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Lawn Managers, Inc. v. Progressive Lawn Managers, Inc.

United States District Court, E.D. Missouri, Eastern Division

September 28, 2017

LAWN MANAGERS, INC., Plaintiff,
v.
PROGRESSIVE LAWN MANAGERS, INC., Defendant.

          MEMORANDUM AND ORDER

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE

         This action is before the court on the motion of defendant Progressive Lawn Managers, Inc., to strike the report of plaintiff's expert Fernando Torres. (Doc. 66). Plaintiff opposes this motion. (Doc. 73). The court held a hearing on the matter on September 11, 2017.

         Legal Standard

         Federal Rule of Evidence 702 allows a witness who qualifies as an expert by knowledge, skill, experience, training, or education to testify in the form of an opinion or otherwise about scientific, technical, or other specialized knowledge. Fed.R.Evid. 702. Expert opinion testimony must pass threshold standards of reliability and relevance. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The inquiry of Rule 702 is a flexible one, id. at 594 n. 12, but the Daubert court identified five important considerations relevant in determining whether these standards are met.

         First, the evidence must be scientific, technical, or otherwise specialized. Fed.R.Evid. 702. Opinion evidence is “scientific” if it is grounded in the methods and procedures of science. Daubert, 509 U.S. at 589-90. Second, the evidence must be “knowledge” and not mere “subjective belief or unsupported speculation.” Id. at 590. This means that the subject of scientific testimony must be derived by the scientific method. Id. Third, Rule 702 requires that the evidence be relevant in the sense that it is helpful to the trier of fact to decide a fact at issue. Id. at 591, 592. Fourth, if the expert opinion is based on evidence that is inadmissible, the opinion may be admitted only if this evidence is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject.” Id. at 595 (citing Fed.R.Evid. 703). Fifth, the trial court must determine whether the expert's reasoning and methodology are reliable, i.e., (a) whether they can be and have been tested; (b) whether they have been submitted to peer review and publication; (c) whether the asserted scientific technique has a known or potential rate of error; and (d) whether the asserted technique is generally accepted in the scientific community. Id. at 593-94.

         These can be summarized in Rule 702's post-Daubert amendment, which requires expert evidence be (a) such that it "will help the trier of fact to understand the evidence or to determine a fact in issue;" (b) "based on sufficient facts or data;" (c) "the product of reliable principles and methods;" and (d) an application of "the principles and methods to the facts of the case." Fed.R.Evid. 702 (2011). The Eighth Circuit has identified further factors that are relevant in determining reliability: the extent to which an opinion was developed for litigation as opposed to naturally flowing from an expert's research and the extent to which the proposed expert eliminated alternative explanations in reaching his or her conclusions. See Sappington v. Skyjack, Inc., 512 F.3d 440, 449 (8th Cir. 2008) (citing Lauzon v. Senco Prods., Inc., 270 F.3d 681 (8th Cir. 2001).

         The proponent of the expert evidence must show that it is reliable and would be helpful to the finder of fact, and that the expert is qualified to be a witness under Rule 702. Fed.R.Evid. 104(a); Fed.R.Evid. 702 advisory-committee's note. The expert must explain how he developed his opinions. Fed.R.Evid. 702 advisory-committee's note. An expert's opinion is subject to being rejected if it is substantially based upon the expert's subjective belief or unsupported speculation. Estate of Claison L. Groff v. Aquila, Inc., 2007 WL 4644707, at *9 (S.D. Iowa 2007) (e.g., ruling expert opinion not admissible as unsupported and speculative regarding size of natural gas leak and that the hole through which the gas escaped "could have or must have closed during shipment of the furnace").

         While the district court focuses on an expert's principles and methodology, expert conclusions may also factor into the admissibility calculus. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). A court may conclude that there is “simply too great an analytical gap” between a proffered opinion and the data in a case, and it is within the court's discretion to conclude that data relied upon is not sufficient to support an expert's conclusions. Id. A court is not required “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Id. And, finally, “expert testimony on legal matters is not admissible. Matters of law are for the trial judge[.]” See Southern Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003) (citations omitted).

         Report

         The expert report at issue is dated September 27, 2016; is 19 pages long; and contains information about Mr. Torres's assignment, his qualifications, the background of the case, an assessment of damages, and prejudgment interest. His report concludes with a summary of his opinions, the attachment of exhibits, and several appendices. (Doc. 30-3). Fernando Torres's Summary of Opinions is as follows:

Upon reviewing the documentation listed in Appendix B to this report, performing independent research, as well as reviewing the relevant documentation produced in connection with the case, I arrived at the following conclusions regarding the alleged damages in this matter, the bases for which are explained in the preceding sections of this report.
1. Defendant's infringing revenues for the period January 1, 2015 through 2016 are [ ].
2. Economic damages in the form of a disgorgement of the Defendant's profits for the period January 1, 2015 through min-2016 reflecting Progressive's estimated EBITDA margin [ ] amount to no less than [ ].
3. Economic damages in the form of lost profits are quantifiable at a rate of no less than [ ] per new account/year for ...

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