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Southampton, Ltd. v. Salalati

United States District Court, W.D. Oklahoma

August 2, 2017

SOUTHAMPTON, LTD. and SOUTHWEST REINSURANCE, INC., Plaintiffs,
v.
VAHID SALALATI, GREGORY LUSTER, and ROGER ELY, Defendants.

          ORDER

          VICKI MILES-LAGRANGE UNITED STATES DISTRICT JUDGE

         Before the Court is defendants' Daubert Motion and Motion to Strike Plaintiffs' Identified Expert Witnesses, filed July 3, 2017. On July 21, 2017, plaintiffs filed their response. Based upon the parties' submissions, the Court makes its determination.

         On June 5, 2017, plaintiffs filed their list of expert witnesses, including Bill Bigley and Emmett Rice. Plaintiffs state that Mr. Bigley will provide expert testimony regarding basic corporate financial documents (i.e., tax returns, bank statements, and balance sheets) and how to interpret what those documents reveal. Plaintiffs further state that Mr. Rice is a highly respected car dealer in Amarillo and was one of the potential bidders for the assets held in receivership at issue in this case.

         Defendants now move this Court to strike Mr. Bigley and Mr. Rice and preclude them from testifying at trial. Specifically, defendants contend that these witnesses should be stricken because plaintiffs failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B). Defendants further contend that these witnesses should be stricken pursuant to Federal Rules of Evidence 620, 701, and 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny.

         A. Failure to provide an expert report pursuant to Rule 26(a)(2)(B)

         Rule 26(a)(2)(B) provides, in pertinent part:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. . . .

Fed. R. Civ. P. 26(a)(2)(B).

         Defendants assert that Mr. Bigley and Mr. Rice were required to provide an expert report pursuant to Rule 26(a)(2)(B) and that they failed to do so.[1] Defendants, therefore, contend that Mr. Bigley and Mr. Rice should be stricken as expert witnesses in this case. Having carefully reviewed the parties' submissions, the Court finds that neither Mr. Bigley nor Mr. Rice were required to provide an expert report. Specifically, the Court finds that Mr. Bigley is an employee of plaintiffs who is not regularly involved in giving expert testimony and, thus, an expert report by Mr. Bigley is not required under Rule 26(a)(2)(B). The Court further finds that Mr. Rice has not been retained or specially employed by plaintiffs to provide expert testimony in this case and, thus, an expert report by Mr. Rice is not required under Rule 26(a)(2)(B). Accordingly, the Court finds that Mr. Bigley and Mr. Rice should not be stricken on this basis.

         B. Daubert challenge

         Defendants assert that plaintiffs' experts' opinions fall short of the requirements of Rule 702 and Daubert because (1) both Mr. Bigley and Mr. Rice have no specialized training or experience which qualifies them to provide expert testimony on the relevant issues in this case, and (2) Mr. Bigley's and Mr. Rice's opinions are not based on personal knowledge, are unreliable and unfairly prejudicial, and do not assist the trier of fact. Federal Rule of Evidence 702 governs the admissibility of expert testimony based upon scientific, technical, or other specialized knowledge. It provides:

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence ...

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