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Spencer v. Walker

United States District Court, D. Colorado

May 30, 2017

ANTONY SPENCER, et al., Plaintiffs,
CODY WALKER, Defendant.


          RAYMOND P. MOORE United States District Judge.

         Pending before the Court is defendant Cody Walker's (“defendant”) motion to strike testimony of Steven Shuster (“Shuster”) (ECF Nos. 72, 73). Plaintiffs Antony Spencer (“Spencer”) and Laurie Bene' Rolfe Spencer (collectively, “plaintiffs”) have responded in opposition to the motion (ECF No. 86), and defendant has filed a reply in support (ECF No. 87). The Court makes the following findings.

         I. Legal Standard

         Rule 702 of the Federal Rules of Evidence (“Rule 702”) governs the admission of expert evidence in federal court. Fed.R.Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167 (1999). Rule 702 provides as follows.

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 Court's role in considering proposed expert evidence is one of a “gatekeeper.” Kumho Tire, 526 U.S. at 147. Factors that might be relevant in carrying out this role include: (1) whether a theory or technique can be or has been tested; (2) whether a theory or technique has been subjected to peer review and publication; (3) whether there is a high known or potential rate of error to a technique and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant community. Id. at 149-150. These factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Id. at 150 (quotation omitted).

         The proponent of expert evidence bears the burden of establishing its admissibility. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).

         II. Discussion

         Defendant objects to the admission of testimony from Thomas for four principal reasons: (1) Shuster's opinions are not based upon specialized knowledge; (2) Shuster's opinions are unreliable; (3) Shuster's opinions will not help the trier of fact; and (4) Shuster's opinions would be prejudicial. (ECF No. 72 at 5-18.) Plaintiffs respond that the motion to strike should be denied because (1) the motion is untimely, (2) Shuster was hired to compile data from multiple sources to calculate an overarching damages figure, (3) defendant's objections go to the weight of Shuster's testimony, rather than its admissibility, and (4) Shuster's testimony relates to a relevant issue in this case, and thus, is helpful. (ECF No. 86 at 2-8.)

         The Court believes it need spend little time on whether Shuster's testimony and report warrant admission as expert evidence under Rule 702 because Shuster himself has answered that question. Specifically, in a memorandum dated June 20, 2016 (ten days before the date of the most recent of Shuster's two reports)[1], Shuster stated that, “[f]rom the perspective of a financial expert witness, [he] needs more supporting documents especially quantifiable proofs to back up these oral testimonies.” (ECF No. 72-8 at 1-2.) Shuster concluded his memorandum as follows: “Shuster is trying to emphasize that the deposition records are insufficient for a financial expert to prove and calculate the economic loss.” (Id. at 3.) In other words, based upon Shuster's own statements, he would not want his own report considered as expert evidence to prove and calculate plaintiffs' economic loss. There really is little more that need be said, but the Court will say more just so some of the problems with Shuster's reports are recorded.

         First, Shuster's calculation of Spencer's lost advisory fee income. Everything seems fine with Shuster's calculation in that, as Shuster states, it is “pretty straight forward” to multiply 75, 000 by 5, and then perform a currency conversion. (See ECF No. 72-5 at 1.) The problem is that, that calculation is pretty straightforward and can be performed by a juror. There is no need for Shuster to do it for the jury. Shuster adds to the loss of advisory fee income Spencer's cost in allegedly having to hire people due to Spencer's incapacity. The cost of hiring extra individuals, as Shuster states, is “substantiated by invoices” (see id.), so, again, the jury can perform the rudimentary calculation of adding the total amount of however many invoices there may be. In any event, Shuster provides no explanation for why each of the individuals listed in the report were hired due to Spencer's incapacity, especially given that one of the individuals was paid for services rendered nearly a year after Spencer's injury and another was paid for services ranging from over one year to over two years after the injury. (See ECF No. 72-2 at 7.)

         Second, Shuster's calculation of Spencer's lost income in acquiring a partner's shares in various entities held by Spencer and the partner. Shuster states that Spencer agreed to purchase the shares in June 2011 for nearly three million pounds, but, due to Spencer's incapacity, the shares were not bought until September 2015 for a little over five million pounds, resulting in a loss to Spencer of roughly $3.3 million. (Id. at 7-8.) Missing from this analysis is why Spencer did not close on his deal between June 2011 and the date of the injury in December 2012. Shuster states the problem very well himself: “We probably need to get some clarification of why this sale did not happen between 2010 and the time of the accident.”[2] (See ECF No. 72-7 at 2.)

         Third, Shuster's calculation of Spencer's medical expenses. As one might expect with medical expenses, the amounts listed in Shuster's report are “[s]ubstantiated by invoices.” (See ECF No. 72-5 at 1.) Again, the question is why can a jury not perform the simple arithmetic of adding together all of Spencer's medical expenses? The ...

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