Porters Building Centers, Inc. v. Sprint Lumber, Inc.

       IN THE UNITED STATES DISTRICT COURT FOR THE                   
             WESTERN DISTRICT OF MISSOURI                            
                   ST. JOSEPH DIVISION                               

PORTERS BUILDING CENTERS, INC., )                                         
                         )                                           
          Plaintiff,     )                                           
                         )                                           
vs.                           )    Case No. 16-06055-CV-SJ-ODS            
                         )                                           
SPRINT LUMBER, et al.,        )                                           
                         )                                           
          Defendants.    )                                           

ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART           
   PLAINTIFF’S MOTION TO STRIKE, AND (2) GRANTING IN PART            
   AND DENYING IN PART DEFENDANTS’ MOTION TO EXCLUDE                 

Pending are Plaintiff’s Motion to Strike (Doc. #260), and Defendants’ Motion to 
Exclude (Doc. #261).  For the following reasons, both motions are granted in part and 
denied in part.                                                           

                  I.   GOVERNING LAW                                 
The admission of expert testimony is governed by Rule 702 of the Federal Rules 
of Evidence.                                                              
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 or to determine a fact in 
issue; (b) the testimony is based on sufficient facts or data; (c) the 
testimony is the product of reliable principles and methods;  and (d) the 
expert has reliably applied the principles and methods to the facts of the 
case.                                                                

Fed. R. Evid. 702.  The district court must make a “preliminary assessment of whether 
the reasoning or methodology underlying the testimony is scientifically valid and of 
whether that reasoning or methodology can be applied to the facts in issue.”  Daubert v. 
Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993).  The Court uses a three-part 
test when determining the admissibility of expert testimony:              
First, evidence based on scientific, technical, or other specialized 
knowledge must be useful to the finder of fact in deciding the ultimate 
issue of fact.  This is the basic rule of relevancy.  Second, the proposed 
witness must be qualified to assist the finder of fact.  Third, the proposed 
evidence must be reliable or trustworthy in an evidentiary sense, so that, if 
the finder of fact accepts it as true, it provides the assistance the finder of 
fact requires.                                                       

Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and 
citations omitted).  “Courts should resolve doubts regarding usefulness of an expert’s 
testimony in favor of admissibility.”  Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 
758 (8th Cir. 2006) (citations omitted).                                  

                    II.  DISCUSSION                                  
                   A. Plaintiff’s Expert                             
Plaintiff designated Steve Browne as its expert.  Browne is a certified public 
accountant, financial analyst, and fraud examiner.  He holds undergraduate degrees in 
accounting and finance, and a master’s degree in economics.               

                  (1) Causation Opinions                             
Defendants argue Browne should not be permitted to express opinions about 
what caused Plaintiff’s damages because opinions on causation implicate a question of 
law.  Defendants also maintain Browne, an accountant, is not an expert on what former 
employees may legally do with respect to former employers’ customers.1    
Plaintiff intends to call Browne to opine on Plaintiff’s damages, and the cause(s) 
of Plaintiff’s damages.  Browne’s opinions are based upon his knowledge and 
experience, his review of documents produced during the course of this matter, 
deposition testimony, Sprint Lumber’s point of sales database, preliminary injunction 
briefing and exhibits, Defendants’ responses and answers to discovery, and 
Defendants’ expert’s report.  Doc. #262-1.  The Court believes Browne is qualified to 
provide opinions about Plaintiff’s damages and the cause(s) of those damages.  The 
                                                                          
1 Although they make this argument with regard to Plaintiff’s expert, Defendants argue 
their expert’s opinions regarding causation and lost profits are admissible.  Doc. #283, 
at 2.  Defendants state “[c]ausation is a question of fact in tort cases,” and their expert’s 
“causation opinion would not invade the Court’s role in deciding questions of law and 
instructing the jury.”  Id.                                               
Court also finds that Browne’s opinions, if accepted as true, will assist the jury.  See 
Synergetics, Inc. v. Hurst, 477 F.3d 949, 955-56 (8th Cir. 2007) (finding the district court 
did not abuse its discretion in allowing an expert to testify about lost sales).  Browne will 
be permitted to offer opinions on Plaintiff’s damages, and causation of damages.  In this 
regard, Defendants’ motion is denied.                                     
Browne, however, will not be permitted to offer opinions about what employees 
can or cannot do legally.  Expert testimony on legal matters is inadmissible.  S. Pine 
Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003).  
The evil to be avoided is having the expert offer legal conclusions on issues that will be 
the subject of the Court’s instructions to the jury.  See United States v. Wells, 83 F.3d 
745, 753 (8th Cir. 1995), reversed on other grounds, 519 U.S. 482 (1997); United States 
v. Klaphake, 64 F.3d 435, 438-39 (8th Cir. 1995).  Expert testimony instructing the jury 
as to legal principles governing a case is not helpful, and invades the Court’s 
responsibility to instruct the jury on such issues.  The jury will be instructed on at least 
one legal duty employees have, i.e., duty of loyalty.  Browne will be prohibited from 
opining about what the duty of loyalty is.  In this regard, Defendants’ motion is granted. 

               (2) Insufficient Facts and Data                       
Defendants argue Browne’s testimony should be excluded because his opinions 
are not based upon sufficient facts and data.  The subject customers executed affidavits 
stating they left Plaintiff on their own volition and in accordance with their desire to 
continue working with the former employees.  Based upon these affidavits, Defendants 
posit Browne’s opinion is unsupported because it contradicts the customers’ affidavits, 
and is based upon speculation.                                            
 “As a general rule, the factual basis of an expert opinion goes to the credibility of 
the testimony, not the admissibility, and it is up to the opposing party to examine the 
factual basis for the opinion in cross-examination.”  Synergetics, 477 F.3d at 955-56 
(citations omitted).  An expert opinion should be excluded only if that “opinion is so 
fundamentally unsupported that it can offer no assistance to the jury.”  Id. at 956 
(citation omitted); see also W. Plains, L.L.C. v. Retzlaff Grain Co., No. 16-2650, 2017 
WL 3722458, at *8 (8th Cir. Aug. 30, 2017).  A party’s dispute with an expert’s 
methodology or the facts or documents upon which the expert relied (or did not rely) 
does not result in exclusion of the expert’s testimony.  EFCO Corp. v. Symons Corp., 
219 F.3d 734, 739 (8th Cir. 2000) (finding the district court did not err in admitting 
experts’ conflicting testimonies, and leaving the jury to decide which expert’s theory was 
sounder).  The disagreeing party should utilize cross-examination to attack the expert’s 
testimony.  Synergetics, 477 F.3d at 956 (citations omitted).             
The Court has reviewed Browne’s reports and his deposition testimony.   The 
Court finds Browne is qualified to render an opinion about Plaintiff’s damages, and the 
cause(s) of the damages.  His opinion is based upon numerous types of evidence, 
which are set forth in his reports.  Further, Browne’s opinions are not “so fundamentally 
unsupported,” and the Court believes his opinions could assist the jury.  For these 
reasons, Defendants’ motion to exclude on this basis is denied.           

                  B. Defendants’ Expert                              
Defendants designated John Ward, Ph.D., as their expert.  Dr. Ward is, among 
other things, a forensic economist and professor of economics.  He holds a doctoral 
degree in economics.                                                      

                   (1) Legal Conclusions                             
Plaintiff argues Dr. Ward’s testimony should be excluded because he determined 
only one basis for liability could result in damage to Plaintiff.  Plaintiff also maintains Dr. 
Ward should not be permitted to opine as to what conduct by employee or customer 
results in liability.                                                     
Applying the standard set forth supra, section II(A)(1), Dr. Ward may opine about 
why he believes Plaintiff has not suffered damages, and why Browne’s opinions are 
incorrect and/or unsupported.  But Dr. Ward will not be permitted testify about what 
employee or customer conduct results in liability under the law because such testimony 
invades instructions that will be given to the jury.  Plaintiff brings several claims, and the 
legal basis for liability under those claims will be provided in instructions to the jury.  For 
the foregoing reasons, Plaintiff’s motion to exclude on this basis is granted to the extent 
set forth above.                                                          
          (2) No Specialized Knowledge or Expertise                  
Plaintiff argues Dr. Ward should be excluded from testifying because he relied 
solely on the subject customers’ affidavits, and as such, he did not apply specialized 
knowledge or expertise.  This argument tests the factual basis of Dr. Ward’s opinion.  
For the reasons set forth supra, section II(A)(2), Plaintiff’s motion to exclude Dr. Ward’s 
testimony on this basis is denied.                                        

 (3) Exceeds Qualifications, Unsupported, Unreliable, or Speculation 
Plaintiff moves to strike Dr. Ward’s opinions that it is common sense that a 
customer would move with a salesperson to a new job, or it is reasonable to assume 
Porters and Sprint Lumber have a thorough knowledge about their competitors and 
customers.  Plaintiff also moves to strike Dr. Ward’s opinions about why the former 
employees resigned from Porters and went to Sprint Lumber.  Plaintiff argues these 
opinions exceed Dr. Ward’s qualifications, are unsupported or unreliable, or are 
speculation.  The Court agrees.  Dr. Ward will not be permitted to offer these opinions.  
Plaintiff’s motion to strike is granted in this regard.                   

                  (4) Disclaimed Opinion                             
Finally, Plaintiff moves to strike a statement in Dr. Ward’s report that he later 
disclaimed during his deposition.  Defendants did not raise any opposition to this portion 
of Plaintiff’s motion.  For good cause stated and without objection, the Court grants 
Plaintiff’s motion to exclude in this regard.                             

                   III.  CONCLUSION                                  
For the foregoing reasons, the parties’ motions to strike or exclude are granted in 
part and denied in part.                                                  

IT IS SO ORDERED.                                                         

                              /s/ Ortrie D. Smith                               
                              ORTRIE D. SMITH, SENIOR JUDGE          
DATE:  October 2, 2017             UNITED STATES DISTRICT COURT