United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
the Court is Defendants' Daubert Motion in
Limine and Motion to Strike Report of Terry J. Westemeir
[Doc. No. 64], filed pursuant to Fed.R.Civ.P. 26(a)(2) and
Fed.R.Evid. 702. Defendants seek to exclude all testimony
of Plaintiff's accounting expert, Terry J. Westemeir,
because his report fails to satisfy the disclosure
requirements of Rule 26(a)(2)(B). Further, Defendants assert
that any testimony regarding the subject matter suggested by
the report - the financial and economic impact of publishing
the magazine article underlying Plaintiff's false light
invasion of privacy claim - is inadmissible because Mr.
Westemeir is not qualified as an expert in that area, he
discloses no particular methodology for formulating his
opinions, and his testimony would be irrelevant to the trial
issues. Plaintiff has filed a timely response [Doc. No. 68],
and Defendants have replied [Doc. No. 74]. The Motion is
fully briefed and ripe for decision.
cited in the Motion but argued in the supporting brief,
Defendants first seek an order excluding evidence pursuant to
Fed.R.Civ.P. 37(c)(1). See Defs.' Mot. at 4.
This rule provides: “If a party fails to provide
information or identify witnesses as required by Rule 26(a)
or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless.” Defendants argue that Mr. Westemeir fails to
disclose his expert opinions as required by Rule 26(a)(2)(B),
and that Plaintiff has no justification for the nondisclosure
and has prejudiced Defendants' ability to prepare a
defense. This aspect of Defendants' Motion is subject to
LCvR37.1, which provides: “With respect to all motions
. . . relating to discovery pursuant to Fed.R.Civ.P. 26
through 37 and 45, the court shall refuse to hear any such
motion or objection unless counsel for the movant first
advises the court in writing that counsel personally have met
and conferred in good faith and, after a sincere attempt to
resolve differences, have been unable to reach an
accord.” Defendants' Motion fails to comply
with LCvR37.1, and therefore, the Court declines to consider
their request for a discovery sanction under Rule 37.
to Defendants' Daubert Motion, Plaintiff relies
solely on the substance of Mr. Westemeir's report to
satisfy Plaintiff's burden under the Federal Rules of
Evidence to establish the admissibility of his expert's
opinions. See United States v. Nacchio, 555 F.3d
1234, 1241 (10th Cir. 2009) (en banc) (“The proponent
of expert testimony bears the burden of showing that its
proffered expert's testimony is admissible.”).
Thus, the alleged deficiencies in Mr. Westemeir's report
are pertinent to the Court's analysis of Defendants'
Motion, and a discussion of them is useful for this purpose.
Westemeir prepared a report in the form of a letter to
Plaintiff's counsel dated June 5, 2017, which was the
final deadline for Plaintiff's expert disclosures.
See 3/15/17 Order [Doc. No. 47]. In the introductory
paragraph, Mr. Westemeir states:
It is my understanding that discovery in this matter is
ongoing and much of the information necessary for me to
conduct my analysis is not yet available. Therefore, I am
submitting this as a preliminary report and reserve the right
to amend this report, as necessary, as additional information
and data become available.
See Def.'s Mot., Ex. 1 [Doc. No. 64-1] at
Then, after stating background information regarding Sports
Illustrated Magazine (apparently obtained from internet
websites, such as Wickipedia, see id., Ex. A), and
setting out a press release regarding the subject article,
Mr. Westemeir states he has requested certain categories of
information “[t]o perform my analysis and give opinion
on the economic and financial impact of publishing the
five-part SI investigative report” underlying
Plaintiff's tort claim. Id. at 5. Mr. Westemeir
proceeds by presenting a two-paragraph statement of
“Analysis and Conclusion, ” which states in full
My analysis of the financial and economic impact of the
publication of the five-part “The Dirty Game”
investigative report (the “SI Report”) on Time,
Inc. and SI is incomplete.
Information received will be analyzed to determine the effect
of the promotion and publication of the SI Report on
subscriptions, rack sales and advertising. Specifically,
• Analysis of subscription data will be designed to
ascertain, conclude and opine on whether the SI Report had
the effect of increasing or maintaining subscription levels.
• Analysis of subscription and rack sale data will be
designed to ascertain, conclude and opine on whether SI sales
were enhanced by the promotion and publication of the SI
• Analysis of the financial data will be designed to
ascertain, quantify, conclude and opine on the enhancement
and contribution of profitability realized by the promotion
and publication of the SI Report both in terms of the impact
of the publication of the individual installments of the SI
Report and in terms of the general enhancement and
contribution to earnings.
• Analysis of advertising revenue and rate card data,
for the SI Report and SI weekly issues, will be designed to
ascertain, quantify, conclude and opine on the impact of
advertising dollars gained by SI by promotion and publishing
of the SI Report and determination and quantification of any
short-term and/or long-term impact of advertising rates and
revenues achieved by SI.
• Analysis of financial and advertising data will be
designed to ascertain, quantify, conclude and opine on the
impact of the SI Report on the print versions (parts one ...