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DOCKET NO. FST-CV17-6031032-S : SUPERIOR COURT
GERALD METALS, LLC and :
GERALD METALS SARL : JD OF STAMFORD
: AT STAMFORD
Plaintiffs,
v.
CERTAIN UNDERWRITERS SUBSCRIBING
TO MARINE CARGO INSURANCE POLICIES
NOs. B07853PC1309890000,
B0753PC1412113000, and
B1353DC 1501253000, :
Defendants : SEPTEMBER 21, 2022
MOTION IN LIMINE TO EXCLUDE TESTIMONY
OF PLAINTIFFS’ EXPERT CAPTAIN ROLAND ORANGE
Defendants, Certain Underwriters Subscribing to Marine Cargo Insurance Policies Nos.
B07853PC1309890000, B0753PC1412113000 and B1353DC1501253000 (‘“Defendants” or
“Underwriters”), through their counsel Tisdale & Nast Law Offices, LLC submit this motion in
limine to exclude the trial testimony of Plaintiffs’ expert Captain Roland Orange. On July 21,
2022, the deposition of Captain Roland Orange (“Capt. Orange”) was conducted by Plaintiffs in
lieu of his personal attendance at trial. Plaintiffs should be precluded from introducing any part of
Capt. Orange’s testimony at trial.
Capt. Orange does not meet the threshold requirements necessary to allow him to testify as
an expert in the areas in which he seeks to opine. Capt. Orange is usurping the function of the
jury, essentially telling the jury what they should find. Capt. Orange has given testimony outside
the scope of his expert disclosure, which further highlights Plaintiffs’ violation of their ongoing
discovery obligations. Unlike many other motions in limine, no guesswork is required to
determine what Capt. Orange will say at trial. The deposition transcript is his trial testimony.FACTUAL BACKGROUND
A. Captain Roland Orange’s Background and Qualifications.
Capt. Orange is the General Manager of Solis Marine Consultants. Prior to his work at
Solis, Capt. Orange spent over 22 years of his career sailing onboard chemical and gas tankers.
His last experience onboard dry bulk carriers was over twenty years ago, and never in China.
(Deposition of Capt. Orange, p. 84, In. 1 — p. 85 In. 9; The deposition of Capt. Orange shall
hereafter be referred to as Exhibit 1). Since 2009 Capt. Orange has been in the consulting business.
None of his consulting experience qualifies him to provide the ambiguous opinions for which he
has been proffered. In fact, he admitted that none of the experience set forth in his CV was relevant
to the opinions he is being asked to offer. (Ex. 1, p. 90, In. 10 — p. 95, In. 8). After stating that
experience at one Chinese port is not the same experience at any other Chinese ports because the
rules are not uniform for all ports, Capt. Orange admitted that he never before investigated a cargo
theft at Qingdao Port, and was never involved in a fraud investigation by the Qingdao Police. (Ex.
1, p. 93, In. 15 — p. 95, In. 17; p. 142, In. 11 — p. 144, In. 8). In fact, he had never been in the
Qingdao Dagang warehouse until 2019. Capt. Orange has only previously testified in arbitration
proceedings as a navigation or chemical carrier expert. He has never been qualified to testify in
any court proceedings nor has he ever testified as an expert in a case involving a warehouse loss.
In fact, Capt. Orange specifically testified that he does not have any expertise in the area in which
he was testifying in this case. (Ex. 1, p. 72, In. 10 —p. 74, In. 20; p. 90, In. 23 — p. 96, In. 16).
B. Expert Report and Opinions
It was difficult to identify Capt. Orange’s specific relevant area of expertise and the actual
opinions he intended to offer in this case. After admitting that the procedures for handling cargo
are different in the different Chinese ports, Capt. Orange also admitted that most of his so-calledknowledge or experience was based on his general observations relating to the handling of cargo
being moved from dockside into the warehouse areas of different Chinese ports, a different
operation from the one in this case.
Although Capt. Orange’s expert report contains a section entitled “Opinion” consisting of
fifteen separate paragraphs, (See Exhibit 2, pp. 6-9), he testified that only two of these paragraphs
relate to Qingdao. (Ex. 1, p. 153, In. 11 —p. 161, In. 19). These paragraphs relate to the survey of
Bauxite in 2016, not alumina under detention, and did not involve the Dagang warehouse. (Ex. 1,
p. 161, In. 4-10). He was never in the warehouse in question before being retained in this case.
(Ex. 1, p. 95, In. 4-17).
During his deposition the nature and extent of his opinions became muddled, unclear and
often contradictory. While Capt. Orange opined that the changing of tags on stacks of cargo would
be classified as “theft” under Chinese law, (Ex. 2, p. 7, 4.5), he acknowledged that he is not a
Chinese law expert, not an attorney in any jurisdiction in the world and, in fact, had never taken a
single class on Chinese law. (Ex. 1, p. 108, In. 9 — p. 109, In. 6). This admission alone renders his
opinion on this issue inadmissible. This opinion only becomes more unclear as he later clarified
that, in his opinion, to constitute theft, there needed to be more action than a mere change of the
labels, such as the actual removal of the bags from the warehouse, of which there is no evidence.
(Ex. 1, p. 71, In. 1 = p. 72, In. 9).
Capt. Orange could not offer any specifics about the alleged theft. He lacked information
on who allegedly stole it, how it was stolen and when and where it was taken. Besides his
heretofore undisclosed site visit in which he was accompanied at the warehouse by Ms. Cherry
Zheng, an employee of Gerald’s who previously visited the port, he did not perform anyindependent investigation into the alleged loss of the cargo. He did not review any records or
conduct any interviews with the police or port personnel. (Ex. 1, p. 83, In. 1 — p. 84, In. 4).
Despite testifying about the operations and security measures at Chinese warehouses
generally, Capt. Orange later testified he was not actually giving expert evidence on these issues.
(Ex. 1, p. 167, In. 7-16). Later, Capt. Orange “clarified” that his opinions were not about Chinese
warehousing procedures but, instead, “what’s happened to Gerald’s material.” (/d.). Yet, while
on the site visit, he did not see any of Gerald’s cargo. (Ex. 1, p. 75, In. 17-24). The only thing he
knew about the cargo was it was not in the warehouse areas where Gerald directed him. At the
conclusion of his deposition his sole opinion was that he did not see Gerald’s cargo at the time of
his September 2019 visit to the port. (Ex. 1, p. 75, In. 17 — 24; p. 167, In. 7— 16). This is not expert
evidence. Gerald’s attempt to elevate Capt. Orange to the trusted position of an expert in order to
make his speculative testimony more credible to the jury should be rejected.
Cc Retention by Gerald
During the course of this litigation, tens of thousands of documents have been produced by
the parties and approximately twenty depositions have been conducted. Capt. Orange was retained
by Gerald in 2019 a few months before he issued his expert report. (Ex. 1, p. 82, In. 22-25). Capt.
Orange was provided with and relied on only five documents for his opinions: the two CSL reports,
Gerald’s 2016 claim report, Gerald’s Second Amended Complaint (which is no longer the
operative complaint), and inspection reports from Gerald (i.e., Ms. Zheng’s site visit reports). (Ex.
2, p. 1). Despite asking for “all relevant documentation,” this is all that Gerald provided him. (Ex.
1, p. 110, In. 10 ~ p. 113, In. 10). Capt. Orange did not review any of the depositions, including
those of Ms. Zheng, the CSL witnesses, or the CWT employees. In fact, he was unaware that these
depositions were even conducted. (Ex. 1, p. 109, In. 7 — p. 113, In. 10). He did not review thedocuments referred to in his own expert report, such as the purchase contract or warehouse
receipts. (Ex. 1, p. 114, In. 20 — p. 116, In. 13; purchase contract; p. 118, In. 6 — p. 120, In. 23,
warehouse receipt). When asked if this information would have been relevant or would have
changed his opinions, Capt. Orange was unable to answer because he didn’t know the substance
of the documents or depositions. (Ex. 1, p. 109, In. 7 — p. 113, In. 10; p. 133, In. 12 - p. 138, In.
7).
Despite having reviewed the CSL reports, Capt. Orange did not mention in his report or
consider in his opinions the Chinese government's detention of the alumina, which is specifically
referenced in the conclusions of the CSL report. (Ex. 1, p. 100, In. 1 — p. 103, In. 16). It is unclear
ifhe was even aware of it or the police investigation into the fraud relating to Gerald’s cargo. He
had no knowledge of the warehouse operator’s fraudulent activities resulting in his 23-year
imprisonment or his issuance of duplicate warehouse receipts. (Ex. 1, p. 127, In. 3 — p. 128, In.
18; p. 131, In. 8 — p. 133, In. 11). Capt. Orange was unable to comment if such information could
have been relevant to his investigation without seeing the full reports; this would have amounted
to hundreds of pages of documents. (Ex. 1, p. 133, In. 12 —p. 135, In. 2).
Capt. Orange’s lack of knowledge about the facts of the case and the lack of any
independent investigation on his part was also apparent from the background section of his report
which was nearly a verbatim recitation of Gerald’s Claim Report. His ignorance of the facts was
apparent. Some of the information contained in the background section of his report and Gerald’s
Claim Report was not only incorrect, but a simple review of the documents referred to would make
the error abundantly clear. For instance, Capt. Orange believed that the purchase contract was the
document governing title to the alumina and that it needed to be surrendered to the warehouse to
take possession of it. However, the purchase contract makes no such provision. He believed thatthe purchase contract was for 25,250 tons of alumina when the actual contract was for 43,000 tons.
He admitted that he had never seen the purchase contract. (He was also unaware of the disposition
of the other 17,000 tons of alumina). (Ex. 1, p. 114, In. 20—p. 118, In. 3). He later testified that
this information would have impacted his opinions on this case.
Q. You were shown the sales contract, which you noted in your background;
and the amount of that sales contract, 43,000 as opposed to 25 or 26 metric
tons, the number was larger. Would the fact that a transaction between the
two parties included lots in different warehouses have any impact on any
opinions you've rendered?
A. Yes.
Seemingly unhappy with this answer, Capt. Orange was asked later:
Q. In other words, they purchased from two different warehouses; does that
have any impact on any opinion you've rendered?
A. Yeah. The outstanding 16,000 could have been located anywhere separate,
and they could have been in Qingdao Port or in different locations.
(Ex. 1, p. 170, In. 8-23). Still dissatisfied, Gerald’s counsel again asked Capt. Orange if such
information would change his testimony about the Chinese warehouse security practices or the
changing of tags. (See Ex. | at p. 170, In. 24—p. 171, In. 9). While he answered in the negative,
Capt. Orange testified that he was not giving expert opinions on either of these topics. (Ex. 1, p.
166, In. 22 —p. 167, In. 16). What precisely Capt. Orange’s expert opinions are remains a mystery.
D. Capt. Orange’s September 2019 site visit to Qingdao Dagang Port.
During his deposition, Capt. Orange revealed he had visited the Dagang area at Qingdao
in September of 2019 accompanied by a Gerald employee, Ms. Cherry Zheng, and that photos
were taken. (Ex. 1, p. 47, In. 4-16). This was the first time Defendants were made aware of this
visit. Put another way, Gerald has failed to reveal relevant, discoverable information for nearly
three years. Capt. Orange stated multiple times during his deposition that his opinions were basedon his expertise and his never-before-disclosed visit to the port. Defendants were not only
surprised because Capt. Orange didn’t disclose his visit in his report, but also because Cherry
Zheng testified falsely about it, failing to disclose during her second deposition that she was at the
warehouse in September 2019, despite being specifically asked.' (Exhibit 3, p. 15, In. 9 — p. 16, In.
13). Capt. Orange failed to supplement his report to disclose his visit to the warehouse despite
relying on this visit as a basis for the opinions he presented in his trial testimony. His opinions are
so intertwined with his site visit, they cannot be separated. This failure to disclose relevant and
previously requested information should preclude Gerald from introducing Capt. Orange’s
deposition testimony.
During the site visit, Capt. Orange did not observe any of the Elysia cargo. He was
uncertain what areas of the warehouse he visited. He did not know whether the Elysia cargo had
ever been stored in that area. Nothing in the record indicates he even visited areas 64 and 65, the
locations where the Elysia cargo was reportedly once stored. In fact, his testimony indicates he
was not. (Ex. 1, p. 66, In. 16-24, testifying visiting area 69). Although he admitted taking photos
during his visit, no documents, pictures, or other evidence has been produced by Capt. Orange or
Ms. Zheng in relation to this Sept. 2019 visit. (Ex. 1, p. 66, In. 16 — p. 68, In. 9).
Capt. Orange’s failure to disclose the site visit, and Ms. Zheng’s false testimony about it,
is nothing short of an intentional and egregious violation of the discovery rules. A fair and even
playing field is the core concept of expert disclosure. Gerald’s chicanery should not be rewarded.
1 Gerald’s attempt to keep this September 2019 warehouse visit secret, and to surprise Defendants with it at trial is
made even more clear when one considers that Gerald moved to preclude Defendants from re-examining Cherry Zheng
after her first deposition on April 10, 2018 or, alternatively, to limit the scope of her deposition to her visit relating to
the earlier cargo auction. Gerald’s motion was denied. Despite this, Ms. Zheng testified falsely about her recent visits
to the terminal, failing to mention that she accompanied Capt. Orange to the terminal in September, 2019. (Ex. 3, p.
15, In. 9 — p. 16, In. 13).ARGUMENT
I. Capt. Orange does not meet the standards of the Connecticut Code of Evidence
Section 7-2. He does not offer scientific, technical or other specialized knowledge. His
testimony will not assist the trier of fact.
By his own admission, Capt. Orange does not meet the requirements of the Connecticut
Code of Evidence. He openly admits to having none of the expertise necessary to be considered
an expert on the issues. Further, his testimony does not aid the fact finder. Capt. Orange is not
providing an expert opinion; he is telling the jury what they should find.
A. The testimony is not scientific, technical, or specialized knowledge.
Section 7-2 through 7-4 of the Connecticut Code of Evidence govern the admissibility of
expert testimony. Specifically, Section 7-2 states:
A witness qualified as an expert by knowledge, skill, experience,
training, education or otherwise may testify in the form of an
opinion or otherwise concerning scientific, technical or other
specialized knowledge, if the testimony will assist the trier of fact in
understanding the evidence or in determining a fact in issue.
This imposes two conditions on the admissibility of expert testimony. First the witness
must be qualified. See State v. Wilson, 188 Conn. 715, 722 (1982). Whether a witness is
sufficiently qualified to testify as an expert depends on whether, the witness’ knowledge, skill,
experience, etc., his or her testimony will “assist” the trier of fact. See Weinstein v. Weinstein, 18
Conn. App. 622, 631, 561 A.2d 443 (1989); see also, e.g., State v. Douglas, 203 Conn. 445, 453,
525 A.2d 101 (1987) (“to be admissible, the proffered expert's knowledge must be directly
applicable to the matter specifically in issue”). Whether or not a witness is qualified is a
preliminary question for the court. Blanchard v. Bridgeport, 190 Conn. 798, 808, 463 A.2d 553
(1983).Capt. Orange admits that he is not offering scientific knowledge. (Ex. 1, p. 72, In. 10-25).
He further admits that his knowledge is not particularly specialized in any fields relevant to this
case. (/d.). Capt. Orange testified that his testimony “could be, [i-e., “might be”], classified as
technical.” (/d.). Yet he himself seems unsure of his area of expertise.
As discussed later herein, the specifics of Capt. Orange’s purported expert opinions are
difficult to decipher. But if one can decipher them, Capt. Orange has no qualifications to testify
about the technicalities of warehousing on which he is supposedly “opining”. Capt. Orange does
not have any qualifications in the area of cargo theft, nor does he have any specialized or technical
knowledge in the area of warehouse security. (See Ex. 1 p. 90, In. 23 — p. 96, In. 11). Capt. Orange
can offer no specific insights into how this alleged theft occurred. Although he sought to opine
about what constitutes theft under Chinese law, (See Ex. 2, Sec. 4, | 5), Capt. Orange is not an
attorney anywhere in the world and has never taken a course on Chinese law. (Ex. 1, p. 108, In.
21—p. 109, In. 6). Capt. Orange testified that “theft is theft.” (Ex. 1, p. 172, In. 14—In. 21). If,
as he proposes, everyone knows “theft is theft,” an expert is not needed to render this opinion.
Ultimately, Capt. Orange testified that his opinions were not about theft, warehousing
procedures, or security measures, only what had happened to Gerald’s cargo. (Ex. 1, p. 167, In. 7-
16). If this is, indeed, his opinion, this is not the scientific, technical, or specialized knowledge as
the rules contemplate.
B. Capt. Orange’s testimony will not assist the jury. The jury can draw its own
conclusion about the fate of Gerald’s cargo.
To be admissible, the proposed expert testimony must assist the trier of fact in
understanding the evidence or determining a fact in issue. See, e.g., State v. Hasan, 205 Conn.
485, 488, 534 A.2d 877 (1987). This means that the scientific, technical, or specialized knowledge
upon which the expert's testimony is based must go beyond common knowledge andcomprehension of the average juror. See State v. George, 194 Conn. 361, 373,481 A.2d 1068
(1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 105 L. Ed. 2d 968 (1985). By his own
admissions, Capt. Orange’s testimony satisfies none of these requirements.
Expert testimony is admissible only when it goes beyond the field of ordinary knowledge
and experience of the trier of fact. When the subject of the testimony is within the jury’s
understanding, the testimony will not aid them and thus should not be admitted. State v. George,
194 Conn. 361, 373, 481 A.2d 1068 (1984). Where the inferences elicited from the expert are so
obvious that “they could as readily be drawn by the jury... the proffered testimony was merely a
superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay
persons were equally capable of drawing from the evidence.” Jd.
After much confusion about the so-called specific scientific, technical or specialized
knowledge Capt. Orange was seeking to import, Capt. Orange testified that his opinions relate to
“what has happened to Gerald’s materials” as opposed to “the security practices” or “alleged theft
of the cargo.” (Ex. 1, p. 166, In. 22 — p. 167, In. 16). The jury is capable of considering the
evidence and drawing its own conclusion as to what has happened to Gerald’s material. Capt.
Orange is usurping its role.
Cc. Capt. Orange’s opinions are based on insufficient and incompetent evidence
rendering it inadmissible.
The essential facts on which an expert opinion is based are an important consideration in
determining the admissibility of his opinion. See Berndston v. Annino, 177 Conn. 41, 46, 411 A.2d
36 (1979); Sears v. Curtis, 147 Conn. 311, 314-15, 160 A.2d 742 (1960). “Where the factual basis
of an opinion is challenged the question before the court is whether the uncertainties in the essential
facts on which the opinion is predicated are such as to make an opinion based on them without
substantial value.” State v. Asherman, 193 Conn. 695, 716-17, 478 A.2d 227 (1984). That
10question is one of fact for the trial court. Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d
86 (1985).
Capt. Orange’s testimony should still be stricken since it is based upon clearly insufficient
evidence. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73, 77 (Conn. 1964);
Sears v. Curtis, 147 Conn. 311, 314 (1960). “The essential facts on which an expert opinion is
based are an important consideration in determining the admissibility of the expert's opinion.”
Fortin v. Hartford Underwriters Ins. Co., No. HHDX04CV034034596S, 2009 WL 659260, at *3
(Conn. Super. Ct. Feb. 19, 2009) (citing Glaser v. Pullman & Comiley, LLC, 88 Conn. App. 615,
624, 871 A.2d 392 (2005)). The question is whether “the missing fact is such an essential part of
the factual foundation for the opinion that its absence would rob the opinion of its persuasive
force.” Fortin, 2009 WL 659260, at *3 (citing State v. Asherman, 193 Conn. 695, 717, 478 A.2d
227 (1984). Where the expert witness' testimony fails to establish that he has an adequate factual
foundation to support his opinions, an order precluding the testimony is warranted. See DeBartolo
y. Daimler Chrysler Corporation, Superior Court, judicial district of New Haven at New Haven,
Complex Litigation Docket, Docket No. X10 NNH CV 03 0482725 (December 22, 2005, Munro,
J.) (40 Conn. L. Rptr. 503). Here, Capt. Orange’s testimony and expert opinions were based on a
scant selection of documents cherry-picked by Gerald, rendering his testimony inadmissible.
Despite asking for “all relevant documents,” Capt. Orange was provided with only five.
(Ex. 1, p. 110, In. 10 — p. 113, In. 10; See Exhibit 2). Capt. Orange did not review any of the
depositions taken in this matter, including those of Cherry Zheng, the different CWT witnesses,
the CSL employees and surveyors, nor was he aware these depositions were even conducted. (Ex.
1, p. 109, In. 7 — p. 113, In. 10). He did not review the documents referred to in his own expert
report or any of the other operative documents, such as the purchase contract, the Rukudan or the
11CWT warehouse receipts. (Ex. 1, p. 114, In. 20 — p. 116, In. 13; purchase contract; p. 118, In. 6 —
p. 120, In. 23, warehouse receipt). He was unaware of the fraud investigation which resulted in
the alumina’s detention, the police verification that the Rukudan was a fake, the unsuccessful CWT
litigation (filed on Gerald’s behalf) to overturn that verification, the guilty plea of the fraudster,
the various Chinese Court decisions and the recent auction of the alumina, including the subject
material, by the Chinese Court. When asked if this information would have changed his opinions,
Capt. Orange was either unable to answer because he did not know the substance of these
documents or depositions, or he admitted that such information could change his opinions. (Ex.
1, p. 109, In. 7—p. 113, In. 10; p. 133, In. 12—p. 138, In. 7; Ex. 1, p. 170, In. 8-23). Gerald cannot
spoon feed their expert only the evidence they want him to consider while leaving out the oceans
of evidence which undermine their theory of the case.
Il. Even if Capt. Orange could qualify as an expert, his testimony is speculative.
No opinion, whether lay or expert, can be based on conjecture or surmise. Stephanofsky v.
Hill, 136 Conn. 379, 383-385 (1950). Opinions and the conclusions drawn by experts must be
reasonably probable, not merely possible. Witkowski v. Goldberg, 155 Conn. 693, 696 (1932);
Madore v. New Departure Manufacturing Co., 104 Conn. 709, 714 (1926). TAIT'S HANDBOOK
OF CONNECTICUT EVIDENCE, § 7.5.5 (3d ed.2001). “[E]xpert testimony that ignores existing
data and is based on speculation is inadmissible.” JMJ Enterprises, Inc. v. Via Veneto Italian Ice,
Inc., 1998 WL 17588, *6 (E.D.Pa. April 15, 1998) (interpreting Federal Rule of Evidence 702,
after which Connecticut Code of Evidence Section 7-2 is modeled). Connecticut law requires that
the court exclude evidence which is speculative. K&V Sci. Co., 2002 WL 31662326, at *3.
Based on the five Gerald-selected documents and his undisclosed site visit in Sept. 2019,
Capt. Orange opines that Gerald’s cargo was stolen. (Ex. 1, p. 75, In. 13 — p. 76, In. 5). As
12discussed in detail in Section III, any opinions based on Capt. Orange’s site visit are beyond the
scope of his disclosure and should be stricken. However, assuming arguendo that he is permitted
to rely on his site visit as a basis to opine, there are no opinions which can be drawn from it which
are not entirely speculative.
There was no requirement that Gerald’s cargo be stored in any specific area of the
warehouse. (Ex. 1, p. 78, In. 8 ~— p. 79, In. 15; See Exhibit 4, Orange Ex. F, Warehouse Receipt,
describes area in general). Because this cargo was subject to two Chinese court orders of detention
or injunction, what steps were taken to protect the cargo during the investigation is anyone’s guess.
But, Capt. Orange was unaware of any of these details. (Ex. 1, p. 102, In. 2 — p. 103, In. 16).
Instead, he was taken during his previously undisclosed site visit to unknown warehouse areas.
(Ex. 1, p. 66, In. 20 — 21, believing it to be Area 69; Ex. 1, p. 67, In. 24 — p. 68, In. 14, unable to
specifically recall the area number). He did not know where the alumina had been stored at any
time, or where else in the enormous complex alumina was stored. He did not conduct any
independent investigation. He did not interview the security authorities which detained the cargo
or the port personnel engaged in port security or cargo handling. He did not seek to obtain any
other port documents which would establish whether the cargo had been removed from the
terminal. (Ex. 1, p. 82, In. 5 — p. 84, In. 4; p. 106, In. 8 - 21). Since he has no expertise in the
area, his testimony is speculative, at best.
Capt. Orange later confirmed that he was not opining that the cargo was stolen, simply that
it was not in the area of the port where Gerald’s witness directed him. (Ex. 1, p. 104, In. 7 — p.
107, In. 25). This is evidence of nothing, and certainly not expert-worthy.
13Il. Gerald violated its ongoing discovery obligation by failing to disclose Capt. Orange’s
September 2019 site visit. The site visit is outside of his expert disclosure.
During his trial deposition, Capt. Orange disclosed for the first time that he visited Qingdao
Dagang in September 2019 with Ms. Cherry Zheng. This visit came a month after he authored his
expert report. Capt. Orange never supplemented his report. Nothing in Plaintiffs’ disclosures or
the expert report even allude to Capt. Orange’s site visit.
Even more disturbing is Cherry Zheng’s failure to disclose this September 2019 warehouse
visit during her April 14, 2021 deposition. Ms. Zheng was specifically asked when she visited the
port since her April 2018 deposition. Ms. Zheng testified as follows:
So let me specify. So January 2019 I went to check out the cargo. And for the
August 2019 I went there because there was a court-organized auction. So I went
there to check out the on-site sample that the court showed us.
(Exhibit 3, p. 16, In. 8 — 13).
Ms. Zheng avoided entirely any mention of her visit to the warehouse in September 2019 with
Capt. Orange, a visit on which Capt. Orange now seeks to rely.
Connecticut Practice Book Sec. 13-4 governs expert testimony and disclosures.
[It] requires any plaintiff expecting to call an expert witness at trial
[to] disclose the name of that expert, the subject matter on which the
expert is expected to testify, the substance of the facts and opinions
to which the expert is expected to testify, and a summary of the
grounds for each opinion, to all other parties within a reasonable
time prior to trial.
Somers Mill Assoes., Inc. v. Fuss & O'Neill, Inc., No. X03CV000503944, 2002 WL 467910, at *5
(Conn. Super. Ct. Mar. 5, 2002), aff'd sub nom. Ahearn v. Fuss & O'Neill, Inc., 78 Conn. App.
202, 826 A.2d 1224 (2003) (citing Conn. Prac. Book Sec. 13-4).
Connecticut Rules of the Superior Court Section 13-4 requires disclosure of “the substance
of the grounds for each such expert opinion.” Gerald failed to supplement Capt. Orange’s report
14after his Sept. 2019 visit to Qingdao Dagang Port. All of the opinions given during his deposition
were based, at least in part, on his undisclosed site visit. This failure to disclose renders his
opinions inadmissible.
The Connecticut Supreme Court has observed that expert disclosure is intended to avoid
just this kind of surprise. Doyle v. Kamm, 133 Conn. App. 25, 31-32, 35 A.3d 308, 314 (2012)
(citing Wexler v. DeMaio, “to assist the defendant in the preparation of his case and to eliminate
unfair surprise by furnishing the defendant with the essential elements of a plaintiff's claim.”
Wexler v. DeMaio, 280 Conn. 168, 188, 905 A.2d 1196 (2006)). A key element to this inquiry is
whether the information constitutes new and distinct subject matter as opposed to being
information reasonably contemplated by the disclosure. Doyle, 133 Conn. App. at 31-32. Not
only was this site visit not contemplated by the disclosure, Cherry Zheng specifically covered it
up.
When experts do not disclose information in their expert report, they are unable to offer
opinions at trial based on that evidence. See Somers Mill Assocs., Inc. v. Fuss & O'Neill, Inc., No.
X03CV000503944, 2002 WL 451291, at *7 (Conn. Super. Ct. Feb. 27, 2002), affd sub nom.
Ahearn vy. Fuss & O'Neill, Inc., 78 Conn. App. 202, 826 A.2d 1224 (2003). Section 13-4 “is
intended to furnish a defendant with the details of a plaintiff's reliance on expert testimony in order
to assist him with the preparation of his case.” Ciarlelli v. Romeo, 46 Conn. App. 277, 280-81,
699 A.2d 217, 219 (1997) (citing former version of Practice Book). A trial court may, in the
exercise of its discretion, impose sanctions on a party for failure to comply with the rules of
disclosure. /d. Such sanction can include the exclusion of expert testimony at trial. Jd. (citing
Practice Book). Section 13-4 limits trial testimony to an expert’s pretrial disclosure. Somers Mill
Assocs., Inc. v. Fuss & O'Neill, Inc., No. X03CV000503944, 2002 WL 467910, at *5 (Conn.
15
I eR 2 SESS SESS SSS ESS SOE NSSuper. Ct. Mar. 5, 2002), affd sub nom. Ahearn y. Fuss & O'Neill, Inc., 78 Conn. App. 202, 826
A.2d 1224 (2003).
Capt. Orange testified that, based on “the fact that there was no cargo present to be seen”
at the September 2019 visit, Gerald’s cargo was stolen. (Ex. 1, p. 75, In. 13 - 24). Capt. Orange
admits that his trial testimony was inextricably linked to information not disclosed in his expert
disclosure or report. This alone should make his testimony inadmissible.
Gerald should not be benefitted by blind siding the Defendants with new information
during the trial testimony of an expert witness, especially with information known to Gerald for
over three years. At the very least, Gerald should have amended Capt. Orange’s expert report and
produced the photos taken at the September 2019 site visit.
Capt. Orange’s opinions, where decipherable, are so intwined with his visit, his testimony
is unsalvageable. The deposition is inadmissible.
CONCLUSION
For the foregoing reasons, Defendants ask that this Court grant their motion in limine to
exclude all of the trial testimony of Capt. Orange.
Dated: September 21, 2022
Southport, CT
The Defendants,
By: — /s/Thomas L. Tisdale
Thomas L. Tisdale (101741)
Tisdale & Nast Law Offices, LLC
10 Spruce Street
Southport, CT 06890
Tel.: 203-254-8474
Fax: 203-254-1641
tisdale@tisdale-law.com
16CERTIFICATION OF SERVICE
Thereby certify that on this 21st day of September 2022, a copy of the foregoing pleading
was emailed to the following counsel of record, upon consent, pursuant to Connecticut Practice
Book §10-13:
pfl@implaw.net
SRW@Implaw.net
Patrick F. Lennon
Steven R. Winters
Lennon, Murphy & Phillips, LLC
1599 Post Road East
Westport, CY 06880
jberringer@reedsmith.com
acrawford@reedsmith.com
John B. Berringer
Anthony B. Crawford
Reed Smith, LLP
599 Lexington Avenue
New York, NY 10022
/s/Thomas L. Tisdale
Thomas L. Tisdale
17Exhibit 1An UO B® WN KB
SUPERIOR COURT
JUDICIAL DISTRICT OF FAIRFIELD AT STAMFORD
GERALD METALS, LLC and GERALD METALS Sarl,
Plaintiffs,
-against-
CERTAIN UNDERWRITERS SUBSCRIBING TO
MARINE CARGO INSURANCE POLICIES
NOs.: BO7853PC1309890000
BO753PC1412113000
B1353DC1501253000,
Defendants.
Docket No.: FST-CV17-6031032-S
HELD REMOTELY VIA ZOOM VIDEOCONFERENCE
July 21st, 2022
7:05 a.m.
DEPOSITION of CAPTAIN ROLAND ORANGE, an |
Expert Witness herein, taken at the above-mentioned
time and place, before Dana Daufeldt, CSR, RPR, and
a Notary Public of the State of New York, pursuant
to Agreement and Stipulations between Counsel.
Page 1
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1 bd Direct - Roland Orange
5 APPEARANCES: | 2. Roland Orange in the matter of Gerald
4. REED SMITH, LLP 3 Metals, LLC., et al., versus Certain |
Attorneys for Plaintiffs 4 — Underwriting Subscribing to Marine Cargo
5 599 Lexington Avenue 5 Insurance Policies. Filed in the Superior
5 nan New York 10022 6 — Court, Judicial District of Fairfield at
BY: ANTHONY B. CRAWFORD, ESQ. 7 Stamford; Case Number FST-CV17-6031032-S,
7 JOHN B. BERRINGER, ESQ. 8 My name is Rocco Mercurio and the
8 9 court reporter is Dana Daufeldt, and we are
9 10 from vertex.
10 TISDALE & NAST LAW OFFICES, LLC 11 Will counsel please introduce
Attorneys for Defendants
W 10 Spruce Street 12 themselves and state who you represent for
Southport, Connecticut 06890 13 the record.
12 BY: THOMAS TISDALE, ESQ. 14 MR. BERRINGER: John Berringer
JAMISON JEDZINIAK, ESQ. «
B 15 representing Gerald Metals.
14 16 MR. CRAWFORD: Anthony Crawford
15 17 representing Gerald Metals.
16 18 MR. TISDALE: Thomas Tinsdale
ie 19 representing the Underwriter Defendants.
19 ALSO PRESENT: 20 MR. JEDZINIAK: Jamison Jedziniak |
20 JAKE FRANKS, Veritext Concierge 21 representing the Underwriter Defendants.
21 ROCCO MERCURIO, Veritext Videographer 22 VIDEOGRAPHER: The court reporter will
5 23. now swear in the witness and we can
24 24 proceed.
25 25 ROLAND ORANGE,
Page 3 Page 5
1 Direct - Roland Orange 1 Direct - Roland Orange
2 MR. BERRINGER: As for the 2 having been first duly sworn by a Notary Public of
3 stipulations, objections except as to form 3 the State of New York, was examined and testified as
4 are preserved; he can read and sign without 4 follows:
5 -- whatever that one is, the read and sign. 5 DIRECT EXAMINATION BY
6 MR. TISDALE: Okay. | 6 MR. BERRINGER:
7 MR. BERRINGER: I'm not sure that 7 Q. Mr. Orange, could you give us your
8 there's anything else we need to worry 8 current address and employer?
9 — about now. I'd just note that this is | 9 A. Current address, yeah? I live in
10 pursuant to the agreement of the parties, | 10 Greencourt 2 on Biyun Road, Building 16,
11 and that it is being used in part as trial | 11 Apartment 401, in Pudong New Area, Shanghai.
12 testimony. | 12. Q. And your employer? Can you identify
13 VIDEOGRAPHER: Good moming. We are | 13 your current employer?
14 now going on the record. Today is | 14 A. My present employer is Solis Marine
15 Thursday, July 21, 2022, and the time is | 15 Consultants. They have their head office in
16 approximately 7:05. Please note that the | 16 London, and J am in the subsidiary office here
17 deposition is being conducted virtually. | 17 in Shanghai.
18 The quality of the recording depends on the 18 Q. Just to let you know what the first
19 quality of the camera, internet connections | 19 half-hour or so is going to involve, I would |
20 of the participants. What is heard and | 20 like to take you through your educational and
21 seen on this screen is what will be (21 employment history. Maybe before we start
22 recorded. Audio and video recording will 22 posing questions, can we mark as Plaintiff's
23 continue to take place unless all parties (23 Exhibit 1 Captain Roland's expert report along
24 ~~ agree to go off. 24 with the two Exhibits to that report.
25 This is the remote video deposition of (25
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Direct - Roland Orange
A. Yeah, yeah.
Q. And the manager at that Qingdao office
accompanied you on the visit, correct?
A. Yeah, that's correct.
Q. Was his presence of assistance in
gaining access to the site?
A. Yeah. I mean, that was the main |
reason for contacting him and having his use.
He had access -- because he is a regular
surveyor in Qingdao, he has an access card. So |
we were allowed to drive straight into the port
and straight to the bonded storage area.
Q. What did you observe there?
MR. TISDALE: Note my objection to
anything not included in his expert
disclosure.
MR. BERRINGER: You can answer.
A. Yeah, so we got to the bonded storage
area, and we saw all the storage of the products
there that were covered with tarpaulins, secured
with rope lashing, and each bundle was marked |
with a red cloth, just one single red piece of
cloth; and we witnessed bags being brought into
Direct - Roland Orange 1
bags, but there was no paperwork from the port 2
to say that it had been tallied and counted 3
properly. 4
Q. You say, "The security gate workers 5
had no paperwork to tally the removed cargo and 6
would expect this to be handled by the tallyman 7
at the shipside." 8
A. Yeah. 9
Q. You weren't taking this material to be 10
shipped, correct? 11
A. Yeah, the people at the gate just 12
waved the truck through with their arm. They 13
would have seen these surveyors before, they 14
would know them, surveyors without access cards 15
to the port. 16
Q. Once again, the port might have 17
records on the amount of Bauxite that was at 18
Qingdao that was deposited in Qingdao, but they | 19
wouldn't have any records of the amount of 20
bagged cargo that was removed, correct? 21
MR. TISDALE: Object to the form of 22
the question. 23
A. Yes, that's correct. | 24
MR. TISDALE: Speculation. 25
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Direct - Roland Orange 1
Q. Say that again, Captain Orange. | 2
A. Yeah, that would be correct. ; 3
Q. Did you ever have occasion to visit 4
5 Qingdao in connection with Gerald's materials? | 5
A. Yes. 1 was asked to go in September 6
2019 to go to the storage area within Qingdao 7
Port. | 8
Q. And did you, in fact, go to the | 9
storage area of the Qingdao Port? /10
A. Yes, I did, yeah. al
Q. Who accompanied you on that visit? 12
A. Imet Ms, Cherry Zheng at the hotel, 2B
and Solis has an office in Qingdao; and our 14
office manager from Qingdao drove us to the 15
location within the port. 116
Q. Okay. So Solis maintains an office in | 17
Qingdao? (18
A. Yeah. More of a collaboration I would | 19
say than an actual Solis -- they work for us and | 20
they are based in Qingdao and they have an 21
office there, but they also do their own work 22
privately. 23
Q. Okay. So it is a business
arrangement?
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Direct - Roland Orange
other to form the pyramid shapes.
Q. Those cloth tags, did they have
writing on them?
A. Yes. They appeared to have a ship's
name and the location of the pyramid-shaped
storage and an estimation of a number that
pertained to the number of bags that were
inside.
Q. Do you recall whether any of the cloth
tags indicated that the material came from the
Elysia?
A. No, not at all. We went to the |
locations that were supposedly marked as where
the cargo had been stowed, and there was no tags
with Elysia marked on any.
Q. Based upon your visit in September of
2019, would it have been possible for you to
either write over those tags or replace those
tags with tags that you brought to the site
yourself?
MR. TISDALE: Object to the form of
the question.
MR. BERRINGER: You can answer.
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212-490-34301 Cross - Roland Orange
2 much the same in most port areas in China. So
3 if] attended ten times in a year in one area,
4 say Shanghai, I can apply for a permanent pass,
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1 Cross - Roland Orange
2 particular area in the yard; is that right?
3. A. Yes. She directed us to the bonded
4 storage area.
copies to John and Anthony.
Q. And did you make a report of your
visit?
A. I didn't, no.
Q. Did you correspond with anyone about
what you observed on your visit?
A. I think I made email correspondence
about it, yes.
Q. And that's with whom?
A. With John and Anthony.
Q. Did you take any notes while you were
there?
A. I don't think I took notes, no. I
just took photographs and relied upon the
photograph evidence.
21 Q. Were you ever asked to supplement your
22 disclosure here, your expert disclosure?
23. A. No.
24 Q. When you -- I think you mentioned that
hile -- if 1 get it right, Cherry took you toa
5 and that’s what Jason has. 5 Q. And you don't, as you sit here today,
6 Q. So Jason has the permanent pass which 6 don't remember what number area that was?
7 allows him access onto the terminal, correct? 7 A. Icould look at a photograph. I took
8 AL Yes. 8 photographs of the number markings. | can't
9 Q. And you were in his company, correct? | 9 recollect it at the moment.
10. A. Yeah. /10 Q. How many different areas did you go
11 Q. And you believe, don't you, that the | 11 to, fenced in areas?
12 reason you were granted access to the terminal 12 A. Two. We went to the one on the right
13 was because you were with Jason who had a pass, | 13 and the one on the left as you enter the
14 correct? 14 facility.
15 A. Yes. 15 Q. Did you see any areas -- were there
16 Q. What warehouse area did you go to when 16 other areas in the warehouse, area generally,
17 you finally entered the Dagang warehouse? 17 that you could see stacked cargo covered by
18 A. We went straight to the bonded | 18 tarpaulins?
19 warehouse that was directed by Ms. Cherry Zheng. | 19 A. Yeah. We walked pretty much around
20 = Q. What area was that? | 20 the full area looking at the various piles.
21 A, 691 think it was called. 21 Q. Not just in the two areas where Cherry
22. Q. And what are you looking at? 22 took you, but generally in the area, in the
23. A. Sorry, that's my report. Just 23 Dagang warehouse area, did you observe other
24 referring to that, I'm sorry. 24 stacks of cargoes covered by tarpaulins?
25 Q. When you were there, did you take any 25 A. Yeah. Numerous stacks.
Page 67 / Page 69
1 Cross - Roland Orange 1 Cross - Roland Orange
2 notes or take any pictures? 2 Q. Numerous stacks. Did you ever learn
3. A. Yeah, I took photographs, yeah. 3 what was under those stacks or in those stacks?
4 Q. Where are those photographs? 4 A. No. There was no facility to take off
5 A. Ihave them on my computer and I sent | 5 the tarpaulins.
Q. Did you enter into any of these other
7 yards or these other areas?
8 A. We walked around the full area of that
9 bonded storage area.
Q. And did you look at the tags on those
other stacks?
A. As we went past, we looked at the
markings on them, yes.
Q. How many different stacks did you look
15 at?
;16 A. Numerous. I can't recollect an exact
| 17 number, but we would walk down -- there was the
18 main road, then there were off-shoots after
19 every stackage; and we walked down those and
20 went and looked at people unloading trucks and
21 making new stacks.
22. Q. While you were there, you were
23 watching cargo operations under way so new
24 stacks were being made, right?
25 A. Storage of the stacks from the trucks,
18 (Pages 66 - 69)
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1 Cross - Roland Orange
2 yeah, Trucks were coming in all the time, and
3 they were being unloaded and stacked.
4 Q. Just so we are all talking about the
5 same thing here, the bags that you are talking
| 6 about are sizable bags, like a one-ton bag,
7 correct?
8 A. Yeah, the folks that we talked to seem
9 to indicate that it could hold the capacity of
10 1.5 tons.
11 Q. What kind of equipment is necessary to
12 unload the truck?
13. A. They would be using a crane, a crane
14 on the truck.
15 Q. And in order to load the truck, you
16 would need a crane, right?
17 A. Tobserved them when J was in Qingdao |
18 the following month on an unrelated matter, and
19 they were like forklift trucks. They would lift
20 the bags from the storage area under the chutes
21 then put them on the trucks.
22 Q. Okay. But you would need some form of
23 heavy equipment to load the bag onto a truck and
24 to unload a truck into a stack, right?
25 A. Yeah.
Page 71
Cross - Roland Orange |
Q. And to remove it from a high stack,
you'd also need a crane because you would have,
to remove from the top, right?
A. Yes.
Q. I think you mentioned you and Cherry
took a label off one of the stacks in the area
8 where Gerald's cargo was located; am ] right?
9 A. It was actually me and Jason that took
10 the tag off. |
1 Q. You are not saying that you were there |
12 for committed theft; are you? |
13. A. I put the tag back. It was just i
14 purely to show how easily the tag could be |
| 15 removed. |
/16 Q. Right. But your opinion is not just |
| 17 that you take -- if the tag is changed that
|18 that's a theft, correct?
1
2
3
4 te
5
6
7
19 MR. BERRINGER: Object to the form of
20 the question.
21 Q. Doesn't more need to be done, like it |
|22 being removed from the pier and taken off of th
23 terminal, absconded with to be a theft?
24 A. Yes, it has to be removed, yeah.
25 Q. Even if you and Jason took the tag or
(2
Page 72
1 Cross - Roland Orange
| 2 changed the tag, you would still have to do
3 something else before, in your view, it would bel
| 4 a theft, correct?
MR. BERRINGER: Object to the form of
the question.
MR. TISDALE: You can answer.
A. Yes, it would have to be removed, |
9 yeah. |
10. Q. Let's talk generally here. Experts
11 are permitted to give opinion testimony in
12 courts on matters of scientific, technical, or |
13 specialized knowledge. Which of those are you,
14 proposing constitutes the testimony you're
15 giving in this case; is it scientific?
16 A. It's not scientific, no.
17 Q. Is it technical?
18 A. It could be classified as technical,
19 and also experience from visiting these
20 facilities.
21 Q. So is it your belief that it is
22 considered specialized knowledge?
23 A. I don't think it's particularly
24 specialized. I have general knowledge of the
25 operations and access to ports.
Q. Right. I think you said you were
3 generally knowledge about that, generally
| 4 knowledgeable about documentation, but that you
| 5 don't have any specific knowledge in these
| 6 fields; is that fair?
|
1 Cross - Roland Orange
|
7 MR. BERRINGER: Object to the form of
8 the question.
(9 MR. TISDALE: You can answer.
10 Mr. Berringer is going to object from
I time to time to my questions. He is just
12 preserving his objection for trial, but you
13 still need to answer the question.
14 Tf there is an issue and he doesn't |
15 want you to answer it, you can be sure he |
16 will let you know, |
(17 A. I would say it is reasonably specific |
| 18 related to access to ports.
19 Q. You have never worked for a Chinese
20 port; is that correct?
21 A. Correct.
22 Q. You have never participated -- did you
23 ever participate in any of the training of
24 Chinese port personnel? |
25
19 (Pages 70 - 73)
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Cross - Roland Orange 1
Q. Did you ever write any of the 2
procedural manuals which may or may not be in 3
place in different ports regarding care of cargo (4
within that port? 5
A. No. | 6
Q._ Did you ever read one? 71
A. Ihave read the warning requirements 8
and the advisories as you go into ports, yeah. | 9
Q. I'm sony, say that again. 110
A. Ihave read the warnings and a
precautions as you enter ports in China. 12
Q. Did you ever read any books, manuals, 13
which talk about the security requirements to be 14
exercised in a Chinese port? 15
A. Similar to the rest of the world with 16
the ISPS code. \17
Q. My question was: Did you read one 18
that was prepared for use in a Chinese port? 19
A. Not specifically for a Chinese port. 20
Q. Now, there are two places in your )21
report where you use the word "opinion." One is | 22
in Paragraph 4.4 where you say, "In my opinion, | 23
Gerald did not do anything wrong and neither did | 24
then there is Paragraph 4.15. Would you
Page 15
Cross - Roland Orange
just turn to Paragraph 4.15 for me?
MR. BERRINGER: You are also ignorin;
Paragraph 4 which states "opinion" and
which I read to include all of the
statements in Section 4.
MR. TISDALE: Okay. Your objection is’
noted.
MR. BERRINGER: I know you are not
trying to mischaracterize the report, but
that's the way I read it.
MR. TISDALE: Mm-hmm.
Q. Captain Orange, are you rendering an
opinion here that Gerald's cargo was stolen?
A. From the information I received,
that's my opinion, yes.
Q. So just based upon the information you
received, it's your opinion that the cargo was
stolen?
A. And the fact that there was no cargo
presented to be seen. 21
Q. Meaning when you went in September of 22
Pees eee eee
SSCRIAIDAURHBNHNH-SeCMmIDAUVEWNHE
2019, you didn't see any cargo? 123
A. Yes. (24
that visit to the warehouse | 25
Other th
Page 76
Cross - Roland Orange |
in September of 2019, you did no independent
investigation into this alleged theft of cargo
off the Qingdao Pier, correct?
A. Yes.
Q. Am I correct in saying that -- if this
cargo was stolen, when was it stolen?
MR. BERRINGER: Beyond the scope of |
his expert report.
That would be speculation. I can't --
You don't know?
I d
Preview
DOCKET NO. FST-CV17-6031032-S : SUPERIOR COURT GERALD METALS, LLC and : GERALD METALS SARL : JD OF STAMFORD : AT STAMFORD Plaintiffs, v. CERTAIN UNDERWRITERS SUBSCRIBING TO MARINE CARGO INSURANCE POLICIES NOs. B07853PC1309890000, B0753PC1412113000, and B1353DC 1501253000, : Defendants : SEPTEMBER 21, 2022 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT CAPTAIN ROLAND ORANGE Defendants, Certain Underwriters Subscribing to Marine Cargo Insurance Policies Nos. B07853PC1309890000, B0753PC1412113000 and B1353DC1501253000 (‘“Defendants” or “Underwriters”), through their counsel Tisdale & Nast Law Offices, LLC submit this motion in limine to exclude the trial testimony of Plaintiffs’ expert Captain Roland Orange. On July 21, 2022, the deposition of Captain Roland Orange (“Capt. Orange”) was conducted by Plaintiffs in lieu of his personal attendance at trial. Plaintiffs should be precluded from introducing any part of Capt. Orange’s testimony at trial. Capt. Orange does not meet the threshold requirements necessary to allow him to testify as an expert in the areas in which he seeks to opine. Capt. Orange is usurping the function of the jury, essentially telling the jury what they should find. Capt. Orange has given testimony outside the scope of his expert disclosure, which further highlights Plaintiffs’ violation of their ongoing discovery obligations. Unlike many other motions in limine, no guesswork is required to determine what Capt. Orange will say at trial. The deposition transcript is his trial testimony.FACTUAL BACKGROUND A. Captain Roland Orange’s Background and Qualifications. Capt. Orange is the General Manager of Solis Marine Consultants. Prior to his work at Solis, Capt. Orange spent over 22 years of his career sailing onboard chemical and gas tankers. His last experience onboard dry bulk carriers was over twenty years ago, and never in China. (Deposition of Capt. Orange, p. 84, In. 1 — p. 85 In. 9; The deposition of Capt. Orange shall hereafter be referred to as Exhibit 1). Since 2009 Capt. Orange has been in the consulting business. None of his consulting experience qualifies him to provide the ambiguous opinions for which he has been proffered. In fact, he admitted that none of the experience set forth in his CV was relevant to the opinions he is being asked to offer. (Ex. 1, p. 90, In. 10 — p. 95, In. 8). After stating that experience at one Chinese port is not the same experience at any other Chinese ports because the rules are not uniform for all ports, Capt. Orange admitted that he never before investigated a cargo theft at Qingdao Port, and was never involved in a fraud investigation by the Qingdao Police. (Ex. 1, p. 93, In. 15 — p. 95, In. 17; p. 142, In. 11 — p. 144, In. 8). In fact, he had never been in the Qingdao Dagang warehouse until 2019. Capt. Orange has only previously testified in arbitration proceedings as a navigation or chemical carrier expert. He has never been qualified to testify in any court proceedings nor has he ever testified as an expert in a case involving a warehouse loss. In fact, Capt. Orange specifically testified that he does not have any expertise in the area in which he was testifying in this case. (Ex. 1, p. 72, In. 10 —p. 74, In. 20; p. 90, In. 23 — p. 96, In. 16). B. Expert Report and Opinions It was difficult to identify Capt. Orange’s specific relevant area of expertise and the actual opinions he intended to offer in this case. After admitting that the procedures for handling cargo are different in the different Chinese ports, Capt. Orange also admitted that most of his so-calledknowledge or experience was based on his general observations relating to the handling of cargo being moved from dockside into the warehouse areas of different Chinese ports, a different operation from the one in this case. Although Capt. Orange’s expert report contains a section entitled “Opinion” consisting of fifteen separate paragraphs, (See Exhibit 2, pp. 6-9), he testified that only two of these paragraphs relate to Qingdao. (Ex. 1, p. 153, In. 11 —p. 161, In. 19). These paragraphs relate to the survey of Bauxite in 2016, not alumina under detention, and did not involve the Dagang warehouse. (Ex. 1, p. 161, In. 4-10). He was never in the warehouse in question before being retained in this case. (Ex. 1, p. 95, In. 4-17). During his deposition the nature and extent of his opinions became muddled, unclear and often contradictory. While Capt. Orange opined that the changing of tags on stacks of cargo would be classified as “theft” under Chinese law, (Ex. 2, p. 7, 4.5), he acknowledged that he is not a Chinese law expert, not an attorney in any jurisdiction in the world and, in fact, had never taken a single class on Chinese law. (Ex. 1, p. 108, In. 9 — p. 109, In. 6). This admission alone renders his opinion on this issue inadmissible. This opinion only becomes more unclear as he later clarified that, in his opinion, to constitute theft, there needed to be more action than a mere change of the labels, such as the actual removal of the bags from the warehouse, of which there is no evidence. (Ex. 1, p. 71, In. 1 = p. 72, In. 9). Capt. Orange could not offer any specifics about the alleged theft. He lacked information on who allegedly stole it, how it was stolen and when and where it was taken. Besides his heretofore undisclosed site visit in which he was accompanied at the warehouse by Ms. Cherry Zheng, an employee of Gerald’s who previously visited the port, he did not perform anyindependent investigation into the alleged loss of the cargo. He did not review any records or conduct any interviews with the police or port personnel. (Ex. 1, p. 83, In. 1 — p. 84, In. 4). Despite testifying about the operations and security measures at Chinese warehouses generally, Capt. Orange later testified he was not actually giving expert evidence on these issues. (Ex. 1, p. 167, In. 7-16). Later, Capt. Orange “clarified” that his opinions were not about Chinese warehousing procedures but, instead, “what’s happened to Gerald’s material.” (/d.). Yet, while on the site visit, he did not see any of Gerald’s cargo. (Ex. 1, p. 75, In. 17-24). The only thing he knew about the cargo was it was not in the warehouse areas where Gerald directed him. At the conclusion of his deposition his sole opinion was that he did not see Gerald’s cargo at the time of his September 2019 visit to the port. (Ex. 1, p. 75, In. 17 — 24; p. 167, In. 7— 16). This is not expert evidence. Gerald’s attempt to elevate Capt. Orange to the trusted position of an expert in order to make his speculative testimony more credible to the jury should be rejected. Cc Retention by Gerald During the course of this litigation, tens of thousands of documents have been produced by the parties and approximately twenty depositions have been conducted. Capt. Orange was retained by Gerald in 2019 a few months before he issued his expert report. (Ex. 1, p. 82, In. 22-25). Capt. Orange was provided with and relied on only five documents for his opinions: the two CSL reports, Gerald’s 2016 claim report, Gerald’s Second Amended Complaint (which is no longer the operative complaint), and inspection reports from Gerald (i.e., Ms. Zheng’s site visit reports). (Ex. 2, p. 1). Despite asking for “all relevant documentation,” this is all that Gerald provided him. (Ex. 1, p. 110, In. 10 ~ p. 113, In. 10). Capt. Orange did not review any of the depositions, including those of Ms. Zheng, the CSL witnesses, or the CWT employees. In fact, he was unaware that these depositions were even conducted. (Ex. 1, p. 109, In. 7 — p. 113, In. 10). He did not review thedocuments referred to in his own expert report, such as the purchase contract or warehouse receipts. (Ex. 1, p. 114, In. 20 — p. 116, In. 13; purchase contract; p. 118, In. 6 — p. 120, In. 23, warehouse receipt). When asked if this information would have been relevant or would have changed his opinions, Capt. Orange was unable to answer because he didn’t know the substance of the documents or depositions. (Ex. 1, p. 109, In. 7 — p. 113, In. 10; p. 133, In. 12 - p. 138, In. 7). Despite having reviewed the CSL reports, Capt. Orange did not mention in his report or consider in his opinions the Chinese government's detention of the alumina, which is specifically referenced in the conclusions of the CSL report. (Ex. 1, p. 100, In. 1 — p. 103, In. 16). It is unclear ifhe was even aware of it or the police investigation into the fraud relating to Gerald’s cargo. He had no knowledge of the warehouse operator’s fraudulent activities resulting in his 23-year imprisonment or his issuance of duplicate warehouse receipts. (Ex. 1, p. 127, In. 3 — p. 128, In. 18; p. 131, In. 8 — p. 133, In. 11). Capt. Orange was unable to comment if such information could have been relevant to his investigation without seeing the full reports; this would have amounted to hundreds of pages of documents. (Ex. 1, p. 133, In. 12 —p. 135, In. 2). Capt. Orange’s lack of knowledge about the facts of the case and the lack of any independent investigation on his part was also apparent from the background section of his report which was nearly a verbatim recitation of Gerald’s Claim Report. His ignorance of the facts was apparent. Some of the information contained in the background section of his report and Gerald’s Claim Report was not only incorrect, but a simple review of the documents referred to would make the error abundantly clear. For instance, Capt. Orange believed that the purchase contract was the document governing title to the alumina and that it needed to be surrendered to the warehouse to take possession of it. However, the purchase contract makes no such provision. He believed thatthe purchase contract was for 25,250 tons of alumina when the actual contract was for 43,000 tons. He admitted that he had never seen the purchase contract. (He was also unaware of the disposition of the other 17,000 tons of alumina). (Ex. 1, p. 114, In. 20—p. 118, In. 3). He later testified that this information would have impacted his opinions on this case. Q. You were shown the sales contract, which you noted in your background; and the amount of that sales contract, 43,000 as opposed to 25 or 26 metric tons, the number was larger. Would the fact that a transaction between the two parties included lots in different warehouses have any impact on any opinions you've rendered? A. Yes. Seemingly unhappy with this answer, Capt. Orange was asked later: Q. In other words, they purchased from two different warehouses; does that have any impact on any opinion you've rendered? A. Yeah. The outstanding 16,000 could have been located anywhere separate, and they could have been in Qingdao Port or in different locations. (Ex. 1, p. 170, In. 8-23). Still dissatisfied, Gerald’s counsel again asked Capt. Orange if such information would change his testimony about the Chinese warehouse security practices or the changing of tags. (See Ex. | at p. 170, In. 24—p. 171, In. 9). While he answered in the negative, Capt. Orange testified that he was not giving expert opinions on either of these topics. (Ex. 1, p. 166, In. 22 —p. 167, In. 16). What precisely Capt. Orange’s expert opinions are remains a mystery. D. Capt. Orange’s September 2019 site visit to Qingdao Dagang Port. During his deposition, Capt. Orange revealed he had visited the Dagang area at Qingdao in September of 2019 accompanied by a Gerald employee, Ms. Cherry Zheng, and that photos were taken. (Ex. 1, p. 47, In. 4-16). This was the first time Defendants were made aware of this visit. Put another way, Gerald has failed to reveal relevant, discoverable information for nearly three years. Capt. Orange stated multiple times during his deposition that his opinions were basedon his expertise and his never-before-disclosed visit to the port. Defendants were not only surprised because Capt. Orange didn’t disclose his visit in his report, but also because Cherry Zheng testified falsely about it, failing to disclose during her second deposition that she was at the warehouse in September 2019, despite being specifically asked.' (Exhibit 3, p. 15, In. 9 — p. 16, In. 13). Capt. Orange failed to supplement his report to disclose his visit to the warehouse despite relying on this visit as a basis for the opinions he presented in his trial testimony. His opinions are so intertwined with his site visit, they cannot be separated. This failure to disclose relevant and previously requested information should preclude Gerald from introducing Capt. Orange’s deposition testimony. During the site visit, Capt. Orange did not observe any of the Elysia cargo. He was uncertain what areas of the warehouse he visited. He did not know whether the Elysia cargo had ever been stored in that area. Nothing in the record indicates he even visited areas 64 and 65, the locations where the Elysia cargo was reportedly once stored. In fact, his testimony indicates he was not. (Ex. 1, p. 66, In. 16-24, testifying visiting area 69). Although he admitted taking photos during his visit, no documents, pictures, or other evidence has been produced by Capt. Orange or Ms. Zheng in relation to this Sept. 2019 visit. (Ex. 1, p. 66, In. 16 — p. 68, In. 9). Capt. Orange’s failure to disclose the site visit, and Ms. Zheng’s false testimony about it, is nothing short of an intentional and egregious violation of the discovery rules. A fair and even playing field is the core concept of expert disclosure. Gerald’s chicanery should not be rewarded. 1 Gerald’s attempt to keep this September 2019 warehouse visit secret, and to surprise Defendants with it at trial is made even more clear when one considers that Gerald moved to preclude Defendants from re-examining Cherry Zheng after her first deposition on April 10, 2018 or, alternatively, to limit the scope of her deposition to her visit relating to the earlier cargo auction. Gerald’s motion was denied. Despite this, Ms. Zheng testified falsely about her recent visits to the terminal, failing to mention that she accompanied Capt. Orange to the terminal in September, 2019. (Ex. 3, p. 15, In. 9 — p. 16, In. 13).ARGUMENT I. Capt. Orange does not meet the standards of the Connecticut Code of Evidence Section 7-2. He does not offer scientific, technical or other specialized knowledge. His testimony will not assist the trier of fact. By his own admission, Capt. Orange does not meet the requirements of the Connecticut Code of Evidence. He openly admits to having none of the expertise necessary to be considered an expert on the issues. Further, his testimony does not aid the fact finder. Capt. Orange is not providing an expert opinion; he is telling the jury what they should find. A. The testimony is not scientific, technical, or specialized knowledge. Section 7-2 through 7-4 of the Connecticut Code of Evidence govern the admissibility of expert testimony. Specifically, Section 7-2 states: A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue. This imposes two conditions on the admissibility of expert testimony. First the witness must be qualified. See State v. Wilson, 188 Conn. 715, 722 (1982). Whether a witness is sufficiently qualified to testify as an expert depends on whether, the witness’ knowledge, skill, experience, etc., his or her testimony will “assist” the trier of fact. See Weinstein v. Weinstein, 18 Conn. App. 622, 631, 561 A.2d 443 (1989); see also, e.g., State v. Douglas, 203 Conn. 445, 453, 525 A.2d 101 (1987) (“to be admissible, the proffered expert's knowledge must be directly applicable to the matter specifically in issue”). Whether or not a witness is qualified is a preliminary question for the court. Blanchard v. Bridgeport, 190 Conn. 798, 808, 463 A.2d 553 (1983).Capt. Orange admits that he is not offering scientific knowledge. (Ex. 1, p. 72, In. 10-25). He further admits that his knowledge is not particularly specialized in any fields relevant to this case. (/d.). Capt. Orange testified that his testimony “could be, [i-e., “might be”], classified as technical.” (/d.). Yet he himself seems unsure of his area of expertise. As discussed later herein, the specifics of Capt. Orange’s purported expert opinions are difficult to decipher. But if one can decipher them, Capt. Orange has no qualifications to testify about the technicalities of warehousing on which he is supposedly “opining”. Capt. Orange does not have any qualifications in the area of cargo theft, nor does he have any specialized or technical knowledge in the area of warehouse security. (See Ex. 1 p. 90, In. 23 — p. 96, In. 11). Capt. Orange can offer no specific insights into how this alleged theft occurred. Although he sought to opine about what constitutes theft under Chinese law, (See Ex. 2, Sec. 4, | 5), Capt. Orange is not an attorney anywhere in the world and has never taken a course on Chinese law. (Ex. 1, p. 108, In. 21—p. 109, In. 6). Capt. Orange testified that “theft is theft.” (Ex. 1, p. 172, In. 14—In. 21). If, as he proposes, everyone knows “theft is theft,” an expert is not needed to render this opinion. Ultimately, Capt. Orange testified that his opinions were not about theft, warehousing procedures, or security measures, only what had happened to Gerald’s cargo. (Ex. 1, p. 167, In. 7- 16). If this is, indeed, his opinion, this is not the scientific, technical, or specialized knowledge as the rules contemplate. B. Capt. Orange’s testimony will not assist the jury. The jury can draw its own conclusion about the fate of Gerald’s cargo. To be admissible, the proposed expert testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. See, e.g., State v. Hasan, 205 Conn. 485, 488, 534 A.2d 877 (1987). This means that the scientific, technical, or specialized knowledge upon which the expert's testimony is based must go beyond common knowledge andcomprehension of the average juror. See State v. George, 194 Conn. 361, 373,481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 105 L. Ed. 2d 968 (1985). By his own admissions, Capt. Orange’s testimony satisfies none of these requirements. Expert testimony is admissible only when it goes beyond the field of ordinary knowledge and experience of the trier of fact. When the subject of the testimony is within the jury’s understanding, the testimony will not aid them and thus should not be admitted. State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984). Where the inferences elicited from the expert are so obvious that “they could as readily be drawn by the jury... the proffered testimony was merely a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.” Jd. After much confusion about the so-called specific scientific, technical or specialized knowledge Capt. Orange was seeking to import, Capt. Orange testified that his opinions relate to “what has happened to Gerald’s materials” as opposed to “the security practices” or “alleged theft of the cargo.” (Ex. 1, p. 166, In. 22 — p. 167, In. 16). The jury is capable of considering the evidence and drawing its own conclusion as to what has happened to Gerald’s material. Capt. Orange is usurping its role. Cc. Capt. Orange’s opinions are based on insufficient and incompetent evidence rendering it inadmissible. The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of his opinion. See Berndston v. Annino, 177 Conn. 41, 46, 411 A.2d 36 (1979); Sears v. Curtis, 147 Conn. 311, 314-15, 160 A.2d 742 (1960). “Where the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value.” State v. Asherman, 193 Conn. 695, 716-17, 478 A.2d 227 (1984). That 10question is one of fact for the trial court. Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d 86 (1985). Capt. Orange’s testimony should still be stricken since it is based upon clearly insufficient evidence. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73, 77 (Conn. 1964); Sears v. Curtis, 147 Conn. 311, 314 (1960). “The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of the expert's opinion.” Fortin v. Hartford Underwriters Ins. Co., No. HHDX04CV034034596S, 2009 WL 659260, at *3 (Conn. Super. Ct. Feb. 19, 2009) (citing Glaser v. Pullman & Comiley, LLC, 88 Conn. App. 615, 624, 871 A.2d 392 (2005)). The question is whether “the missing fact is such an essential part of the factual foundation for the opinion that its absence would rob the opinion of its persuasive force.” Fortin, 2009 WL 659260, at *3 (citing State v. Asherman, 193 Conn. 695, 717, 478 A.2d 227 (1984). Where the expert witness' testimony fails to establish that he has an adequate factual foundation to support his opinions, an order precluding the testimony is warranted. See DeBartolo y. Daimler Chrysler Corporation, Superior Court, judicial district of New Haven at New Haven, Complex Litigation Docket, Docket No. X10 NNH CV 03 0482725 (December 22, 2005, Munro, J.) (40 Conn. L. Rptr. 503). Here, Capt. Orange’s testimony and expert opinions were based on a scant selection of documents cherry-picked by Gerald, rendering his testimony inadmissible. Despite asking for “all relevant documents,” Capt. Orange was provided with only five. (Ex. 1, p. 110, In. 10 — p. 113, In. 10; See Exhibit 2). Capt. Orange did not review any of the depositions taken in this matter, including those of Cherry Zheng, the different CWT witnesses, the CSL employees and surveyors, nor was he aware these depositions were even conducted. (Ex. 1, p. 109, In. 7 — p. 113, In. 10). He did not review the documents referred to in his own expert report or any of the other operative documents, such as the purchase contract, the Rukudan or the 11CWT warehouse receipts. (Ex. 1, p. 114, In. 20 — p. 116, In. 13; purchase contract; p. 118, In. 6 — p. 120, In. 23, warehouse receipt). He was unaware of the fraud investigation which resulted in the alumina’s detention, the police verification that the Rukudan was a fake, the unsuccessful CWT litigation (filed on Gerald’s behalf) to overturn that verification, the guilty plea of the fraudster, the various Chinese Court decisions and the recent auction of the alumina, including the subject material, by the Chinese Court. When asked if this information would have changed his opinions, Capt. Orange was either unable to answer because he did not know the substance of these documents or depositions, or he admitted that such information could change his opinions. (Ex. 1, p. 109, In. 7—p. 113, In. 10; p. 133, In. 12—p. 138, In. 7; Ex. 1, p. 170, In. 8-23). Gerald cannot spoon feed their expert only the evidence they want him to consider while leaving out the oceans of evidence which undermine their theory of the case. Il. Even if Capt. Orange could qualify as an expert, his testimony is speculative. No opinion, whether lay or expert, can be based on conjecture or surmise. Stephanofsky v. Hill, 136 Conn. 379, 383-385 (1950). Opinions and the conclusions drawn by experts must be reasonably probable, not merely possible. Witkowski v. Goldberg, 155 Conn. 693, 696 (1932); Madore v. New Departure Manufacturing Co., 104 Conn. 709, 714 (1926). TAIT'S HANDBOOK OF CONNECTICUT EVIDENCE, § 7.5.5 (3d ed.2001). “[E]xpert testimony that ignores existing data and is based on speculation is inadmissible.” JMJ Enterprises, Inc. v. Via Veneto Italian Ice, Inc., 1998 WL 17588, *6 (E.D.Pa. April 15, 1998) (interpreting Federal Rule of Evidence 702, after which Connecticut Code of Evidence Section 7-2 is modeled). Connecticut law requires that the court exclude evidence which is speculative. K&V Sci. Co., 2002 WL 31662326, at *3. Based on the five Gerald-selected documents and his undisclosed site visit in Sept. 2019, Capt. Orange opines that Gerald’s cargo was stolen. (Ex. 1, p. 75, In. 13 — p. 76, In. 5). As 12discussed in detail in Section III, any opinions based on Capt. Orange’s site visit are beyond the scope of his disclosure and should be stricken. However, assuming arguendo that he is permitted to rely on his site visit as a basis to opine, there are no opinions which can be drawn from it which are not entirely speculative. There was no requirement that Gerald’s cargo be stored in any specific area of the warehouse. (Ex. 1, p. 78, In. 8 ~— p. 79, In. 15; See Exhibit 4, Orange Ex. F, Warehouse Receipt, describes area in general). Because this cargo was subject to two Chinese court orders of detention or injunction, what steps were taken to protect the cargo during the investigation is anyone’s guess. But, Capt. Orange was unaware of any of these details. (Ex. 1, p. 102, In. 2 — p. 103, In. 16). Instead, he was taken during his previously undisclosed site visit to unknown warehouse areas. (Ex. 1, p. 66, In. 20 — 21, believing it to be Area 69; Ex. 1, p. 67, In. 24 — p. 68, In. 14, unable to specifically recall the area number). He did not know where the alumina had been stored at any time, or where else in the enormous complex alumina was stored. He did not conduct any independent investigation. He did not interview the security authorities which detained the cargo or the port personnel engaged in port security or cargo handling. He did not seek to obtain any other port documents which would establish whether the cargo had been removed from the terminal. (Ex. 1, p. 82, In. 5 — p. 84, In. 4; p. 106, In. 8 - 21). Since he has no expertise in the area, his testimony is speculative, at best. Capt. Orange later confirmed that he was not opining that the cargo was stolen, simply that it was not in the area of the port where Gerald’s witness directed him. (Ex. 1, p. 104, In. 7 — p. 107, In. 25). This is evidence of nothing, and certainly not expert-worthy. 13Il. Gerald violated its ongoing discovery obligation by failing to disclose Capt. Orange’s September 2019 site visit. The site visit is outside of his expert disclosure. During his trial deposition, Capt. Orange disclosed for the first time that he visited Qingdao Dagang in September 2019 with Ms. Cherry Zheng. This visit came a month after he authored his expert report. Capt. Orange never supplemented his report. Nothing in Plaintiffs’ disclosures or the expert report even allude to Capt. Orange’s site visit. Even more disturbing is Cherry Zheng’s failure to disclose this September 2019 warehouse visit during her April 14, 2021 deposition. Ms. Zheng was specifically asked when she visited the port since her April 2018 deposition. Ms. Zheng testified as follows: So let me specify. So January 2019 I went to check out the cargo. And for the August 2019 I went there because there was a court-organized auction. So I went there to check out the on-site sample that the court showed us. (Exhibit 3, p. 16, In. 8 — 13). Ms. Zheng avoided entirely any mention of her visit to the warehouse in September 2019 with Capt. Orange, a visit on which Capt. Orange now seeks to rely. Connecticut Practice Book Sec. 13-4 governs expert testimony and disclosures. [It] requires any plaintiff expecting to call an expert witness at trial [to] disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Somers Mill Assoes., Inc. v. Fuss & O'Neill, Inc., No. X03CV000503944, 2002 WL 467910, at *5 (Conn. Super. Ct. Mar. 5, 2002), aff'd sub nom. Ahearn v. Fuss & O'Neill, Inc., 78 Conn. App. 202, 826 A.2d 1224 (2003) (citing Conn. Prac. Book Sec. 13-4). Connecticut Rules of the Superior Court Section 13-4 requires disclosure of “the substance of the grounds for each such expert opinion.” Gerald failed to supplement Capt. Orange’s report 14after his Sept. 2019 visit to Qingdao Dagang Port. All of the opinions given during his deposition were based, at least in part, on his undisclosed site visit. This failure to disclose renders his opinions inadmissible. The Connecticut Supreme Court has observed that expert disclosure is intended to avoid just this kind of surprise. Doyle v. Kamm, 133 Conn. App. 25, 31-32, 35 A.3d 308, 314 (2012) (citing Wexler v. DeMaio, “to assist the defendant in the preparation of his case and to eliminate unfair surprise by furnishing the defendant with the essential elements of a plaintiff's claim.” Wexler v. DeMaio, 280 Conn. 168, 188, 905 A.2d 1196 (2006)). A key element to this inquiry is whether the information constitutes new and distinct subject matter as opposed to being information reasonably contemplated by the disclosure. Doyle, 133 Conn. App. at 31-32. Not only was this site visit not contemplated by the disclosure, Cherry Zheng specifically covered it up. When experts do not disclose information in their expert report, they are unable to offer opinions at trial based on that evidence. See Somers Mill Assocs., Inc. v. Fuss & O'Neill, Inc., No. X03CV000503944, 2002 WL 451291, at *7 (Conn. Super. Ct. Feb. 27, 2002), affd sub nom. Ahearn vy. Fuss & O'Neill, Inc., 78 Conn. App. 202, 826 A.2d 1224 (2003). Section 13-4 “is intended to furnish a defendant with the details of a plaintiff's reliance on expert testimony in order to assist him with the preparation of his case.” Ciarlelli v. Romeo, 46 Conn. App. 277, 280-81, 699 A.2d 217, 219 (1997) (citing former version of Practice Book). A trial court may, in the exercise of its discretion, impose sanctions on a party for failure to comply with the rules of disclosure. /d. Such sanction can include the exclusion of expert testimony at trial. Jd. (citing Practice Book). Section 13-4 limits trial testimony to an expert’s pretrial disclosure. Somers Mill Assocs., Inc. v. Fuss & O'Neill, Inc., No. X03CV000503944, 2002 WL 467910, at *5 (Conn. 15 I eR 2 SESS SESS SSS ESS SOE NSSuper. Ct. Mar. 5, 2002), affd sub nom. Ahearn y. Fuss & O'Neill, Inc., 78 Conn. App. 202, 826 A.2d 1224 (2003). Capt. Orange testified that, based on “the fact that there was no cargo present to be seen” at the September 2019 visit, Gerald’s cargo was stolen. (Ex. 1, p. 75, In. 13 - 24). Capt. Orange admits that his trial testimony was inextricably linked to information not disclosed in his expert disclosure or report. This alone should make his testimony inadmissible. Gerald should not be benefitted by blind siding the Defendants with new information during the trial testimony of an expert witness, especially with information known to Gerald for over three years. At the very least, Gerald should have amended Capt. Orange’s expert report and produced the photos taken at the September 2019 site visit. Capt. Orange’s opinions, where decipherable, are so intwined with his visit, his testimony is unsalvageable. The deposition is inadmissible. CONCLUSION For the foregoing reasons, Defendants ask that this Court grant their motion in limine to exclude all of the trial testimony of Capt. Orange. Dated: September 21, 2022 Southport, CT The Defendants, By: — /s/Thomas L. Tisdale Thomas L. Tisdale (101741) Tisdale & Nast Law Offices, LLC 10 Spruce Street Southport, CT 06890 Tel.: 203-254-8474 Fax: 203-254-1641 tisdale@tisdale-law.com 16CERTIFICATION OF SERVICE Thereby certify that on this 21st day of September 2022, a copy of the foregoing pleading was emailed to the following counsel of record, upon consent, pursuant to Connecticut Practice Book §10-13: pfl@implaw.net SRW@Implaw.net Patrick F. Lennon Steven R. Winters Lennon, Murphy & Phillips, LLC 1599 Post Road East Westport, CY 06880 jberringer@reedsmith.com acrawford@reedsmith.com John B. Berringer Anthony B. Crawford Reed Smith, LLP 599 Lexington Avenue New York, NY 10022 /s/Thomas L. Tisdale Thomas L. Tisdale 17Exhibit 1An UO B® WN KB SUPERIOR COURT JUDICIAL DISTRICT OF FAIRFIELD AT STAMFORD GERALD METALS, LLC and GERALD METALS Sarl, Plaintiffs, -against- CERTAIN UNDERWRITERS SUBSCRIBING TO MARINE CARGO INSURANCE POLICIES NOs.: BO7853PC1309890000 BO753PC1412113000 B1353DC1501253000, Defendants. Docket No.: FST-CV17-6031032-S HELD REMOTELY VIA ZOOM VIDEOCONFERENCE July 21st, 2022 7:05 a.m. DEPOSITION of CAPTAIN ROLAND ORANGE, an | Expert Witness herein, taken at the above-mentioned time and place, before Dana Daufeldt, CSR, RPR, and a Notary Public of the State of New York, pursuant to Agreement and Stipulations between Counsel. Page 1 Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430Page 2 1 bd Direct - Roland Orange 5 APPEARANCES: | 2. Roland Orange in the matter of Gerald 4. REED SMITH, LLP 3 Metals, LLC., et al., versus Certain | Attorneys for Plaintiffs 4 — Underwriting Subscribing to Marine Cargo 5 599 Lexington Avenue 5 Insurance Policies. Filed in the Superior 5 nan New York 10022 6 — Court, Judicial District of Fairfield at BY: ANTHONY B. CRAWFORD, ESQ. 7 Stamford; Case Number FST-CV17-6031032-S, 7 JOHN B. BERRINGER, ESQ. 8 My name is Rocco Mercurio and the 8 9 court reporter is Dana Daufeldt, and we are 9 10 from vertex. 10 TISDALE & NAST LAW OFFICES, LLC 11 Will counsel please introduce Attorneys for Defendants W 10 Spruce Street 12 themselves and state who you represent for Southport, Connecticut 06890 13 the record. 12 BY: THOMAS TISDALE, ESQ. 14 MR. BERRINGER: John Berringer JAMISON JEDZINIAK, ESQ. « B 15 representing Gerald Metals. 14 16 MR. CRAWFORD: Anthony Crawford 15 17 representing Gerald Metals. 16 18 MR. TISDALE: Thomas Tinsdale ie 19 representing the Underwriter Defendants. 19 ALSO PRESENT: 20 MR. JEDZINIAK: Jamison Jedziniak | 20 JAKE FRANKS, Veritext Concierge 21 representing the Underwriter Defendants. 21 ROCCO MERCURIO, Veritext Videographer 22 VIDEOGRAPHER: The court reporter will 5 23. now swear in the witness and we can 24 24 proceed. 25 25 ROLAND ORANGE, Page 3 Page 5 1 Direct - Roland Orange 1 Direct - Roland Orange 2 MR. BERRINGER: As for the 2 having been first duly sworn by a Notary Public of 3 stipulations, objections except as to form 3 the State of New York, was examined and testified as 4 are preserved; he can read and sign without 4 follows: 5 -- whatever that one is, the read and sign. 5 DIRECT EXAMINATION BY 6 MR. TISDALE: Okay. | 6 MR. BERRINGER: 7 MR. BERRINGER: I'm not sure that 7 Q. Mr. Orange, could you give us your 8 there's anything else we need to worry 8 current address and employer? 9 — about now. I'd just note that this is | 9 A. Current address, yeah? I live in 10 pursuant to the agreement of the parties, | 10 Greencourt 2 on Biyun Road, Building 16, 11 and that it is being used in part as trial | 11 Apartment 401, in Pudong New Area, Shanghai. 12 testimony. | 12. Q. And your employer? Can you identify 13 VIDEOGRAPHER: Good moming. We are | 13 your current employer? 14 now going on the record. Today is | 14 A. My present employer is Solis Marine 15 Thursday, July 21, 2022, and the time is | 15 Consultants. They have their head office in 16 approximately 7:05. Please note that the | 16 London, and J am in the subsidiary office here 17 deposition is being conducted virtually. | 17 in Shanghai. 18 The quality of the recording depends on the 18 Q. Just to let you know what the first 19 quality of the camera, internet connections | 19 half-hour or so is going to involve, I would | 20 of the participants. What is heard and | 20 like to take you through your educational and 21 seen on this screen is what will be (21 employment history. Maybe before we start 22 recorded. Audio and video recording will 22 posing questions, can we mark as Plaintiff's 23 continue to take place unless all parties (23 Exhibit 1 Captain Roland's expert report along 24 ~~ agree to go off. 24 with the two Exhibits to that report. 25 This is the remote video deposition of (25 212-279-9424 2 (Pages 2 - 5) Veritext Legal Solutions www.veritext.com 212-490-3430— T Page 46 | 248 | | Direct - Roland Orange A. Yeah, yeah. Q. And the manager at that Qingdao office accompanied you on the visit, correct? A. Yeah, that's correct. Q. Was his presence of assistance in gaining access to the site? A. Yeah. I mean, that was the main | reason for contacting him and having his use. He had access -- because he is a regular surveyor in Qingdao, he has an access card. So | we were allowed to drive straight into the port and straight to the bonded storage area. Q. What did you observe there? MR. TISDALE: Note my objection to anything not included in his expert disclosure. MR. BERRINGER: You can answer. A. Yeah, so we got to the bonded storage area, and we saw all the storage of the products there that were covered with tarpaulins, secured with rope lashing, and each bundle was marked | with a red cloth, just one single red piece of cloth; and we witnessed bags being brought into Direct - Roland Orange 1 bags, but there was no paperwork from the port 2 to say that it had been tallied and counted 3 properly. 4 Q. You say, "The security gate workers 5 had no paperwork to tally the removed cargo and 6 would expect this to be handled by the tallyman 7 at the shipside." 8 A. Yeah. 9 Q. You weren't taking this material to be 10 shipped, correct? 11 A. Yeah, the people at the gate just 12 waved the truck through with their arm. They 13 would have seen these surveyors before, they 14 would know them, surveyors without access cards 15 to the port. 16 Q. Once again, the port might have 17 records on the amount of Bauxite that was at 18 Qingdao that was deposited in Qingdao, but they | 19 wouldn't have any records of the amount of 20 bagged cargo that was removed, correct? 21 MR. TISDALE: Object to the form of 22 the question. 23 A. Yes, that's correct. | 24 MR. TISDALE: Speculation. 25 Page 47 Direct - Roland Orange 1 Q. Say that again, Captain Orange. | 2 A. Yeah, that would be correct. ; 3 Q. Did you ever have occasion to visit 4 5 Qingdao in connection with Gerald's materials? | 5 A. Yes. 1 was asked to go in September 6 2019 to go to the storage area within Qingdao 7 Port. | 8 Q. And did you, in fact, go to the | 9 storage area of the Qingdao Port? /10 A. Yes, I did, yeah. al Q. Who accompanied you on that visit? 12 A. Imet Ms, Cherry Zheng at the hotel, 2B and Solis has an office in Qingdao; and our 14 office manager from Qingdao drove us to the 15 location within the port. 116 Q. Okay. So Solis maintains an office in | 17 Qingdao? (18 A. Yeah. More of a collaboration I would | 19 say than an actual Solis -- they work for us and | 20 they are based in Qingdao and they have an 21 office there, but they also do their own work 22 privately. 23 Q. Okay. So it is a business arrangement? 212-279-9424 Page 49 | Direct - Roland Orange other to form the pyramid shapes. Q. Those cloth tags, did they have writing on them? A. Yes. They appeared to have a ship's name and the location of the pyramid-shaped storage and an estimation of a number that pertained to the number of bags that were inside. Q. Do you recall whether any of the cloth tags indicated that the material came from the Elysia? A. No, not at all. We went to the | locations that were supposedly marked as where the cargo had been stowed, and there was no tags with Elysia marked on any. Q. Based upon your visit in September of 2019, would it have been possible for you to either write over those tags or replace those tags with tags that you brought to the site yourself? MR. TISDALE: Object to the form of the question. MR. BERRINGER: You can answer. Veritext Legal Solutions www.veritext.com 212-490-34301 Cross - Roland Orange 2 much the same in most port areas in China. So 3 if] attended ten times in a year in one area, 4 say Shanghai, I can apply for a permanent pass, Page 66 | 1 Cross - Roland Orange 2 particular area in the yard; is that right? 3. A. Yes. She directed us to the bonded 4 storage area. copies to John and Anthony. Q. And did you make a report of your visit? A. I didn't, no. Q. Did you correspond with anyone about what you observed on your visit? A. I think I made email correspondence about it, yes. Q. And that's with whom? A. With John and Anthony. Q. Did you take any notes while you were there? A. I don't think I took notes, no. I just took photographs and relied upon the photograph evidence. 21 Q. Were you ever asked to supplement your 22 disclosure here, your expert disclosure? 23. A. No. 24 Q. When you -- I think you mentioned that hile -- if 1 get it right, Cherry took you toa 5 and that’s what Jason has. 5 Q. And you don't, as you sit here today, 6 Q. So Jason has the permanent pass which 6 don't remember what number area that was? 7 allows him access onto the terminal, correct? 7 A. Icould look at a photograph. I took 8 AL Yes. 8 photographs of the number markings. | can't 9 Q. And you were in his company, correct? | 9 recollect it at the moment. 10. A. Yeah. /10 Q. How many different areas did you go 11 Q. And you believe, don't you, that the | 11 to, fenced in areas? 12 reason you were granted access to the terminal 12 A. Two. We went to the one on the right 13 was because you were with Jason who had a pass, | 13 and the one on the left as you enter the 14 correct? 14 facility. 15 A. Yes. 15 Q. Did you see any areas -- were there 16 Q. What warehouse area did you go to when 16 other areas in the warehouse, area generally, 17 you finally entered the Dagang warehouse? 17 that you could see stacked cargo covered by 18 A. We went straight to the bonded | 18 tarpaulins? 19 warehouse that was directed by Ms. Cherry Zheng. | 19 A. Yeah. We walked pretty much around 20 = Q. What area was that? | 20 the full area looking at the various piles. 21 A, 691 think it was called. 21 Q. Not just in the two areas where Cherry 22. Q. And what are you looking at? 22 took you, but generally in the area, in the 23. A. Sorry, that's my report. Just 23 Dagang warehouse area, did you observe other 24 referring to that, I'm sorry. 24 stacks of cargoes covered by tarpaulins? 25 Q. When you were there, did you take any 25 A. Yeah. Numerous stacks. Page 67 / Page 69 1 Cross - Roland Orange 1 Cross - Roland Orange 2 notes or take any pictures? 2 Q. Numerous stacks. Did you ever learn 3. A. Yeah, I took photographs, yeah. 3 what was under those stacks or in those stacks? 4 Q. Where are those photographs? 4 A. No. There was no facility to take off 5 A. Ihave them on my computer and I sent | 5 the tarpaulins. Q. Did you enter into any of these other 7 yards or these other areas? 8 A. We walked around the full area of that 9 bonded storage area. Q. And did you look at the tags on those other stacks? A. As we went past, we looked at the markings on them, yes. Q. How many different stacks did you look 15 at? ;16 A. Numerous. I can't recollect an exact | 17 number, but we would walk down -- there was the 18 main road, then there were off-shoots after 19 every stackage; and we walked down those and 20 went and looked at people unloading trucks and 21 making new stacks. 22. Q. While you were there, you were 23 watching cargo operations under way so new 24 stacks were being made, right? 25 A. Storage of the stacks from the trucks, 18 (Pages 66 - 69) Veritext Legal Solutions 212-279-9424 www. veritext.com 212-490-3430Page 70 | 1 Cross - Roland Orange 2 yeah, Trucks were coming in all the time, and 3 they were being unloaded and stacked. 4 Q. Just so we are all talking about the 5 same thing here, the bags that you are talking | 6 about are sizable bags, like a one-ton bag, 7 correct? 8 A. Yeah, the folks that we talked to seem 9 to indicate that it could hold the capacity of 10 1.5 tons. 11 Q. What kind of equipment is necessary to 12 unload the truck? 13. A. They would be using a crane, a crane 14 on the truck. 15 Q. And in order to load the truck, you 16 would need a crane, right? 17 A. Tobserved them when J was in Qingdao | 18 the following month on an unrelated matter, and 19 they were like forklift trucks. They would lift 20 the bags from the storage area under the chutes 21 then put them on the trucks. 22 Q. Okay. But you would need some form of 23 heavy equipment to load the bag onto a truck and 24 to unload a truck into a stack, right? 25 A. Yeah. Page 71 Cross - Roland Orange | Q. And to remove it from a high stack, you'd also need a crane because you would have, to remove from the top, right? A. Yes. Q. I think you mentioned you and Cherry took a label off one of the stacks in the area 8 where Gerald's cargo was located; am ] right? 9 A. It was actually me and Jason that took 10 the tag off. | 1 Q. You are not saying that you were there | 12 for committed theft; are you? | 13. A. I put the tag back. It was just i 14 purely to show how easily the tag could be | | 15 removed. | /16 Q. Right. But your opinion is not just | | 17 that you take -- if the tag is changed that |18 that's a theft, correct? 1 2 3 4 te 5 6 7 19 MR. BERRINGER: Object to the form of 20 the question. 21 Q. Doesn't more need to be done, like it | |22 being removed from the pier and taken off of th 23 terminal, absconded with to be a theft? 24 A. Yes, it has to be removed, yeah. 25 Q. Even if you and Jason took the tag or (2 Page 72 1 Cross - Roland Orange | 2 changed the tag, you would still have to do 3 something else before, in your view, it would bel | 4 a theft, correct? MR. BERRINGER: Object to the form of the question. MR. TISDALE: You can answer. A. Yes, it would have to be removed, | 9 yeah. | 10. Q. Let's talk generally here. Experts 11 are permitted to give opinion testimony in 12 courts on matters of scientific, technical, or | 13 specialized knowledge. Which of those are you, 14 proposing constitutes the testimony you're 15 giving in this case; is it scientific? 16 A. It's not scientific, no. 17 Q. Is it technical? 18 A. It could be classified as technical, 19 and also experience from visiting these 20 facilities. 21 Q. So is it your belief that it is 22 considered specialized knowledge? 23 A. I don't think it's particularly 24 specialized. I have general knowledge of the 25 operations and access to ports. Q. Right. I think you said you were 3 generally knowledge about that, generally | 4 knowledgeable about documentation, but that you | 5 don't have any specific knowledge in these | 6 fields; is that fair? | 1 Cross - Roland Orange | 7 MR. BERRINGER: Object to the form of 8 the question. (9 MR. TISDALE: You can answer. 10 Mr. Berringer is going to object from I time to time to my questions. He is just 12 preserving his objection for trial, but you 13 still need to answer the question. 14 Tf there is an issue and he doesn't | 15 want you to answer it, you can be sure he | 16 will let you know, | (17 A. I would say it is reasonably specific | | 18 related to access to ports. 19 Q. You have never worked for a Chinese 20 port; is that correct? 21 A. Correct. 22 Q. You have never participated -- did you 23 ever participate in any of the training of 24 Chinese port personnel? | 25 19 (Pages 70 - 73) Veritext Legal Solutions 212-279-9424 www.veritext.com 212-490-3430CwpP, Page 74 | Cross - Roland Orange 1 Q. Did you ever write any of the 2 procedural manuals which may or may not be in 3 place in different ports regarding care of cargo (4 within that port? 5 A. No. | 6 Q._ Did you ever read one? 71 A. Ihave read the warning requirements 8 and the advisories as you go into ports, yeah. | 9 Q. I'm sony, say that again. 110 A. Ihave read the warnings and a precautions as you enter ports in China. 12 Q. Did you ever read any books, manuals, 13 which talk about the security requirements to be 14 exercised in a Chinese port? 15 A. Similar to the rest of the world with 16 the ISPS code. \17 Q. My question was: Did you read one 18 that was prepared for use in a Chinese port? 19 A. Not specifically for a Chinese port. 20 Q. Now, there are two places in your )21 report where you use the word "opinion." One is | 22 in Paragraph 4.4 where you say, "In my opinion, | 23 Gerald did not do anything wrong and neither did | 24 then there is Paragraph 4.15. Would you Page 15 Cross - Roland Orange just turn to Paragraph 4.15 for me? MR. BERRINGER: You are also ignorin; Paragraph 4 which states "opinion" and which I read to include all of the statements in Section 4. MR. TISDALE: Okay. Your objection is’ noted. MR. BERRINGER: I know you are not trying to mischaracterize the report, but that's the way I read it. MR. TISDALE: Mm-hmm. Q. Captain Orange, are you rendering an opinion here that Gerald's cargo was stolen? A. From the information I received, that's my opinion, yes. Q. So just based upon the information you received, it's your opinion that the cargo was stolen? A. And the fact that there was no cargo presented to be seen. 21 Q. Meaning when you went in September of 22 Pees eee eee SSCRIAIDAURHBNHNH-SeCMmIDAUVEWNHE 2019, you didn't see any cargo? 123 A. Yes. (24 that visit to the warehouse | 25 Other th Page 76 Cross - Roland Orange | in September of 2019, you did no independent investigation into this alleged theft of cargo off the Qingdao Pier, correct? A. Yes. Q. Am I correct in saying that -- if this cargo was stolen, when was it stolen? MR. BERRINGER: Beyond the scope of | his expert report. That would be speculation. I can't -- You don't know? I d