United States District Court, W.D. Missouri, Western Division
ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE THE
EXPERT REPORT AND TESTIMONY OF ROGER LEVY
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT.
case concerns allegations Defendants violated various
provisions of the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et
seq. Plaintiffs are former employees of Defendants'
and participated in the company's 401(k) retirement plan.
Plaintiffs allege Defendants, in their roles as employer,
plan sponsor, plan fiduciary, and investment manager of the
funds in the plan, breached their duties of loyalty and
prudence and caused the retirement plan to pay excessive
before the Court is Defendants' motion to exclude the
expert report and testimony of Roger Levy (Doc. 140),
Plaintiffs' expert witness related to the standard of
care. For the reasons below, the motion is DENIED.
to the First Amended Complaint (Doc. 28), Plaintiffs assert
claims against Defendants, the fiduciaries of the American
Century Retirement Plan (the “Plan”), for breach
of fiduciary duty and engaging in prohibited transactions
under ERISA. Pertinent to this motion, from the beginning of
the class period until September 2016, Defendants maintained
a menu of investment options for the Plan that consisted
exclusively of proprietary American Century funds. Plaintiffs
allege these proprietary funds underperformed relative to
their marketplace competitors and charged higher than average
investment management fees. Plaintiffs allege these actions
breached the duties of loyalty and prudence under ERISA.
Levy's proposed testimony concerns prudent retirement
plan fiduciary practices. Mr. Levy's experience includes
30 years' in fiduciary consulting including consulting
with retirement plan sponsors and investment advisors. He has
a Masters of Laws degree and has been designated an
Accredited Investment Fiduciary Analyst. Additionally, he has
published articles on the topic of fiduciary best practices
and lectures on the topic at industry conferences.
Levy opines that the Plan's fiduciaries did not act in a
manner consisted with prudent fiduciary practices based on
his experience in the fiduciary industry. In his analysis, he
provides examples of conduct by the Plan's fiduciaries
that do not meet the applicable standard of care. This is the
first case Mr. Levy has testified as an expert witness.
expert witness may testify if he satisfies four general
requirements. First, he must be “qualified as an expert
by knowledge, skill, experience, training, or
education.” Fed.R.Evid. 702. Second, his expert
testimony must “help the trier of fact to understand
the evidence or to determine a fact in issue.”
Fed.R.Evid. 702(a). Third, the expert's testimony must
reflect reliable and scientifically valid reasoning and
methodology. Fed.R.Evid. 702(c); Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592-94 (1993). Fourth, the
expert must have “reliably applied the principles and
methods” to “sufficient facts or data.”
Fed.R.Evid. 702(b), (d).
party seeking admission of expert testimony has the burden of
establishing admissibility by a preponderance of the
evidence. Lauzon v. Senco Prods., Inc., 270 F.3d
681, 686 (8th Cir. 2001). A court should exclude expert
testimony “only if it is so fundamentally unsupported
that it can offer no assistance to the jury.”
Johnson v. Mead Johnson & Co., 754 F.3d 557, 562
(8th Cir. 2014).
seek to exclude Mr. Levy's testimony and expert report
because: (1) his opinions are legal conclusions; (2) he is
not qualified by education and experience to give opinions on
the standard of care in this particular case; (3) his
opinions are baseless; and (4) some of his opinions are
contrary to the facts in the record. In a Daubert
motion, first the Court must determine whether Mr. Levy is
qualified to give the opinions he propounds and second must
determine if his opinions are reliable given the methods used
and heir factual basis.
addressing Mr. Levy's qualifications, Defendants assert
several of Mr. Levy's opinions are impermissible legal
conclusions. The Court agrees Mr. Levy may not testify
as to legal conclusions. In re Acceptance Ins. Co.
Securities Litigation, 423 F.3d 899, 905 (8th Cir. 2005)
(finding district court did not err in excluding expert
affidavits that were “more or less legal
conclusions” about the facts of the case). However,
after reviewing the paragraphs highlighted by Defendants, the
Court holds these opinions are not legal conclusions.
Mr. Levy is qualified to testify on the ...