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Case 1:06-cv-00305-MBH Document 89 Filed 11/22/2007 Page 1 of 2

No. 06-305 T

(Judge Marian Blank Horn)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS



CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC. & SUBSIDIARIES

v.

THE UNITED STATES,



Plaintiff,

Defendant.

RESPONSE OF THE UNITED STATES TO PLAINTIFF’S MEMORANDUM IN OF

ORAL MOTION TO LIMIT USE OF DEPOSITION TRANSCRIPT EXCERPTS IN THE

EXPERT REPORT OF SAMUEL RAY



Plaintiff’s submitted an unfiled Memorandum in support of its ore tenus Motion to limit

the Court’s use of deposition transcript excerpts incorporated in the expert report of Samuel Ray.

Plaintiff, without explanation, has chosen not to file and docket its Memorandum. Plaintiff does

not take issue with Mr. Ray’s use of information, but rather are concerned about the Court’s

reliance on the information despite the fact that Plaintiff had the opportunity to cross-examine

Mr. Ray with regard to the information and challenge, if appropriate, its accuracy. In fact,

Plaintiff chose to do so with respect to the testimony of Mr. Mintun, questioning Mr. Ray about

the impact other sections of Mr. Mintun’s deposition transcript had on his view of those sections

cited in his report. Plaintiff chose not to question Mr. Ray concerning his reliance on the

testimony of Mr. DePlautt, Ms. McCartney or Ms. Freilich during its cross-examination.



Case 1:06-cv-00305-MBH Document 89 Filed 11/22/2007 Page 2 of 2

Plaintiff’s own experts have also relied quite extensively (and properly) on information

not in the record and not otherwise admissible.1 The information in Mr. Ray’s reports, like the

information relied upon by Plaintiff’s experts, is not, of itself, offered as substantive evidence in

this case. However, such information is integral to an understanding of the opinions of the

experts, including Mr. Ray.



Respectfully submitted,

s/ David N. Geier
DAVID N. GEIER

Attorney of Record
U.S. Department of Justice, Tax Division
Post Office Box 26
Washington, D.C. 20044
Telephone: (202) 616-3448
Facsimile: (202) 307-0054

DAVID GUSTAFSON

STEVEN I. FRAHM

Chief, Court of Federal Claims Section

Assistant Chief, Court of Federal Claims Section

JOSEPH A. SERGI
ADAM R. SMART
KAREN M. GROEN
Trial Attorneys

November 22, 2007

1Plaintiff's experts have referred to and indeed at times quoted from materials not in

evidence in this case. See, e.g., Report of Roman L. Weil, Exhibit 10077 at notes 33, 43, page
20272, and n. 55. Similarly, see the Report of A.J. Goulding (Exhibit 10074) in which he cites
to numerous materials not offered into evidence. Id. at n.15, 20, 25 and 36 (the latter two in
which Goulding relied on an interview conducted by a subordinate with a third party). These
references are only offered by way of example and are certainly not meant to be exhaustive of
the point.



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