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Gunn v. Carter

United States District Court, D. Colorado

June 17, 2015

BEN GUNN, and JENNIFER GUNN, Plaintiffs,
v.
WILLIAM C. CARTER, Defendant, WCA LOGISTICS, LLC, and WCA LOGISTICS II, LLC, Defendants/Third-Party Plaintiffs,
v.
JOHN E. BREEN, Third-Party Defendant.

ORDER GRANTING IN PART THIRD-PARTY DEFENDANT'S MOTION TO STRIKE EXPERT REPORTS

WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on Third-Party Defendant John E. Breen's ("Breen") Motion to Strike Expert Reports ("Motion"). (ECF No. 142.) For the reasons set forth below, the Motion is granted in part and denied in part.

I. BACKGROUND

On December 5, 2013, Defendants WCA Logistics, LLC and WCA Logistics II, LLC (together "Defendants") filed a Third-Party Complaint against Breen alleging legal malpractice, among other claims. (ECF No. 19.) Defendants subsequently amended their Third-Party Complaint against Breen to include counts of legal malpractice, negligence per se, breach of fiduciary duty, breach of the duty of loyalty, fraud, and civil conspiracy. (ECF No. 53 at 13-20.)

Defendants allege that, approximately ten years ago, Breen began representing WCA Logistics, LLC ("WCA") as legal counsel "on a regular basis" in litigation and transactional matters. ( Id. ¶¶ 13-14.) Beginning in June 2012, Breen served as the exclusive legal counsel and Chief Operating Officer of WCA. ( Id. ¶¶ 15-16.) On September 20, 2012, Breen incorporated WCA Logistics II, LLC ("WCA II") ( Id. ¶ 51), and thereafter served as legal counsel to both WCA and WCA II ( Id. ¶ 24).[1] In mid-2012, WCA and Breen became interested in buying a competing company and setting up a network of freight brokerages in several states. ( Id. ¶ 26.) Breen accordingly contacted Plaintiffs Ben and Jennifer Gunn regarding their desire to sell Armada Logistics, Inc. ("Armada"). ( Id. ¶ 30.) Defendants state that WCA II, through Breen, thereafter executed an "Asset Purchase Agreement" with Plaintiffs for the purchase of Armada without the knowledge or approval of WCA's management team. ( Id. ¶¶ 52-54.) Defendants further allege that Breen failed to conduct sufficient due diligence on the Armada acquisition. ( Id. ¶¶ 40-42.)

On February 14, 2013, Breen tendered his resignation as an employee of Defendants. ( Id. ¶ 73.) Breen allegedly continued to communicate with Mr. Gunn regarding WCA, assisted Plaintiffs in finding a Colorado attorney to represent them in this matter, communicated with Plaintiffs and their attorney about possible legal claims Plaintiffs could assert against Defendants, and drafted a complaint on Plaintiffs' behalf substantially similar to that filed in this matter. ( Id. at ¶¶ 75-82.)

On February 23, 2015, Breen filed the instant Motion, which challenges the reports of Defendants' designated experts, Shan Scott and David Rickert. Defendants offer Mr. Scott and Mr. Rickert as experts regarding Breen's alleged misconduct during the Armada acquisition and his ethical lapses thereafter. ( See ECF Nos. 142-1 & 142-2.)

II. LEGAL STANDARD

A district court must act as a "gatekeeper" in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which provides:

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 ...

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