CALDERWOOD & HARKNESS LLP Attorneys at Law
200 Park Avenue, 38th Floor New York, New York 10166
Patrick Gallagher Lead Associate, Litigation (General) Direct Tel: (212) 584-7230 Direct Fax: (212) 584-7001
Email: pgallagher@calderwoodharkness.com
Calderwood & Harkness Matter No. 1012-00005
August 25, 2023
VIA ELECTRONIC DELIVERY, SHARED DOCUMENT PLATFORM, AND OVERNIGHT COURIER
Jason Whitford, Esq. Senior Associate Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006
Re: Vantor Holdings Corp. v. Stonefield Logistics Group Inc. Case No. 22-cv-07841 (S.D.N.Y.) Service of Defendant's Rebuttal Expert Report of Dr. Evelyn Rosser
Dear Mr. Whitford:
On behalf of our client, Defendant Stonefield Logistics Group Inc. ("Stonefield" or "Defendant"), we write to advise you that this letter accompanies the formal service of the Rebuttal Expert Report of Dr. Evelyn Rosser, Ph.D., Managing Director of Kensington Analytics Group LLC, prepared and submitted on behalf of Defendant Stonefield Logistics Group Inc. Service of this rebuttal expert report is being made pursuant to the Case Management Order entered by the Honorable Margaret T. Calloway, United States District Judge, on February 17, 2023 (Dkt. No. 34), which established the overall expert discovery deadline of January 12, 2024, and set forth the schedule governing the exchange of initial and rebuttal expert reports in this matter. The enclosed report is served specifically in rebuttal to the expert report of Dr. Philip Trask of Trask Greystone & Associates, which was served by counsel for Plaintiff Vantor Holdings Corp. ("Vantor" or "Plaintiff") on May 15, 2023.
Description of Enclosed Report
Enclosed herewith for service upon Plaintiff, please find the document entitled "Rebuttal Expert Report of Dr. Evelyn Rosser, Ph.D., Regarding Damages in *Vantor Holdings Corp. v. Stonefield Logistics Group Inc.*" (the "Report" or "Rebuttal Report"), dated August 25, 2023. The Report consists of forty-eight (48) pages of substantive text, together with supporting exhibits, appendices, and related materials as more fully described below.
The Report was prepared by Dr. Evelyn Rosser, Ph.D., in her capacity as Managing Director of Kensington Analytics Group LLC, located at 1700 Market Street, Suite 2800, Philadelphia, Pennsylvania 19103. Dr. Rosser was assisted in the preparation of this Report by Michael Chung, Senior Analyst at Kensington Analytics Group LLC. The qualifications of Dr. Rosser, including her educational background, professional experience, publications, and prior testimony history, are set forth in detail in her curriculum vitae, which is enclosed herewith as Exhibit B.
Summary of Report Scope and Opinions
Without waiving any applicable privilege, work-product protection, or trial strategy, and solely for the purpose of providing a general overview of the enclosed materials, the scope and subject matter of Dr. Rosser's Rebuttal Report may be summarized as follows:
1. Damages Claims Addressed. The Report addresses the damages claims asserted by Plaintiff Vantor Holdings Corp. and its subsidiary Vantor Transport Services LLC ("VTS"), which collectively seek damages totaling approximately $95.4 million, as set forth in the Amended Complaint (Dkt. No. 18) and as quantified in the expert report of Plaintiff's damages expert, Dr. Philip Trask of Trask Greystone & Associates. Dr. Rosser examines and rebuts the methodologies, assumptions, data inputs, and conclusions underlying Dr. Trask's damages analysis.
2. Liquidated Damages Analysis. Dr. Rosser opines on the enforceability and reasonableness of the liquidated damages calculation advanced by Plaintiff under Section 14.2 of the Transportation Services Agreement dated March 15, 2019 (Contract Reference No. SLG-VTS-2019-0315) (the "TSA"). In particular, Dr. Rosser analyzes whether the liquidated damages provision in Section 14.2 constitutes a reasonable forecast of just compensation or, alternatively, operates as an unenforceable penalty under applicable law and well-established economic principles.
3. Alternative Damages Calculations. Dr. Rosser provides alternative damages calculations under various scenarios, including detailed analyses of lost profits, mitigation efforts and failures, and applicable offsets and credits. These alternative calculations are presented to demonstrate the range of damages, if any, that could reasonably be attributed to the conduct at issue in this litigation.
4. Market Conditions and Failure to Mitigate. The Report includes a comprehensive analysis of prevailing market conditions in the transportation and logistics sector during the relevant period, VTS's financial condition and operational performance, and VTS's failure to undertake reasonable steps to mitigate its alleged damages. Dr. Rosser identifies specific opportunities for mitigation that were available to VTS and that VTS failed to pursue, and she quantifies the impact of such failures on the damages claimed.
The full substance of Dr. Rosser's opinions, including the bases and reasons therefor, the data and other information considered, and any assumptions made, is set forth in the enclosed Rebuttal Report and its supporting appendices. Defendant respectfully directs Plaintiff's counsel to the Report itself for a complete statement of Dr. Rosser's findings and conclusions.
Enclosures and Attachments
The following materials are enclosed herewith and served concurrently with this letter:
Exhibit A: Rebuttal Expert Report of Dr. Evelyn Rosser, Ph.D., Regarding Damages in Vantor Holdings Corp. v. Stonefield Logistics Group Inc., dated August 25, 2023 (48 pages, plus exhibits and appendices).
Exhibit B: Curriculum Vitae of Dr. Evelyn Rosser, Ph.D.
Exhibit C: List of all materials considered by Dr. Rosser in forming her opinions, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(ii), including but not limited to documents, data, deposition transcripts, and other information reviewed in connection with the preparation of the Rebuttal Report.
Exhibit D: List of all cases in which Dr. Rosser has testified as an expert at trial or by deposition within the preceding four years, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(v).
Exhibit E: Compensation Disclosure. Dr. Rosser is being compensated at an hourly rate of $625.00 per hour for her services in this matter. Mr. Michael Chung, Senior Analyst, is being compensated at an hourly rate of $375.00 per hour. Neither Dr. Rosser's nor Mr. Chung's compensation is contingent upon the outcome of this litigation or the substance of the opinions rendered.
Method of Service
Service of this letter and the enclosed materials is being effectuated by three methods: (i) electronic delivery via email to you at your email address of record at Caldwell Royce & Shapiro LLP; (ii) uploading to the shared document platform established by the parties for the exchange of discovery materials and expert reports in this matter; and (iii) delivery of a hard copy of all enclosed materials via overnight courier to Caldwell Royce & Shapiro LLP, 1 Liberty Plaza, 22nd Floor, New York, New York 10006. The overnight courier delivery is expected to arrive on or before August 28, 2023.
Reservation of Rights
Defendant Stonefield Logistics Group Inc. expressly reserves the right to supplement, amend, or correct Dr. Rosser's Rebuttal Report as permitted by the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 26(e), and by the Court's Case Management Order, including but not limited to supplementation based upon additional discovery, depositions of fact or expert witnesses, the production of additional documents or data by any party, or further expert analysis undertaken by Dr. Rosser or other qualified experts retained by Defendant. This reservation extends to any supplementation that may be necessitated by changes in the factual record, the receipt of additional information from Plaintiff or third parties, or any rulings by the Court on pending or future motions.
Defendant further reserves the right to call Dr. Evelyn Rosser as a witness at trial, at any hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and at any other proceeding in this matter, and to offer her testimony in any form permitted by the Federal Rules of Evidence and the Federal Rules of Civil Procedure.
Availability for Expert Deposition
Dr. Rosser will be made available for deposition at a mutually convenient time and location in accordance with the expert discovery schedule set forth in the Case Management Order, which establishes an expert discovery deadline of January 12, 2024. We respectfully request that opposing counsel contact the undersigned directly to coordinate the scheduling of Dr. Rosser's deposition. We are prepared to work cooperatively with your office to identify dates and a location that accommodate the schedules of all involved parties and counsel.
Closing
We respectfully request that you acknowledge receipt of this letter and the enclosed materials at your earliest convenience. Should you have any questions regarding the enclosed Rebuttal Report or any of the accompanying exhibits and appendices, please do not hesitate to contact me directly at the telephone number or email address listed above.
Please be advised that copies of this letter and all enclosed materials are being retained in the files of Calderwood & Harkness LLP in accordance with the firm's document retention policies and the obligations of the parties under the applicable preservation orders and discovery rules.
We thank you for your attention to this matter.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Patrick Gallagher Lead Associate, Litigation (General) Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Tel: (212) 584-7230
Email: pgallagher@calderwoodharkness.com
cc: (via email)
Samuel Eklund, Esq. — Calderwood & Harkness LLP (Responsible Partner)
Harrison Caldwell, Esq. — Caldwell Royce & Shapiro LLP (Lead Litigation Partner for Plaintiff Vantor Holdings Corp.)
Meredith Shapiro, Esq. — Caldwell Royce & Shapiro LLP (Co-Counsel for Plaintiff)
Alina Petrov, Esq. — Caldwell Royce & Shapiro LLP (Associate)
Tobias Wren, Esq. — General Counsel, Stonefield Logistics Group Inc. (Client — for information only)
Enclosures (as listed above)