United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants PNC Bank, N.A. and
National City Bank, N.A.'s (collectively
“PNC”) Motion to Exclude the Opinions of Rodney
Loomer. ECF No. 3013. The motion is fully briefed and ready
cause of action commenced on August 6, 2009, alleging
violations of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961-1968,
violations of the Lanham Act, 15 U.S.C. §§
1051-1141n, state law claims concerning intentional and
negligent fraudulent misrepresentations, negligence and gross
negligence, breach of fiduciary duties, and violations of the
Texas Receivership Act, Tex. Ins. Code §§
443.202-443.205. The action concluded on July 3, 2019, when
after a bench trial, the Court found Defendants liable for
breach of fiduciary duty by a trustee. ECF No. 2953 pp.
265-278. That same date the Court entered judgment in favor
of Plaintiffs and against Defendants PNC in the amount of
$102, 135, 293.07. ECF No. 2954. The Court issued an Amended
Judgment on December 4, 2019 entering a total amount of
damages of $99, 497, 290.24. ECF No. 3035.
obtaining judgment in their favor, Plaintiffs filed a Bill of
Costs and a Motion for Award of Attorneys' Fees. ECF Nos.
2962, 2965. PNC moved to defer ruling on Plaintiffs'
motions for costs and attorneys' fees pending the outcome
of its appeal to the Eighth Circuit Court of Appeals. ECF No.
2973. On August 19, 2019, the Court denied PNC's motion
to defer ruling and issued a Scheduling Order setting forth a
discovery and briefing schedule related to Plaintiffs'
Bill of Costs and Motion for Award of Attorneys' Fees.
ECF No. 2985. The Court further announced it would award
attorneys' fees and costs to the Plaintiffs, “but
only after August 17, 2017, the date of the Eighth
Circuit's remand to this Court.” ECF No. 2985 p. 2.
completion of the deposition of Plaintiffs' expert,
Rodney E. Loomer, regarding the reasonableness of
Plaintiffs' requested legal fees, PNC filed the present
motion to exclude Mr. Loomer's opinions under
Daubert because his opinions (1) include fees for
unsuccessful claims; (2) fail to include any independent
review to verify accuracy; and (3) are flawed because the
bills are riddled with errors and redundancies. ECF No. 3013.
Plaintiffs respond PNC's motion is without merit and
should be denied.
admission of expert testimony in federal court is governed by
Rule 702 of the Federal Rules of Evidence. A district court
acts as a “gatekeeper” when screening expert
testimony for relevance and reliability. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993);
Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th
Cir. 2012). The trial court has broad discretion concerning
the admission of expert testimony, and such decisions will
not be overturned on appeal absent an abuse of discretion.
Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293,
296 (8th Cir. 1996). All doubts regarding the usefulness of
an expert's testimony should be resolved in favor of
admissibility. Marmo v. Tyson Fresh Meats, Inc., 457
F.3d 748, 758 (8th Cir. 2006) (citation omitted).
motion to exclude the opinions of Rodney Loomer, PNC claims
the opinions are unreliable because they include unsuccessful
claims; Mr. Loomer did not review any actual bills or analyze
the billing spreadsheets for accuracy but instead blindly
relied on the representations of counsel for the Plaintiffs;
and the bills contain errors and redundancies rendering Mr.
Loomer's opinions “fundamentally flawed.” In
response, Plaintiffs contend Mr. Loomer's testimony
comports with the law under the Missouri Uniform Trust Code
(“MUTC”) and common law in equity. Plaintiffs
further assert Mr. Loomer relied on the type of
contemporaneous billing records endorsed by federal courts,
and any inaccuracies account for less than 1% of the total
bill requested. Plaintiffs argue, contrary to PNC's
position, auditing perfection is not the applicable standard
for an award of attorneys' fees or reliance on expert
outset, the Court notes the arguments contained in PNC's
motion to exclude are also set forth in its opposition to
Plaintiffs' Amended Motion for Attorneys' Fees and in
PNC's Motion to Strike Plaintiffs' Motion for
Attorneys' Fees. These motions are still pending.
Further, PNC has presented its own expert, Thomas E. Wack,
who issued a comprehensive report regarding attorneys'
fees in this matter. Mr. Wack thoroughly assessed Reilly
Pozner's billing entries and Mr. Loomer's expert
report, and he recalculated Mr. Loomer's fee estimates.
ECF No. 3011-1.
entertaining a motion for attorneys' fees, “[t]he
trial court is presumed to know ‘the character of the
services rendered in duration, zeal, and ability.'”
Waller v. Blast Fitness Grp., LLC, No. 4:15CV00586
AGF, 2017 WL 6731721, at *3 (E.D. Mo. Dec. 29, 2017) (quoting
Ferguson v. Curators of Lincoln Univ., 498 S.W.3d
481, 498 (Mo.Ct.App. 2016)). Further, the trial court is
considered an expert under Missouri law for setting
attorney's fees, and it may accordingly determine the
amount of attorneys' fees without the aid of evidence.
Id. (citation omitted); see also W. Blue Print
Co., LLC v. Roberts, 367 S.W.3d 7, 23 (Mo. 2012)
(“The [trial] court is deemed an expert at fashioning
an award of attorneys' fees and may do so at its
Mr. Loomer's report may be of assistance, the Court is
the expert on fees and may determine the amount of fees with
or without the aid of outside expert opinion. Hazelcrest
III Condo. Ass'n v. Bent, 495 S.W.3d 200, 209
(Mo.Ct.App. 2016). Because this Court tried the case and is
acquainted with all the issues involved, it has discretion to
assess the evidence and arguments in support, and in
opposition, of Plaintiffs' motion for attorneys' fees
when calculating the amount of fees to award, including the
evaluation of expert testimony. Id. Based upon the
foregoing, Court will deny PNC's motion to exclude Rodney
Loomer's opinions regarding attorneys' fees.
IT IS HEREBY ORDERED that Defendants PNC
Bank, N.A. and National City Bank, N.A.'s Motion to
Exclude the ...