Customs Lawyer Can't Testify as Expert Witness on 'Reasonable Care' in Penalty Case, CIT Says

An importer facing stiff penalties for an alleged antidumping duty evasion scheme can’t bring in a customs lawyer as an expert witness to testify that it exercised “reasonable care,” the Court of International Trade said in a March 2 decision. Whether Univar’s conduct met the “reasonable care” standard is a legal question, and inviting the customs lawyer to testify on that issue would be improperly taking that decision away from the judge and jury, CIT said.

That lawyer, Michael O’Rourke of Sandler Travis, would have testified on what the reasonable care standard would have been for an importer during the relevant period, based on a review of CIT decisions, CBP informed compliance publications, CBP rulings and “his personal interaction with importers and CBP employees.” He would have then testified whether Univar acted reasonably in light of that standard, CIT said.

O’Rourke would have said that there “is no bright line test for reasonable care” and that the “totality of circumstances” should be considered. He would have concluded that “'[g]iven the full set of circumstances ... and after reviewing Univar’s practices, actions, deposition testimony and Exhibits, and CBP publications, Court Decisions and CBP rulings cited above, it is my opinion that Univar acted as a reasonable importer,'” CIT said, quoting the customs lawyer’s report.

For expert testimony to be admissible, “it must be reliable, relevant, and helpful to the trier of fact,” CIT said. “An expert testifying on what the law is or directing the finder of fact how to apply the law to facts is not helpful to the trier of fact,” the court said. “Because it is the role of the court to determine the law and instruct the jury as to the appropriate standard, Mr. O’Rourke’s report exceeds the scope of permissible expert testimony ... and must be excluded,” CIT said. “Moreover, Mr. O’Rourke’s opinion that Univar acted with reasonable care must also be excluded because it invades the province of the jury’s fact-finding function.”

The Section 1592 penalty case alleges Univar was grossly negligent when it imported transshipped saccharin from Taiwan that actually originated in China, resulting in non-payment of AD duties. The government seeks $36,088,718.03 in unpaid AD duties and a penalty of $47,888,851 for misrepresenting the country of origin of the entries.

In the same opinion, CIT denied Univar’s motions to exclude the testimony of an economist that Univar’s saccharin likely did not originate in Taiwan, as well as to exclude a report provided by Taiwan customs purporting to show the saccharin was imported from China before re-exportation to the U.S. Discovery is already complete in the case, and Univar has filed a motion for judgment. CIT will next “address the summary judgment motion,” it said.

(U.S. v. Univar USA, Slip Op. 18-14, CIT # 15-00215, Judge Barnett)