but also concerned

a settlement agreement itself and not settlement communications and attorney posturing in the

context of mediation (id. at 4-5). Additionally, Formosa argues ACE’s reliance on West Palm

Beach Hotel, LLC v. Atlanta Underground, LLC, 626 F. App’x 37 (3d Cir. 2015), is likewise

misplaced because it did not involve the admissibility of settlement or mediation communications

for trial (id. at 5–6).

23 ACE also makes various arguments pertaining to Rule 403 and New Jersey’s version of Rule

403, but the Court need not address these arguments because they do not form any basis of

Formosa’s Motion In Limine. (ECF No. 156 7–8.)

a. Choice of Law Analysis

Here, applying Texas law, the commutations at issue must be excluded. In diversity cases,24

Rule 501 refers “district court[s], on questions of privilege, to state law.”25 United Coal Cos. v.

Powell Const. Co., 839 F.2d 958, 965 (3d Cir. 1988) (addressing the attorney client privilege); see

also Napolitano v. Corbishley, Civ. A. Nos. 20-12712, 20-15429, 2021 WL 3486901, at *2 n.2

(D.N.J. Aug. 9, 2021) (“Since this case is here on federal diversity jurisdiction, New Jersey law

governs the extent to which the mediation privilege applies in this case.”).

Although neither Formosa nor ACE has conducted a meaningful choice of law analysis,

both parties make their respective arguments by citing the applicability of both New Jersey and

Texas laws.26 (ECF No. 143-1 at 9–11; ECF No. 156 at 5–9.) Accordingly, the Court must decide

whether New Jersey or Texas law should apply.

“A federal court sitting in diversity applies the choice-of-law rules of the forum state—

here, New Jersey—to determine the controlling law.” Maniscalco v. Brother Int’l (USA) Corp.,

709 F.3d 202, 206 (3d Cir. 2013). “New Jersey has adopted the ‘most significant relationship’ test

set forth in the Restatement (Second) of Conflict of Laws[,]” which is a two-part test. Id. “Under

New Jersey law, where parties lack a contractual choice-of-law clause, as here, [a court] first

‘determine[s] whether an actual conflict exists’ by assessing the ‘substance of the potentially

applicable laws.’” Spalter v. Protective Life Ins., Civ. A. No. 22-3344, 2024 WL 658975, at *2 n.3

24 Formosa’s only claim against ACE is an alleged breach of contract. (ECF No. 1); c.f. Swanger

v. Warrior Run Sch. Dist., 659 F. App’x 120, 124 (3d Cir. 2016) (“[I]n cases involving both federal

and state claims . . . Rule 501 directs us to apply the federal privilege law.” (emphasis added)).

25 “[I]n a civil case, state law governs privilege regarding a claim or defense for which state law

supplies the rule of decision.” Fed. R. Evid. 501.

26 Neither party addressed the choice of law issue at oral argument. (See generally ECF No. 176.)

(3d Cir. Feb. 16, 2024) (quoting P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008)).

The New Jersey Supreme Court has specified this step is “done by examining the substance of the

potentially applicable laws to determine whether ‘there is a distinction’ between them.” Camp

Jaycee, 962 A.2d at 460. If no conflict exists, “there is no choice-of-law issue to be resolved.” Id.

An actual conflict exists when there is a “substantive difference” between the relevant laws of the

states. DeMarco v. Stoddard, 125 A.3d 367, 383 (N.J. 2015) (citing Cornett v. Johnson & Johnson,

48 A.3d 1031, 1047 (N.J. 2012); Camp Jaycee, 962 A.2d at 460). Notably, “[a] substantive

difference between the law of one state and another exists when the difference is offensive or

repugnant to the public policy of this State.” Id. (citing Cornett, 48 A.3d at 1050). “In other words,

a true conflict of law arises when choosing between one or another state’s statute of limitations is

outcome determinative.” McCarrell v. Hoffmann–La Roche, Inc., 153 A.3d 207, 216 (2017).

Only if a conflict exists, does the Court proceed to the second part of the test and “determine

which jurisdiction has the ‘most significant relationship’ to the claim.” Maniscalco, 709 F.3d at

207 (quoting Camp Jaycee, 962 A.2d at 460). In other words, “the Court determines ‘which state

has the most meaningful connections with and interests in the transaction and the parties.’” Spence-

Parker v. Del. River & Bay Auth., 616 F. Supp. 2d 509, 523 (D.N.J. 2009) (quoting NL Indus., Inc.

v. Comm. Union Ins. Co., 65 F.3d 314, 319 (3d Cir. 1995)).

Under the New Jersey Uniform Mediation Act,

[mediation communications] shall not be . . . admissible in evidence

in a proceeding [unless a court] . . . finds, after a hearing in camera,

that . . . [(1)] the proponent of the evidence has shown that the

evidence is not otherwise available, [(2)] that there is a need for the

evidence that substantially outweighs the interest in protecting

confidentiality, and [(3)] that the mediation communication is

sought or offered in . . . a proceeding to prove a claim to rescind or

reform or a defense to avoid liability on a contract arising out of the

mediation.

N.J. Stat. Ann. § 2A:23C-4. However, under Texas’s Alternative Dispute Resolution Procedures

Act (“ADR Act”),

a communication relating to the subject matter of any civil . . .

dispute made by a participant in an alternative dispute resolution

procedure, whether before or after the institution of formal judicial

proceedings . . . may not be used as evidence against the participant

in any judicial . . . proceeding. [However,] [a]n oral communication

or written material used in or made a part of an alternative dispute

resolution procedure is admissible or discoverable if it is admissible

or discoverable independent of the procedure.

Tex. Civ. Prac. & Rem. Code Ann. § 154.073 (emphasis added).27

Formosa and ACE contend that these rules mandate the same outcome, but they disagree

on what that outcome is. (ECF No. 143-1 at 9; ECF No. 156 at 6 (“The result is the same under

Texas law . . . .”).) Formosa asserts the communications at issue are barred under both New Jersey

and Texas law. (ECF No. 143-1 at 9.) ACE argues the opposite is true. (ECF No. 156 at 6.) In

other words, both parties seemingly suggest the Court need not engage in a choice of law analysis.

Upon the Court’s review, a conflict exists—it is clear that “choosing between” Texas and New

Jersey’s mediation privilege laws “is outcome determinative.” McCarrell, 153 A.3d at 216. Indeed,

Texas’s law is far more protective than New Jersey’s. Texas’s ADR Act (“Texas ADR Act”) “has

been described as the most complete in conferring the cloak of confidentiality on communications

made during alternative dispute resolution procedures.” Smith v. Smith, 154 F.R.D. 661, 666–67

(N.D. Tex. 1994). The ADR Act’s only “exceptions” as to the “oral communication or written

material used in or made a part of an alternative dispute resolution is [that which is] admissible . . .

independent of the procedure” and “other legal requirements for disclosure of communications,

27 While confidentiality and privilege are distinct concepts, courts in Texas characterize the

protection provided by the ADR Act as a “mediation privilege.” See, e.g., Hydroscience Techs.,

Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 796 (Tex. App. 2013).

records, or materials.” Tex. Civ. Prac. & Rem. Code Ann. § 154.073; see Gaskin v. Gaskin, Civ.

A. No. 06-039, 2006 WL 2507319, at *3 (Tex. App. Aug. 31, 2006); see also Int. of G.L.W., Civ.

A. No. 05-0327, 2024 WL 3755278, at *7 (Tex. App. Aug. 12, 2024) (listing exceptions).28

But under the New Jersey Uniform Mediation Act, even if a mediation communication

were not otherwise admissible independent of the procedure, a proponent of the mediation

communication could seek to admit such evidence by sufficiently showing (1) “the proponent of

the evidence has shown that the evidence is not otherwise available,” (2) “there is a need for the

evidence that substantially outweighs the interest in protecting confidentiality, and” (3) “the

mediation communication is sought or offered in . . . a proceeding to prove a claim to rescind or

reform or a defense to avoid liability on a contract arising out of the mediation.” N.J. Stat. Ann.

§ 2A:23C-6.

Therefore, if the Court determines Texas law applies here, the Texas ADR Act would bar

the attorney posturing and mediation communications evidence as such posturing and

communications were “used in [and] made a part of an alternative dispute resolution.” Tex. Civ.

Prac. & Rem. Code Ann. § 154.073. However, if the Court determines New Jersey law applies

here, ACE could seek to admit the evidence through the New Jersey Uniform Mediation Act’s

broader exception. N.J. Stat. Ann. § 2A:23C-6. Given this conflict between the Texas and New

Jersey laws at issue, the Court must “determine which jurisdiction has the ‘most significant

relationship’ to the claim.” Maniscalco, 709 F.3d at 207 (quoting Camp Jaycee, 962 A.2d at 460).

To determine which state has the most significant relationship, New Jersey courts consider

28 The key exceptions, which are inapplicable here, are as follows: (1) where a plaintiff sought to

prove a new and independent tort, Avary v. Bank of Am., N.A., 72 S.W.3d 779, 800 (Tex. App.

2002), and (2) where the evidence was admissible or discoverable independent of the mediation

process. Chintam v. Chintam, No. 05-22-00022-CV, 2023 WL 5345829, at *5 (Tex. App. Aug.

21, 2023).

the factors set forth in Restatement (Second) Conflict of Laws (“The Restatement”) § 6 (“Section

6 Factors”). See P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453 (2008) (“New Jersey

. . . adheres to the method of analysis set forth in Restatement sections 6 and 145 [to determine

choice-of-law].”); see also Gilbert Spruance Co. v. Pa. Mfrs. Ass’n Ins. Co., 629 A.2d 885, 888

(N.J. 1993).29 The factors are:

a. the needs of the interstate and international systems;

b. the relevant policies of the forum;

c. the relevant policies of other interested states and the relative

interests of those states in the determination of the particular

issue;

d. the protection of justified expectations;

e. the basic policies underlying the particular field of law;

f. the certainty, predictability and uniformity of result; and

g. the ease in the determination and application of the law to be

applied.

Restatement (Second) of Conflict of Laws (1971) § 6.

Here, the Section 6 factors indicate Texas law should govern the issue of the mediation

privilege. See Camp Jaycee, 962 A.2d at 463. The competing interests of the states and relevant

mediation privilege law principles overlap in this case. Here, the basic policies underlying

mediation privilege cut across both the New Jersey Uniform Mediation Act and the Texas ADR

Act. Both laws seek to promote mediation and settlement by enabling candor. See Willingboro

Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 71 A.3d 888, 895–96 (2013); Chintam v. Chintam,

Civ. A. No. 22-022, 2023 WL 5345829 (Tex. App. Aug. 21, 2023). Both New Jersey and Texas

seek to promote these goals by setting up protections for mediation communications with limited

exceptions; however, as discussed above, Texas offers greater protection, meaning, unlike New

29 It appears no New Jersey court has conducted a choice of law analysis as pertains to competing

mediation privileges.

Jersey, Texas seeks to make it more difficult to pierce the veil that keeps mediation

communications beyond what is admissible. Smith, 154 F.R.D. at 666–67.

As to the justified expectations of the parties factor, it follows that the parties who made

the communications expected those communications would remain confidential under the law of

that jurisdiction, here, Texas. (ECF No. 143 at 9 (addressing Mediator Karl Bayer)); see, e.g., Lego

v. Stratos Lightwave, Inc., 224 F.R.D. 576, 579 (S.D.N.Y. 2004). Further, since Texas is where

the Waterkeeper Litigation was litigated, it is where the parties would most expect the law to apply.

Waterkeeper, 2019 WL 2716544. Additionally, the interest of interstate comity also counsels

towards applying Texas law as it still serves the policy underlying the New Jersey Uniform

Mediation Act, while not undermining the heightened protections Texas intends parties to rely

upon. In contrast, applying New Jersey law will frustrate Texas’s far more protective mediation

communication privilege. See, e.g., Camp Jaycee, 962 A.2d at 466. Given a majority of the Section

6 Factors indicate Texas law should govern, the Court need not delve into the judicial

administration factor because it is of “lesser importance and must yield to a strong state interest

implicated by the [other] factors.” Fu v. Fu, 733 A.2d 1133, 1142 (N.J. 1999). For the foregoing

reasons, Texas’s mediation communication privilege applies here. Therefore, given Formosa has

shown the mediation communications were offered as part of the mediation process and ACE has

failed to identify the applicability of any exception to the mediation privilege, Formosa’s Motion

in Limine insofar as it seeks to exclude Trial Exhibits 187, 189, 212, and 160 is GRANTED. See

TCA Bldg. Co., 922 S.W.2d at 636.

5. Evidence Concerning the Reasonableness of Formosa’s Settlement of the

Waterkeeper Litigation (Fourth Motion)

Applying Texas law, Formosa first argues ACE should be precluded from offering

evidence or arguing that the Waterkeeper Settlement was unreasonable because ACE “may not

challenge the reasonableness of a settlement if it engaged in the wrongful denial of coverage.”

(ECF No. 144-1 at 6 (quoting Emps. Cas. Co. v. Block, 744 S.W.2d 940, 942–43 (Tex. 1988).)

Formosa also argues the reasonableness of the Consent Decree is not relevant and should otherwise

be excluded because dangers of confusing the issues, misleading the jury, and wasting time

outweigh any limited probative value. (Id. at 8.) Formosa argues that if ACE can raise arguments

of reasonableness, it can only address whether the settlement amount was reasonable compared to

Formosa’s entire legal exposure. (Id. at 9 (citing Pride Transp. v. Continental Cas. Co., 804 F.

Supp. 2d. 520, 526 (N.D. Tex. 2011).)

ACE counters under Texas and New Jersey law, it can challenge the reasonableness of the

Waterkeeper Settlement because it did not wrongfully deny coverage when it “agreed to provide

[Formosa] with a defense subject to a reservation of rights.” (ECF No. 155 at 4.) ACE also argues

Texas law does not support Formosa’s argument that the only possible issue as to the

reasonableness of the settlement amount is whether it was reasonable when compared to the

liability Formosa was facing. (Id. at 10.) Additionally, ACE argues the issue of the Waterkeeper

Settlement’s reasonableness is most relevant to ACE’s position that Formosa fabricated the

Consent Decree “to transform its non-covered liability . . . into potentially covered ‘remediation

costs.’” (Id.) Accordingly, ACE argues the probative value of this evidence is not substantially

outweighed. (Id.)

In reply, Formosa points out that ACE seemingly agrees that under Texas law, if there is a

finding it breached its duty to indemnify prior to settlement, it cannot attack the reasonableness of

the settlement. (ECF No. 165 at 4.) Formosa contends ACE only argues it “had not wrongfully

denied [coverage] before the Consent Decree and was defending under a reservation of rights.”

(Id. (emphasis added).) In other words, Formosa argues this evidence should be excluded because

it plans to show ACE did breach prior to the settlement date, which would, under Texas law,

preclude an attack on the settlement based on reasonableness grounds. (Id. at 4–5.) As such,

Formosa repeats that “only evidence on the reasonableness issue is evidence of the liability that

was facing Formosa and evidence of the amount of settlement.” (Id. at 3.)

The Court need not determine whether Texas or New Jersey law applies. It is the parties’

obligation to sufficiently brief the issue, and ACE makes no effort to address the choice of law

inquiry. (See generally ECF No. 155.) Instead, ACE merely states “[t]he standard under New

Jersey law is even more insurer friendly.” (Id. at 6 (arguing the New Jersey standard is higher

because it also requires good faith).) Given ACE “relies heavily on [Texas] case law in opposing

[Formosa’s] motion,” the Court reads ACE’s Opposition to have conceded Texas law applies.

Sloan v. Urb. Title Servs., Inc., 689 F. Supp. 2d 94, 106 (D.D.C. 2010); see Williams v. BASF

Catalysts LLC, 765 F.3d 306, 316 (3d Cir. 2014) (“[T]he doctrine of waiver serves a functional

purpose. By requiring litigants to identify and argue legal issues before the district courts, we

ensure that we have a record to review on appeal. The same principles favor a rule that requires

litigants to raise choice-of-law issues to the District Court.”).

It is undisputed that under Texas law if an insurer wrongfully denies coverage before a

settlement was entered into, the insurer may not challenge the reasonableness of the settlement.

See Emps. Cas. Co., 744 S.W.2d at 942–43; (see also ECF No. 165 at 4; ECF No. 155 at 5.)

However, the parties disagree as to whether there was an impermissible pre-settlement denial of

coverage. (ECF No. 144-1 at 7–8; ECF No. 155 at 4–5.) Under Texas law, when “an insurer

properly reserves its rights to later deny coverage and the insured elects to pursue its own defense

and ultimately settles the case, the insurer is bound to pay only damages up to the policy limits

which (1) resulted from covered conduct, and (2) were reasonable and prudent.” Transp. Ins. Co.

v. Heiman, No. 95-482, 1999 WL 239917, at *5 (Tex. App. Apr. 26, 1999). According to ACE, it

did not deny coverage when it agreed to provide a defense to Formosa in the Waterkeeper

Litigation subject to a reservation of rights. (ECF No. 155 at 4–5.) But, according to Formosa,

ACE had denied coverage because it had, among other things, “failed to act and effectively

disclaimed any responsibility to defend Formosa in the Waterkeeper Litigation,” and “did not have

an interest in taking an active role in the Waterkeeper Litigation.” (ECF No. 144-1 at 7 (internal

quotations and citation omitted); see also ECF No. 165 at 4–5 (“The facts will demonstrate that

ACE had taken a continuous no indemnity position from day one of the claim.”).)

First, ACE is not precluded from challenging the reasonableness of the settlement because

ACE provided coverage under a reservation of rights before the parties entered into the settlement.

See Emps. Cas. Co., 744 S.W.2d at 942–43; Rhodes v. Chicago Ins. Co., 719 F.2d 116, 120 (5th

Cir.1983) (noting a reservation of rights is proper action when insurer believes, in good faith, that

complained-of conduct may not be covered under policy). Indeed, at oral argument, Formosa itself

acknowledged ACE “had a duty to defend and . . . defended.” (ECF No. 176 at 20.)

Second, the Court rejects Formosa’s formulation of the operative reasonableness metric.

That formulation—which measures reasonableness by looking only at the merits of the settled

claim and the potential liability of its insured on that claim—is limited to claims brought pursuant

to G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544, 547 (Tex. Com. App. 1929),

which unlike the claims in this case, are claims against insurers for negligently failing to settle a

claim within policy limits. Indeed, in In re Farmers Texas Cnty. Mut. Ins. Co., 621 S.W.3d 261,

267–68, 274 n.13 (Tex. 2021) (citing Jordan R. Plitt, et al., Couch On Ins. § 203:43 (3d ed. 2023)—

a case where the Texas Supreme Court held that Stowers did not apply—the court embraced a

number of factors to assess the reasonableness of settlement, including “any evidence of bad faith,

collusion, or fraud by the insured.” Here, ACE seeks to introduce circumstantial evidence of

Formosa’s efforts to “transform its non-covered liability for penalties under the Clean Water Act

into potentially covered ‘remediation costs.’” (ECF No. 155 at 10.) That evidence aligns with the

factors the Texas Supreme Court considered when evaluating the reasonableness of settlement. In

re Farmers Texas Cnty. Mut. Ins. Co., 621 S.W.3d at 267–68, 274 n.13. Accordingly, Formosa’s

motion seeking to exclude evidence concerning the reasonableness of Formosa’s settlement of the

Waterkeeper litigation is DENIED.

B. Plaintiff’s Motions in Limine

ACE moves to exclude the following: Posner’s expert testimony (ECF No. 135-1);

Anderson’s expert testimony (ECF No. 136-1); and documents withheld on the basis of privilege

(ECF No. 137-1). Additionally, ACE asks the Court to take judicial notice of the following:

documents from the Waterkeeper Litigation (ECF No. 138-1) and the existence of the Matagorda

Bay Mitigation Trust website (ECF No. 140-1).30

1. Jeffrey M. Posner’s Expert Testimony (First Motion)

ACE first argues Posner’s expert testimony should be excluded because testimony

concerning alleged misconduct by ACE would not only prejudice ACE but also confuse and

mislead the jury. (ECF No. 135-1 at 8–12.) ACE also points out Posner’s report includes a legal

conclusion the Court should exclude. (Id. at 11.) Additionally, ACE contends Posner’s testimony

concerning ACE’s Reservation of Rights Letter (“ROR Letter”) should be excluded because it

would confuse and mislead the jury, prejudice ACE, and improperly speaks to ACE’s state of

mind. (Id. at 12–15.) Moreover, ACE argues Posner’s testimony concerning ACE’s intent that it

30 According to ACE, the website is operated by the Trust established pursuant to the Consent

Decree in the Waterkeeper Litigation. (ECF No. 140-1 at 2–3.)

was never going to provide indemnity coverage must be excluded because it impermissibly

presupposes ACE’s state of mind. (Id. at 16–18.)

In opposition, Formosa argues Posner should be permitted to testify regarding ACE’s

failure to engage in Formosa’s defense because testimony on the customs and practices in the

insurance industry will help the jury understand what an insurer and an insured are supposed to do

during the defense of a case. (ECF No. 148 at 6–11.) Additionally, it appears Formosa counters

ACE’s argument seeking to exclude Posner’s testimony concerning the ROR Letter merely by

arguing, without citing any law, that ACE’s arguments are meritless. (Id. at 11–13.) Formosa then

argues Posner’s opinion that ACE planned to deny coverage all along is not speculation about

ACE’s intent, motive, or state of mind but an opinion derived in part from Posner’s experience in

the insurance industry. (Id. at 13–14.)

In reply, ACE argues Posner’s testimony concerning the customs and practices of the

insurance industry should be excluded because Formosa’s planned use of this evidence

“effectively asks the jury to ignore the Policy’s reporting and cooperation provisions,” which ACE

contends would both confuse the jury and prejudice ACE. (ECF No. 160 at 3–5.) As to Posner’s

testimony concerning ACE’s ROR Letter, ACE points out Formosa offers “little, if any substance

to rebut” ACE’s argument seeking to exclude such evidence. (Id. at 6.) ACE also repeats that

Posner impermissibly testifies as to ACE’s intent motive, or state of mind. (Id.) Finally, ACE

repeats its argument that Posner should not be permitted to testify that ACE was never going to

provide indemnity coverage because such testimony is also impermissible testimony as to ACE’s

intent, motive, or state of mind. (Id. at 6–7.)

a. Posner’s Testimony as to Custom and Practice

Posner’s expert testimony will help the jury understand Formosa and ACE’s respective

duties. “‘Fit’ requires that the proffered testimony must in fact assist the jury, by providing it with

relevant information, necessary to a reasoned decision of the case.” Magistrini v. One Hour

Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J. 2002). While it is true the Policy’s

“language determines the insurer’s duties,” In re Farmers Texas Cnty. Mut. Ins. Co., 604 S.W.3d

421, 427 (Tex. App. 2019), information regarding the customs and practices in the insurance

industry may well help the jury understand how an insurer and an insured are supposed to act

during the defense of a case. See Flemming ex rel. Est. of Flemming v. Air Sunshine, Inc., 311 F.3d

282, 297 (3d Cir. 2002) (holding the district court did not abuse its discretion in refusing to exclude

an expert’s opinion on the custom and usage of the term “occurrence” in the insurance industry).

However, the legal conclusions in Posner’s report that ACE breached its duty to defend under the

Policy are excluded and Posner may not testify about any such legal opinions. See Berckeley Inv.

Grp. Ltd. V. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006).

b. Posner’s Testimony Concerning ACE’s ROR Letter

Posner’s testimony concerning ACE’s ROR Letter would confuse the jury and should be

excluded. ACE is chiefly (and correctly) concerned Posner’s testimony distorts the Policy’s

reporting, cooperation, and consent-to-settle provisions because ACE’s reservation of rights under

the Policy in no way negates Formosa’s duties pursuant to the Policy’s reporting and cooperation

provisions. (ECF No. 135-1 at 3–14.) Although Rule 403 carries with it a “presumption of

admissibility,” United States v. Downing, 753 F.2d 1224, 1230 (3d Cir. 1985), ACE has

sufficiently shown that any probative value of Posner’s testimony is substantially more prejudicial.

See Fed. R. Evid. 403. Looking at the text of the ROR Letter and Posner’s own deposition

testimony, the issuance of ACE’s ROR Letter did not constitute a waiver of any right, remedy, or

defense available to ACE. (ECF No. 85-5 at 129; ECF No. 135-3 at 37.) Allowing Posner to testify

that the ROR Letter negates Formosa’s duties would be highly prejudicial given its inaccuracy;

therefore, any such testimony must be excluded.31

Accordingly, ACE’s Motion in Limine seeking to exclude the expert testimony of Posner

is GRANTED IN PART and DENIED IN PART. Specifically, as discussed above, the legal

conclusions in Posner’s report that ACE breached its duty to defend under the Policy are excluded,

and Posner may not testify about any such legal opinions. See supra Section III.B.1.a.

Additionally, Posner may not testify that ACE’s ROR Letter constituted a waiver of any right,

remedy, or defense available to ACE.

2. Rick M. Anderson’s Expert Testimony (Second Motion)

ACE first argues that Anderson’s expert testimony concerning Formosa’s discharge of

“trace” amounts of plastic pellets must be excluded. Specifically, ACE contends Anderson’s

testimony “amounts to nothing more than a lay opinion” because it is not “the product of reliable

principles and methods” and does not “reflect his ‘scientific technical, or other specialized

knowledge’ in the field of environmental compliance” (ECF No. 136-1 at 8, 11 (quoting Fed. R.

Evid. 702)). ACE then argues Anderson’s expert rebuttal testimony should be excluded because it

merely rehashes the Waterkeeper Court’s findings in the Waterkeeper Litigation and would

mislead the jury and cause undue prejudice to ACE because it is factually and legally inaccurate

(id. at 12–17).

31 Because the Court excludes this evidence on Rule 403 grounds, it need not address ACE’s

alternative argument seeking to exclude Posner’s testimony for impermissibly opining on ACE’s

state of mind.

In opposition, Formosa offers little, if anything at all, about whether Anderson’s opinion

stems from reliable principles and methods. (See generally ECF No. 149.) Instead, Formosa argues

Anderson’s opinion—that the TCEQ provided Formosa an unclear definition of the amount or

volume of allowable plastics to be discharged and TCEQ failed to give Formosa any indication it

had violated its permit—will assist the jury in evaluating whether Formosa knew the plastic

discharges were violating the permit at the time. In other words, Formosa counters by making a

relevance argument. (Id. at 10, 12.) Additionally, as to ACE’s argument that Anderson’s rebuttal

testimony is merely a rehashing of Judge Hoyt’s findings, Anderson argues Vaillancourt’s fifth

opinion is based on impermissible hearsay, such that Anderson should be permitted to rely on

Judge Hoyt’s findings. (Id. at 12–13.) Furthermore, ACE argues Anderson’s rebuttal testimony

would not mislead a jury. (Id. at 13–16.) ACE contends the focus of Anderson’s testimony is not

the factual error that Formosa points out, i.e., whether the EPA or DOJ are natural-resource

trustees, but rather the “scope and nature of the various regulatory rules and statutes involved in

the Waterkeeper” Litigation. (Id. at 14.)

In reply, ACE makes the following arguments in support of excluding Anderson’s expert

testimony concerning Formosa’s discharge of “trace” amounts of plastic: (1) Anderson’s opinion

as to what the TCEQ would consider a “trace” amount is not based on any “scientific technical, or

other specialized knowledge” (ECF No. 161 at 4), (2) an expert witness cannot opine on a party’s

“intent, motive, or state of mind” (id. (quoting Bracco Diagnostics, Inc., 627 F. Supp. 2d at 440)),

(3) regardless of whether Anderson’s testimony is needed to rebut ACE’s reliance on the June

2010 EPA inspection of the Point Comfort Plant to establish the applicability of the Policy’s

exclusion provisions, Anderson’s testimony is not based on a reliable method (id. at 4–5), and (4)

it is no matter that Vaillancourt offered a rebuttal report to Anderson’s expert opinions concerning

“trace” amounts of plastic discharges because unlike Vaillancourt, Anderson did not offer a sound

opinion on the definition of “trace” and Vaillancourt’s rebuttal opinion is not at issue (id. at 5).

Here, with respect to Anderson’s expert testimony concerning Formosa’s discharge of

“trace” amounts of plastic pellets, the Court excludes such expert testimony because, as ACE

correctly argues (ECF No. 136-1 at 12), Anderson “use[s] little, if any, methodology beyond his

own intuition” to opine on what constitutes a “trace” amount of plastic. Oddi v. Ford Motor Co.,

234 F.3d 136, 158 (3d Cir. 2000) (“There is nothing here to submit to peer review, and it is

impossible to ascertain any rate of error for [the expert’s] assumptions . . . .[N]o standards control

his analysis, and no ‘gatekeeper’ can assess the relationship of [the expert’s] method to other

methods known to be reliable . . . .”) While Anderson is presumably qualified to opine on what

constitutes a “trace” amount (ECF No. 136-1 at 9 (“Anderson has “worked at the . . . TCEQ . . .

for 35 years.”)), “the qualifications of the expert witness testifying based on the methodology” is

but one factor when evaluating the reliability of an expert’s methodology. Paoli, 35 F.3d at 742

n.8. In other words, Anderson’s qualifications are not enough to admit his testimony insofar as it

opines on what constitutes “trace” amounts of plastic, particularly given the lack of any underlying

methodology. Oddi, 234 F.3d at 158. Indeed, Anderson’s deposition testimony illustrates that his

definition of “trace” was grounded in little more than intuition. (ECF No. 136-3 at 13 (“I don’t

believe I have a definition for ‘trace.’ I could use it in, you know, broad terms of some, but not a

lot.”).)

Moreover, in response to ACE’s reliance on the June 2010 EPA inspection of the Point

Comfort Plant to establish the applicability of the exclusion provisions, Formosa seeks to admit

Anderson’s testimony to show Formosa did not discharge more than a trace amount of pellets, to

which ACE objects. (ECF No. 136-1 at 8.) Anderson’s testimony concerning Formosa’s operations

in 2010 is based merely on Anderson’s viewing of photos. (ECF No. 136-3 at 12.) Under Rule

702’s “fit” prong, this is not a reliable method to form an expert opinion concerning “trace”

amounts. See e.g., Gonzalez-Lopez v. Perfect Trading, Inc., Civ. A. No. 21-12906, 2024 WL

1406563 (D.N.J. Apr. 2, 2024) (“[The expert’s] opinion is based on his observation of the video

footage and review of discovery from this case rather than from any scientific methodology.

Therefore, it does not satisfy the precondition of providing a ‘scientific connection’ to the issue at

bar.”) In fact, at one point, Anderson even testified that he “d[id]n’t believe that those photographs

demonstrated compliance or noncompliance with . . . [Formosa’s] permit.” (ECF No. 136-3 at 12

(emphasis added).) Accordingly, Anderson’s expert testimony concerning the “trace” amounts of

plastic discharge is excluded on both reliability and fit grounds. Schneider v. Fried, 320 F.3d at

404 (listing the “trilogy of restrictions on expert testimony: qualification, reliability and fit”).

As to Anderson’s rebuttal testimony, the Court excludes such testimony to the extent it is

merely parroting Judge Hoyt’s findings. (ECF No. 136-1 at 13–14 (highlighting excerpts from

Anderson’s rebuttal report that merely repeat Judge Hoyt’s findings).) As other courts in this and

other districts have explained, opinions that simply rehash otherwise admissible evidence the jury

is capable of understanding are not properly the subject of expert testimony because they are lay

matters. O’Bryant v. Johnson & Johnson, Civ. A. No. 20-2361, 2022 WL 7670296, at *13 (D.N.J.

Oct. 13, 2022); see e.g., Arevalo, 2020 WL 3958505, at *21; Highland Cap. Mgmt., L.P. v.

Schneider, 379 F. Supp. 2d 461, 468–69 (S.D.N.Y. 2005) (“An expert may testify to a review of

internal documents for the purpose of explaining the basis for his or her admissible opinions . . .

[b]ut simply parroting [d]efendant’s corporate documents or offering a narrative account of events

from them will not be helpful to the jury.”). This principle applies here, where Anderson does no

more than restate Judge Hoyt’s findings. Accordingly, ACE’s Motion in Limine seeking to exclude

Anderson’s expert testimony is GRANTED.

3. Documents Withheld on the Basis of Privilege (Third Motion)

ACE asks the Court to bar Formosa from introducing documents withheld on the basis of

privilege at trial. (See ECF No. 137-1 at 5–9); see also Formosa Plastics Corp., U.S.A. v. Ace Am.

Ins. Co., Civ. A. No. 20-14338, 2023 WL 8446228, at *12 (D.N.J. June 8, 2023), aff’d, 2023 WL

6633852 (D.N.J. Oct. 12, 2023) (holding Formosa “has [not] put attorney-client protected

information ‘at issue’”). Essentially, ACE argues if Formosa is permitted to introduce withheld

evidence at trial, it will face an incurable prejudice, which will disrupt proceedings. (Id.) In reply,

Formosa reminds the Court “none of [the privileged documents] are on its Exhibit List attached to

the Pre-Trial Order.” (ECF No. 150 at 2.)

Reading Formosa’s reply to mean it does not plan on introducing testimony or evidence

previously withheld as privileged, the Court RESERVES judgment on ACE’s third Motion in

Limine and will “entertain objections to specific lines of questioning at trial.” Apotex, Inc. v.

Cephalon, Inc., Civ. A. Nos. 06-2768, 10-5164, 09-3956, 09-3820, 2017 WL 2362400 (E.D. Pa.

May 31, 2017).

4. Judicial Notice of the Waterkeeper Litigation (Fourth Motion)

ACE asks the Court to take judicial notice of all pleadings, deposition testimony, trial

testimony, and conclusions of fact and law from the Waterkeeper Litigation pursuant to Rule 201.

(ECF No. 138-1 at 2–3.)

In its opposition, Formosa makes three arguments: (1) Formosa’s request for judicial notice

is overly broad and, regardless, the documents and testimony for which it seeks judicial notice

largely irrelevant, (2) judicial notice cannot circumvent the rule against hearsay, and (3) judicial

notice does not permit this Court to accept Judge Hoyt’s findings of fact and conclusions of law

as truth of the matters asserted in the Waterkeeper Litigation. (ECF No. 151 at 6–10.)

In reply, ACE argues it need not “identify by page and line each and every statement that

is the subject of [its] request” for judicial notice. (ECF No. 158 at 4–5.) In essence, ACE contends

its request for judicial is not overly broad and in compliance with Rule 201(c). (Id.) Additionally,

ACE contends the Waterkeeper Litigation documents and testimony for which it seeks judicial

notice are relevant because they are vital to its defense against this coverage action. (Id. at 5–6.)

As to Formosa’s hearsay argument, ACE asserts it does not seek to introduce the deposition and

trial testimony from the Waterkeeper Litigation to prove the truth for the matter asserted in the

statement. (Id. at 6) Moreover, even if it did endeavor to do so, ACE contends the deposition and

trial testimony are not hearsay pursuant to Rule 801(d) because Formosa’s witnesses are available

to testify at the trial of this proceeding and are subject to cross-examination and such testimony is

an opposing party’s statement. (Id.) And as to Formosa’s argument that Judge Hoyt’s findings of

fact and conclusions of law are not the proper subject of judicial notice, while couched in

adversarial language, ACE appears to concede that judicial notice of a prior case is appropriate

insofar as it is merely notice of the existence of a prior court decision, finding of fact, conclusion

of law, or filing. (Id. at 7.)

The Court declines to take judicial notice of “all” the pleadings, deposition testimony, trial

testimony, and conclusions of fact and law from the Waterkeeper Litigation. (ECF No. 138-1 at 2

(emphasis added).) “As written, the requests place the onus on the Court to identify and decide

which particular facts from the . . . court record will be judicially noticed. That is too broad . . . .”

Mulcahy v. New Chicago Indiana Town of, Civ. A. No. 24-344, 2025 WL 2379696, at *6 (N.D.

Ind. Aug. 15, 2025) (emphasis added). ACE’s request does not provide the Court with the

“necessary information” required by Rule 201(c)(2). Accordingly, ACE’s fourth Motion in Limine

is DENIED.32

5. Judicial Notice of the Matagorda Bay Mitigation Trust Website (Fifth

Motion)

ACE asks the Court to take judicial notice of the Matagorda Bay Mitigation Trust

(“MBMT”) website’s mere existence. (ECF No. 140-1 at 2–3.)

In opposition, Formosa argues the Court should refuse to take judicial notice of the website

because it is a non-government website that cannot be authenticated. (ECF No. 152 at 6–9.)

Additionally, Formosa argues the Court should not admit evidence of the website because it is

inadmissible hearsay, unauthenticated, and irrelevant. (Id. at 9–11.)

In reply, ACE notes “[f]ederal courts across the country” take judicial notice of factual

information found on websites.” (ECF No. 159 at 4 (collecting cases where courts have taking

judicial notice of information from non-governmental websites).) Additionally, ACE affirms the

authenticity of the website, pointing out that the website “was created pursuant to and operates

under the auspices of the Consent Decree, which itself provides for creation of the” MBMT. (Id.

at 5.) Moreover, ACE contends the website is relevant essentially because it was created pursuant

to the Consent Decree. (Id. at 6.)

The Court declines to take judicial notice of the MBMT website.33 See Mininsohn

Chiropractic & Acupuncture Ctr., LLC v. Horizon Blue Cross Blue Shield of New Jersey, Civ. A.

No. 23-1341, 2024 WL 4025957, at *9 (D.N.J. Aug. 30, 2024) (noting a non-governmental website

32 Because the Court may take judicial notice “at any stage of the proceeding,” Fed. R. Evid. 201,

ACE is permitted to file a new motion in limine with greater specificity.

33 Additionally, the Court need not address Formosa’s hearsay objections as ACE filed a motion

in limine seeking judicial notice, not to admit the website into evidence.

was not “deserv[ing] [of] judicial notice by the Court”). Simply put, because the MBMT website

presents accuracy and authentication issues, judicial notice would be inappropriate. Accordingly,

ACE’s fifth Motion in Limine is DENIED.

IV. CONCLUSION

For the reasons set forth above, Formosa’s first motion in limine is GRANTED, its second

motion in limine is GRANTED IN PART and DENIED IN PART, its third motion in limine is

GRANTED, its fourth motion in limine is GRANTED, and its fifth motion in limine is DENIED;

ACE’s first motion in limine is GRANTED IN PART and DENIED IN PART, its second motion

in limine is GRANTED, its fourth motion in limine is DENIED, and its fifth motion in limine is

DENIED. Additionally, the Court RESERVES judgment on ACE’s third motion in limine. An

appropriate Order follows.

Date: March 18, 2026 /s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE