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HIBU, Inc. v. Peck

United States District Court, D. Kansas

December 28, 2017

HIBU, INC., Plaintiff,
v.
CHAD PECK, Defendant.

          MEMORANDUM AND ORDER

          J. Thomas Marten, Judge.

         This 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 at trial.

         I. Background

         Plaintiff 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 Media;
• 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

         Defendant 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.

         II. Legal Standards

         In 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.

         The 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.

         III. ...


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