United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge.
matter comes before the court on plaintiff hibu, Inc.'s
motion to exclude defendant Chad Peck's expert Rodney
Sowards pursuant to Federal Rule of Evidence 702 (Dkt. 284).
Plaintiff claims that certain opinions of Sowards's are
not supported by sound accounting principles or accepted
scientific methods, are outside Sowards's expertise,
and/or are based on insufficient data or incorrect facts. For
the reasons stated below, plaintiff's motion is denied in
part and granted in part. Sowards's opinions concerning
plaintiff's expectation that the six sale representatives
would remain employed with plaintiff and severance are
inadmissible. Sowards's remaining opinions are admissible
seeks damages from five categories:
• lost revenue or lost profits from April 1, 2016, to
March 31, 2017, for print services and from January 1, 2016,
to December 31, 2016, for digital services;
• damage to corporate goodwill, which quantifies the
reduction in the value of plaintiff's business caused by
defendant's alleged wrongful actions;
• training and recruitment costs, which cover the direct
costs incurred by plaintiff in connection with recruiting,
hiring, and training sales employees to replace the six
former sales representatives that defendant solicited to Dex
• cover damages, which include costs related to the
deployment of plaintiffs sales representatives from other
markets to cover those canvasses and sales closes that should
have been handled by the six former sales representatives
that defendant solicited to Dex Media; and
• defendant's severance benefits
retained Sowards as its damages expert. Sowards disagrees
with several of plaintiff's claims for damages and
asserts that different calculations are warranted to
accurately reflect plaintiff's actual losses resulting
from defendant's actions.
Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579
(1993), the Supreme Court instructed that district courts are
to perform a “gatekeeping” role concerning the
admission of expert testimony. See Id. at 589-93;
see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S.
137, 147-48 (1999). If scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to
the facts of the case. Fed.R.Evid. 702.
court first considers whether the witness is qualified by
“knowledge, skill, experience, training, or
education” to render expert opinions. Id.
Second, the court determines whether the witness's
opinions are “reliable” under the principles set
forth in Daubert and Kumho Tire. See
Ralston v. Smith & Nephew Richards, Inc., 275 F.3d
965, 969 (10th Cir. 2001). The rejection of expert testimony
is the exception rather than the rule. See Fed. R.
Evid. 702 advisory comm. notes. The court has
“considerable leeway in deciding in a particular case
how to go about determining whether particular expert
testimony is reliable.” See Kumho Tire, 526
U.S. at 152.