Elite Aviation Service, LLC v. Ace Pools, LLC et al
OPINION and ORDER denying 81 Motion in Limine. Signed by Honorable P. K. Holmes III on September 14, 2020. (src)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ELITE AVIATION SERVICE, LLC
ACE POOLS, LLC and
OPINION AND ORDER
Before the Court is Plaintiffs’ renewed motion (Doc. 81) in limine to exclude Defendants’
expert witness, Jason Zilberbrand, and brief in support (Doc. 82). Defendants filed a response
(Doc. 91) and brief in opposition (Doc. 91). For the reasons set forth below, the motion will be
Rule 702 of the Federal Rules of Evidence states “[a] witness who is qualified as an expert
by knowledge, skill, experience, training, or education may testify in the form of an opinion . . . .”
Fed. R. Evid. 702. “Rule 702 does not rank academic training over demonstrated practical
experience.” David E. Watson, P.C. v. United States, 668 F.3d 1008, 1014 (8th Cir. 2012) (citing
United States v. Roach, 644 F.3d 763, 764 (8th Cir. 2011)). “[F]or an expert to be qualified based
on experience, that experience must bear a close relationship to the expert’s opinion.” Schmidt v.
City of Bella Vista, 557 F.3d 564, 571 (8th Cir. 2009) (citation omitted). The Court must determine
if the testimony is reliable and relevant, and
[t]o satisfy the reliability requirement, the party offering the expert testimony must
show by a preponderance of the evidence both that the expert is qualified to render
the opinion and that the methodology underlying his conclusions is scientifically
valid. To satisfy the relevance requirement, the proponent must show that the
expert’s reasoning or methodology was applied properly to the facts at issue.
Thomas v. FCA US LLC, 242 F. Supp. 3d 819, 822-23 (8th Cir. 2017) (citations and quotations
omitted). “Rule 702 has been characterized as one of admissibility rather than exclusion . . . [and]
rejection of expert testimony is the exception rather than the rule.” Id. “The primary concern of
Rule 702 is the underlying principles and methodology utilized by the expert, rather than the
expert’s conclusions.” Id. at 823 (citing Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012)).
“Generally, the ‘factual basis of an expert opinion goes to credibility of the testimony, not
admissibility, and it is up to the opposing party to examine the factual basis for the opinion in
cross-examination.’” David E. Watson, 668 F.3d at 1014 (quoting Neb. Plastics Inc. v. Holland
Colors Ams., Inc., 408 F.3d 410, 416 (8th Cir. 2005)). “Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Thomas, 242 F. Supp. 3d at 824
(citation omitted). “When the district court sits as the finder of fact, there is less need for the
gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself . . . [therefore],
we relax Daubert’s application for bench trials.” David E. Watson, 668 F.3d at 1015 (citing In re
Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (quotations omitted)).
Mr. Zilberbrand’s proffered opinion is on the appraisal value of the aircraft, a 1985 Cessna
182 tail number N9493X (the “Aircraft”), at the center of the litigation. Elite argues Mr.
Zilberbrand is not qualified to act as an expert because he has no formal education, nor does he
have experience with single-propeller aircraft. For the past 26 years, Mr. Zilberbrand has worked
in various aspects of the aircraft industry, including aircraft appraisals. From 1994-2004, Mr.
Zilberbrand was the vice president of sales at Jet Support Services, Inc., which performed
maintenance on turbine-powered aircraft. From 2004-2014, Mr. Zilberbrand was president of The
Jet Collection, an airplane brokerage firm. From 2014-2018 Mr. Zilberbrand was the president of
Aurum Jets where he brokered pre-owned aircraft sales. Currently, Mr. Zilberbrand is the
President and CTO of VREF Aircraft Value Reference & Appraisal Service (“VREF”). At VREF,
Mr. Zilberbrand is responsible for performing aircraft appraisals. Additionally, Mr. Zilberbrand
is a Senior Certified Aircraft Appraiser with the National Association of Aircraft Appraisers and
holds an Accredited Senior Appraiser certification from the American Society of Appraisers. It is
apparent from his experience that he is familiar with market considerations affecting the cost of
turbine-engine aircraft, and nothing in the record indicates that any differences in the propellordriven aircraft market are substantive. Defendants have shown by a preponderance of the evidence
that Mr. Zilberbrand has such experience in aircraft and aircraft appraisals to render him qualified
to give an expert opinion on the value of the Aircraft.
Elite also argues Mr. Zilberbrand’s methodology is invalid.
The report states Mr.
Zilberbrand used the sales comparison or market approach to determine the fair market value of
the Aircraft. The market approach examines the selling price of similar aircrafts and adjusts the
price as needed to reflect distinguishing features of the aircraft being appraised. Using the market
approach, Mr. Zilberbrand gave the Aircraft a baseline value of $160,000 based on the selling
prices of similar Cessna 182s, then increased the baseline value because of certain upgrades the
Aircraft had gone through. Based on those upgrades and the baseline value, Mr. Zilberbrand gave
the Aircraft a fair market value of $349,150.29 prior to the work performed by Elite. However,
due to the damage to the Aircraft allegedly caused by Elite, Mr. Zilberbrand’s report reduced the
Aircraft’s value to $0. His testimony explained his opinion that the Aircraft has no value because
the Aircraft is not airworthy and a full restoration is required to return the Aircraft to service. The
Court finds the market approach used by Mr. Zilberbrand is a valid methodology.
Elite further argues Mr. Zilberbrand’s opinions are not relevant because they are not
properly applied to the facts. Although Mr. Zilberbrand did not personally inspect the Aircraft,
his testimony and report demonstrate he examined photographs, parts of the logbook, and
interviewed persons with knowledge of the plane. Although Elite argues Mr. Zilberbrand’s did
not accurately apply all the facts, Elite can attack Mr. Zilberbrand’s application through crossexamination at trial. See Thomas, 242 F. Supp. 3d at 824 (explaining cross-examination is an
appropriate way of attacking “shaky” evidence). At the gatekeeping stage, the Court finds Mr.
Zilberbrand has adequately applied the methodology to the facts. Plaintiff may pursue this
argument at trial.
Finally, Elite argues Mr. Zilberbrand’s testimony should be excluded because he failed to
submit a Rule 26 compliant report. Federal Rules of Civil Procedure Rule 26(a)(2) requires an
expert report to be disclosed and the report must contain
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them; (ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them; (iv) the witness’s
qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and (vi) a statement of the compensation to be
paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). The purpose of the report requirements is to allow the opposing party
to attack the expert’s credibility and opinion. If a party fails to disclose information required by
Rule 26(a), the party is not allowed to use that information at trial unless the failure is substantially
justified or harmless or, instead, the court may impose other appropriate sanctions. Fed. R. Civ.
P. 37(c)(1). Although Mr. Zilberbrand’s report did not contain all of the Rule 26(a)(2)(B)
requirements, the Court will allow the information at trial, but will keep Defendants’ failure to
submit a Rule 26 compliant report in mind pursuant to Fed. R. Civ. P. 37(c)(1)(C).
IT IS THEREFORE ORDERED that Plaintiff’s motion (Doc. 81) is DENIED. Plaintiff
may renew the motion arguing Mr. Zilberbrand has not reliably applied the principles and methods
to the facts of the case, under Federal Rules of Evidence Rule 702(d) at trial.
IT IS SO ORDERED this 14th day of September, 2020.
/s/P. K. Holmes, ΙΙΙ
P.K. HOLMES, III
U.S. DISTRICT JUDGE
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