Board of Trustees of the Freeholders & Commonality v. Suffolk County

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

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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

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

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

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

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