Plaintiff, Yoel Weisshau challenged the constitutionality, under the dormant Commerce Clause, of the Port Authority’s toll and fare increases, in effect since September 18, 2011, on all the Port Authority’s bridges and tunnels within the Interstate Transportation Network (“ITN”).
Plaintiff filed a motion to strike Elizabeth McCarthy’s affidavit and cash flow analysis, as well as her reply to Plaintiff’s expert report. By his motion, Plaintiff additionally sought an order “precluding the submissions of the expert witness Elizabeth McCarthy, precluding the Port Authority of New York and New Jersey from submitting any documents and printouts, calculations, and data downloaded from its General Ledger, and sanctioning Defendant for withholding discoverable information.”
Financial Expert Witness
Elizabeth M. “Libby” McCarthy joined the Port Authority as Chief Financial Officer (CFO) in January 2013.
As CFO, McCarthy is responsible for overseeing, managing, and directing the Port Authority’s financial and accounting functions. This includes responsibility for over $5 billion of annual revenues, $3 billion of annual operating budget expenses, and the annual Capital Plan investments in support of the agency’s 2017 to 2026 Capital Plan.
Discussion by the Court
Plaintiff argued that McCarthy’s “cash flow analysis is pure hearsay and inadmissible for purposes of trial and summary judgment.” For Plaintiff, the information is hearsay because McCarthy “does not have personal knowledge of the figures cited in [the cash flow analysis] to be accurate” since her staff prepared information on her behalf. However, Rule 703 states that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
The Court held that McCarthy’s staff made her aware of information from the General Ledger, which they reviewed and discussed. Thus, the Court declined to find here that McCarthy’s cash flow analysis is inadmissible hearsay.
Held
The Court denied Plaintiff’s motion to strike Elizabeth McCarthy’s affidavit and cash flow analysis.
Key Takeaway:
As per 703, McCarthy’s “cash flow analysis” is not hearsay because McCarthy’s staff made her aware of information from the General Ledger, which they reviewed and discussed.
Case Details:
| Case Caption: | Weisshaus V. The Port Authority Of New York And New Jersey Et Al |
| Docket Number: | 1:11cv6616 |
| Court: | United States District Court for the Southern District of New York |
| Order Date: | August 22, 2024 |
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