ROMANO et al v. John Hancock Life Insurance Company (USA)

Filing 338

Omnibus Order on the Parties' Daubert Motions. Signed by Magistrate Judge Jonathan Goodman on 5/9/2022. See attached document for full details. (dw00)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 19-21147-CIV-GOODMAN
[CONSENT CASE]
ERIC ROMANO, et al.,
Plaintiffs,
v.
JOHN HANCOCK LIFE INS. CO. (USA),
Defendant.
_____________________________________/
OMNIBUS ORDER ON THE PARTIES’ DAUBERT MOTIONS1
“For every expert, there is an equal and opposite expert.”
-

Sir Arthur C. Clarke (author of 2001: A Space Odyssey and co-writer of the
screenplay for a film by the same name)

“People who have expertise just love to share it. That’s human nature.”
-

David Baldacci (attorney and bestselling American novelist)

The phrase “leave it to the experts”2 is used to invoke the idea that people should

Initial Note: The Undersigned previously uploaded a version of this Order under
seal so that the parties could propose redactions, if necessary. [ECF No. 330]. At the
Undersigned’s direction, Defendant filed a version of the Order containing its proposed
redactions. [ECF No. 335; 335-1]. Because the Undersigned denied Defendant’s requested
redactions [ECF No. 337], this public version of the Order is uploaded in whole and is
substantively identical to the under-seal version.
1

How to Pack for Children? Leave It to the Experts, NEW YORK TIMES (December 17,
2019), https://www.nytimes.com/2019/12/17/travel/family-travel.html (last visited March
2

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follow the guidance of those with an expertise in the subject matter. When building a
bridge or a skyscraper, it is best to use expert architects and engineers for design and
construction decisions. When victimized by a cyber-security attack, it is best to seek
advice from computer information technology experts. When confronted with a patient
suffering from appendicitis, it is necessary to leave the medical response to an expert
surgeon.
The law accepts the premise underlying this “leave-it-to-the-experts” view. The
law allows experts to testify and provide expert opinions when a case intertwines with
the subject matter of their expertise. On issues of the law, however, the fact finder does
not need a party’s expert to explain legal intricacies to her; the Court comes equipped
with its own expert on these issues -- the Judge.

18, 2022); What NFL Commissioner Roger Goodell needs to do now to help end the lockout,
WASHINGTON POST (September 25, 2012), https://www. washingtonpost.com/national/onleadership/what-nfl-commissioner-roger-goodell-needs-to-do-now-after-seahawks-pack
ers-game/2012/09/25/f8c3194c-072f-11e2-afff-d6c7f20a83bf_story.html (assessing the
validity of an alleged blown referee call during a referee-focused labor dispute, stating
“I’ll leave it to the experts to describe what happened”) (last visited March 21, 2022);
Warm, wise musical about mental illness, CHICAGO TRIBUNE, https://digitaledition.
chicagotribune.com /tribune/ article_popover.aspx? guide=6 065bca4-6759-4259-b61a05cea919f8f1 (stating that it would be best to “leave it to the experts” in evaluating the
accuracy of a bi-polar character’s portrayal of somebody suffering from the illness) (last
visited March 21, 2022); The Experts, WALL STREET JOURNAL, https://www.wsj.
com/news/experts (a series of articles by “a group of industry and academic thought
leaders who weigh in on topics covered in The Journal Report”) (last visited March 21,
2022).
2

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It is well settled that experts are not permitted to offer legal conclusions as
opinions. On questions of the law, the fact finder does not look to the parties, the lawyers,
or the witnesses for the answers; she looks to only the Court.
Despite this no-legal-opinions principle, Plaintiffs’ and Defendant’s experts each
offer legal conclusions grounded in either the Internal Revenue Code or ERISA.3 To be
sure, both sides appear aware that the other side’s experts have offered legal conclusions
as opinions because the parties have sought to exclude multiple opinions on this basis.
Remarkably, though, each side argues that its own expert’s opinion on the same issues is
somehow not an impermissible legal conclusion. So both sides are engaging in what is
informally known as “the-pot-calling-the-kettle-black” strategy.
As will be discussed in this Order, these types of legal opinions -- regardless of
which side the conclusion benefits -- are impermissible. In addition to challenging the
opposition’s expert for providing legal opinions, both sides also raise other concerns
about the opposition’s expert. This Order will address those, as well.

Overall Background
Plaintiffs Eric and Todd Romano, trustees of an ERISA-defined contribution plan
(“the Romanos” or “Plaintiffs”), filed a two-count lawsuit against Defendant John

3

ERISA is the Employment Retirement Income Security Act of 1974.
3

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Hancock Life Ins. Co. (USA) (“John Hancock”), which sold them, as trustees of a 401(k)
Plan, a Group Variable Annuity Contract. Plaintiffs sued on behalf of a putative class of
persons who owned variable annuity contracts from John Hancock. The Court granted
Plaintiffs’ motion for class certification [ECF Nos. 295; 307]. Plaintiffs’ counsel was
required to send notice to all potential class members by March 15, 2022. [ECF No. 315].
The deadline for potential class members to opt out was April 29, 2022. Id.
In support of their claims, Plaintiffs enlisted the following four experts: (1) Bruce
Pingree, a retired attorney currently offering expert witness and benefits consulting
services [ECF No. 260-1]; (2) Roger Levy, a former attorney and current fiduciary
assessment analyst for the Center of Fiduciary Excellence (“CEFEX”) [ECF No. 257-1]; (3)
Barry Mukamal, a Certified Public Accountant (“CPA”) and co-managing partner at
KapilaMukamal, LLP [ECF No. 259-1]; and (4) Dr. Lisa De Simone, an Associate Professor
of Accounting at the McCombs School of Business at the University of Texas at Austin
[ECF No. 258-1].
In support of its position, Defendant enlisted the following two experts: (1) Dr.
David LaRue, an Emeritus Professor of the University of Virginia, who taught graduate
and undergraduate courses in the fields of federal taxation, financial accounting,
international finance, and economic analysis [ECF No. 264-2]; and (2) Steven Gissiner, a
retirement plan administration and plan specifics consultant [ECF No. 265-2].
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Both parties filed Daubert4 motions seeking to exclude either the entirety of, or
some opinions from, the opposing party’s experts’ reports. Each Daubert motion has been
fully briefed with a response and a reply. In addition, the Undersigned held a more than
five-hour hearing on the individual Daubert motions and Defendant’s pending Motion
for Summary Judgment.5 [ECF Nos. 293; 313].6
For the reasons outlined below, the Undersigned grants Defendant’s Motion to
Exclude the Testimony of Bruce Pingree [ECF No. 260]; grants in part and denies in part
Defendant’s Motion to Exclude the Testimony of Roger Levy [ECF No. 257]; denies
Defendant’s Motion to Exclude the Testimony of Barry Mukamal [ECF No. 259]; grants
in part and denies in part Defendant’s Motion to Exclude the Testimony of Dr. Lisa De
Simone [ECF No. 258]; grants in part and denies in part Plaintiffs’ Motion to Exclude the
Testimony of Dr. David LaRue [ECF No. 264]; and grants in part and denies in part

4

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

The Undersigned’s ruling on Defendant’s Motion for Summary Judgment will be
in a separately-issued Order.
5

“Daubertizing” is “an informal term lawyers sometimes use when referring to
efforts designed to challenge (and ultimately exclude) the other side from offering expert
witness opinion testimony at trial (or in connection with a summary judgment motion).”
Carido v. Whet Travel, No. 16-23658, 2018 WL 1367444, at *1 (S.D. Fla. Mar. 16, 2018). As
explained by the Whet Travel Court, “[i]n some cases, both sides engage in Daubertizing.”
(emphasis in original)). That is the scenario here, where there is a substantial amount of
Daubertizing in multiple motions filed by both sides.
5
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Plaintiffs’ Motion to Exclude the Testimony of Steven Gissiner [ECF No. 265].
I.

PLAINTIFF’S CLAIMS AND INTRODUCTION
The Romanos jointly own Romano Law PL (“Romano Law”). In 2014, Plaintiffs

established a 401(k) plan for Romano Law: the Romano Law PL 401(k) Plan (the “Plan”).
The Romanos named themselves trustees of the Plan, and they engaged Christian Searcy,
Jr. (“Searcy”) to recommend service providers and investments for the Plan, among other
responsibilities.
John Hancock is an insurance company that, relevant to this case, offers
recordkeeping services to 401(k) plans. The retirement product at issue is the John
Hancock Signature product, which is provided through a group variable annuity
contract.
In connection with establishing the Plan, the Romanos entered into a group
variable annuity contract (“GAC” or “Contract”) and a Recordkeeping Agreement
(“RKA”) with John Hancock to provide “administrative and recordkeeping services” and
a platform of investment options for the Plan.
The Contract provided Plaintiffs, on behalf of their Plan, with access to John
Hancock separate accounts, which could then be used as the Plan’s funding mechanism.
An insurance company separate account is “an accounting entity created by and under
the control of an insurance company.” John Hancock was the legal owner of the assets
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held in the separate accounts. Each separate account is divided into sub-accounts, and
each sub-account serves as a “conduit” vehicle to allow investment in a pre-specified
mutual fund.
Certain sub-accounts available under the Contract use mutual funds that invest in
foreign securities. Investments in foreign securities may be assessed income or related
taxes by the country of domicile (foreign taxes) on income linked to those investments.
U.S. taxpayers who accrue or pay foreign taxes to a foreign country on income that is also
subject to U.S. taxes may, under certain circumstances, be able to take a foreign tax credit
(“FTC”) against their U.S. tax liability, I.R.C. §§ 27, 901–09, or, alternatively, deduct such
amount from their U.S. taxable income.
Upon Searcy’s recommendations, the Romanos selected some of these funds.
The foreign taxes paid by John Hancock that are at issue in this case, and that are
factored into the determination of the FTCs, involve foreign taxes paid by retirementplan-funded mutual funds owned by John Hancock separate accounts which are deemed
paid by John Hancock pursuant to Internal Revenue Code provisions applicable
specifically to mutual funds and their shareholders.
During certain years at issue in this case, John Hancock, as owner of the mutual
fund shares held in the separate accounts, qualified for offsetting FTCs.
At bottom, Plaintiffs allege that John Hancock improperly “took” the FTCs by not
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disclosing its FTC use and by not returning or refunding or crediting those amounts back
to them. Although Plaintiffs themselves could not have used the FTCs, they argue that
John Hancock should have somehow passed on to them the financial benefit of the FTCs
through a rebate or credit.
Plaintiffs bring two ERISA counts against John Hancock. Count I alleges a breach
of the “fiduciary duty of loyalty” by “receiving and retaining Plan Foreign Tax Credits
for [John Hancock’s] own benefit, and by failing to appropriately disclose its retention of
Plan Foreign Tax Credits . . . .” [Compl. ¶ 63, ECF No. 1]. Count II alleges violations of
two prohibited transaction provisions, ERISA §§ 406(b)(1) and (b)(3), 29 U.S.C. §§
1106(b)(1) and (b)(3), also relating to FTCs. Id. ¶¶ 67-73.
Plaintiffs ask the Court to require John Hancock to “make good to the Plan all
losses to the Plan” and “damages paid to the Plan.” Id. (prayer for relief ¶¶ C and H).
They also seek an imposition of a constructive trust as to amounts by which John Hancock
was allegedly “unjustly enriched,” and “equitable restitution and disgorgement.” Id.
(prayer for relief ¶¶ D and E).
Plaintiffs withdrew their requests for injunctive and declaratory relief. [ECF No.
152]. They also withdrew their demand for an Order permitting the withdrawal of any
and all amounts payable under the Contract without imposition of a surrender fee.
Guided by this backdrop, each side has filed reports from multiple experts seeking
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to offer opinions on topics such as FTCs, the Internal Revenue Code, ERISA, the
retirement fund industry, recordkeeping practices, and damages calculations. Many of
these experts have authored both affirmative and rebuttal reports. And all of these experts
are subject to a Daubert challenge by the opposing party.
II.

LEGAL FRAMEWORK
The district court has “broad discretion in determining whether to admit or

exclude expert testimony, and its decision will be disturbed on appeal only if it is
manifestly erroneous.” Evans v. Mathis Funeral Home, 996 F.2d 266, 268 (11th Cir. 1993).
Federal Rule of Evidence 702 governs the admission of expert testimony, as explained
and refined by the United States Supreme Court in Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 582 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Under
this framework, district courts are charged with a gatekeeping function “to ensure that
speculative, unreliable expert testimony does not reach the jury.” McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).
Rule 702 provides that:
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;
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(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.
To fulfill its obligation under Daubert, a trial court engages in a three-part inquiry:
(1) whether the expert is qualified to testify competently; (2) whether the methodology
used to reach the conclusions is sufficiently reliable; and (3) whether the testimony assists
the trier of fact to understand the evidence or to determine a fact at issue. Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005).
As an overarching principle, the district court must “ensure that speculative,
unreliable expert testimony does not reach the jury.” McCorvey, 298 F.3d at 1256. “In order
to be admissible, an expert’s testimony must be based on ‘more than subjective belief or
unsupported speculation.’” Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1167 (S.D. Fla. 1996)
(quoting Daubert, 509 U.S. at 590). There should be “[s]cientific method; good grounds
and appropriate validation.” U.S. v. Masferrer, 367 F. Supp. 2d 1365, 1371 (S.D. Fla. 2005).
Reliability of the methodology requires “an exacting analysis of the proffered
expert’s methodology.” McCorvey, 298 F.3d at 1257. That analysis takes into consideration
a number of factors, including: (1) whether the expert’s methodology can be, and has
been, tested; (2) whether the expert’s scientific technique has been subjected to peer
review and publication; (3) whether the method employed has a known rate of error; and
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(4) whether the technique is generally accepted in the scientific community. Rink, 400 F.3d
at 1292; see also Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d 1333, 1341 (11th
Cir. 2003).
These reliability factors, however, are non-exhaustive. Kumho Tire, 526 U.S. at 150;
Rink, 400 F.3d at 1292. Thus, “[i]n evaluating the reliability of an expert’s method . . . a
district court may properly consider whether the expert’s methodology has been
contrived to reach a particular result.” Rink, 400 F.3d at 1293 n.7. The burden of
establishing the reliability of an expert’s opinions rests on the proponent of that expert’s
testimony. U.S. v. Frazier, 387 F.3d 1244 (11th Cir. 2004). The party proffering the expert
also has the burden of “laying the proper foundation for the admission of the expert
testimony . . . and admissibility must be shown by a preponderance of the evidence.”
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
“It is not the role of the district court to make ultimate conclusions as to the
persuasiveness of the proffered evidence.” Quiet Tech. DC–8, Inc., 326 F.3d at 1341. Thus,
the district court cannot exclude an expert because it believes the expert lacks personal
credibility. Rink, 400 F.3d at 1293 n.7. To the contrary, “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.” Quiet
Tech. DC–8, Inc., 326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596).
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A less-than-perfect expert opinion may still be admitted, even if it contains gaps.
See In re Trasylol Prods. Liab. Litig., No. 08–MD–01928, 2010 WL 1489793, at *6 (S.D. Fla.
Feb. 24, 2010) (“Only if the expert’s opinion is so fundamentally unsupported that it can
offer no assistance to the jury must such testimony be excluded.”).
Furthermore, courts “must be careful not to conflate questions of admissibility of
expert testimony with the weight appropriately to be accorded to such testimony by the
fact finder.” Id. at *7 (quoting Quiet Tech. DC–8, Inc., 326 F.3d at 1341).
On the other hand, courts do not hesitate to exclude purported expert testimony
which does not pass muster. See Allison, 184 F.3d 1300 (affirming summary judgment in
favor of silicone breast implant manufacturers and upholding district court’s exclusion
of proffered expert’s causation testimony under Daubert); Rink, 400 F.3d at 1286 (affirming
exclusion of expert testimony in products liability and toxic trespass claims against
pesticide manufacturer and therefore affirming summary judgment for defendant);
Frazier, 387 F.3d 1244 (finding trial court in criminal case did not abuse its discretion in
excluding proffered expert testimony from forensic investigator); Hendrix v. Evenflo Co.,
Inc., 609 F.3d 1183 (11th Cir. 2010) (affirming defense summary judgment for infant car
seat manufacturer in products liability lawsuit involving child who sustained traumatic
brain injuries and upholding trial court ruling which excluded expert testimony because
the experts were not sufficiently reliable).
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Passing muster, however, is not the only requirement. There are certain categories
of opinions that are impermissible regardless of the qualifications of the expert or the
reliability of the opinion.
Among these off-limits topics, experts may not offer opinions on a person’s state
of mind. Omar v. Babcock, 177 F. App'x 59, 63 n.5 (11th Cir. 2006); In re Seroquel Prods. Liab.
Litig., No. 6:06–md–1769–Orl–2DAB, 2009 WL 3806436, at *4 (M.D. Fla. July 20, 2009)
(excluding expert testimony with regard to the state of mind, intent, or motives of
defendant or any of defendant's employees because those matters are not the proper
subjects of expert testimony). Experts generally may not interpret unambiguous
contracts. Peterson v. Lexington Ins. Co., 753 F.2d 1016, 1018 (11th Cir. 1985); In re
NationsRent Rental Fee Litig., No. 06-60924-CIV, 2009 WL 87607, at *2 (S.D. Fla. Jan. 12,
2009) (“[A]bsent any need to clarify or define terms of art, science or trade, expert opinion
testimony to interpret contract language is inadmissible.” (citation omitted)). And experts
are also not permitted to offer legal conclusions. United States v. Long, 300 F. App’x 804,
814 (11th Cir. 2008) (“[An] expert witness may not testify as to his opinion regarding
ultimate legal conclusions.”).
III.

ANALYSIS
Plaintiffs’ experts and Defendant’s experts offer opinions on very similar, and

often identical, topics. Among other opinions, many of the experts opine on whether
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FTCs are compensation or revenue, whether FTCs have any monetary value, whether a
prohibited transaction occurred, or whether John Hancock was acting as a fiduciary
during its use of FTCs originating from the Romanos’ Plan.
Despite the subject matter similarities, Plaintiffs and Defendant often both seek to
strike the opposing party’s expert’s opinion -- on grounds of either relevance or improper
legal conclusion -- yet in their responsive filings argue that their own expert’s opinions
on the same issue (but reaching the contrary result) are neither irrelevant nor an improper
legal conclusion. Not surprisingly, this leads to many inconsistent arguments by both
sides, depending on whether a reader is reviewing a party’s affirmative motion to strike
or that same party’s opposition to the other side’s affirmative motion to exclude.
In addition to providing affirmative expert reports, many of the parties’ experts
also authored rebuttal reports. Because the rulings on an expert’s affirmative report may
have an impact on the ruling concerning the opinion of the expert rebutting that report,
the Undersigned will first address all affirmative reports and will then address all
rebuttal reports. In situations where the Undersigned is striking a section or the entirety
of an affirmative report, the Undersigned will also strike, if it exists, the corresponding
sections of the opposing party’s rebuttal report.

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a. INITIAL REPORTS
i. Bruce Pingree7
Pingree is a retired lawyer whose former practice revolved almost exclusively
around employee benefits and executive compensation matters. Since retiring from the
practice of law, Pingree has shifted his work to benefits consulting and expert witness
services.
Plaintiffs hired Pingree to describe the procedures, considerations, and “best
practices” an individual in Plaintiffs’ position should use to determine: (1) who owns the
economic benefit of the subject FTCs; (2) a recordkeeper’s fiduciary duty with respect to
the economic benefit; (3) whether John Hancock committed a “prohibited transaction”
under ERISA in its application of FTCs; and (4) assuming the answer to (3) is “yes,” then
how the individual in Plaintiffs’ position should remedy the prohibited transaction(s).
Before offering his opinion on these issues, Pingree described in detail his
perspective on the “ever-increasing litigation since the turn of this century relating to the
fees and components of fees charged to ‘employee pension benefit plans.’” In his view,
this case is a “novel but logical follow-on” to the increase and focus of this type of

A copy of Pingree’s expert report, including his qualifications, is filed in full on
CM/ECF, with no redactions. [ECF No. 260-1]. The Undersigned’s summary of Pingree’s
background and opinions is derived from this exhibit.
15
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litigation.
Pingree offered his opinions through the eyes of a hypothetical administrative
fiduciary and what he “would conclude [] if he were [that] administrative fiduciary.”
Framed by this hypothetical, Pingree opined that the Plan owns the economic benefit of
the FTCs; FTCs are compensation under ERISA; and that John Hancock violated the
prohibited transaction rules of ERISA. Ultimately, Pingree concluded that the “best
practice” for an administrative fiduciary who has made discoveries similar to those made
in his report would be to file this lawsuit.
Defendant seeks to strike pages 15-23 of Pingree’s report as irrelevant and as
improper legal opinions. [ECF No. 260]. Defendant takes the stance that “Mr. Pingree’s
opinion as to whether Plaintiffs should have filed a lawsuit – one that has already been
filed—has no relevance to this case nor could it assist a finder of fact.” Id. But Plaintiffs
refer to this defense characterization of Pingree’s opinions as a “self-serving distortion”
and as a “strawman.” [ECF No. 270].
According to Plaintiffs, Pingree presented his best practices opinions “from the
perspective of hypothetical plan fiduciaries evaluating particular transactions by
investment fiduciaries like Defendant because that is the most common situation in
which the best practices are implicated and utilizied [sic].” Id. at p. 3. This, they claim,
will greatly assist the jury in determining whether Defendant’s retention of FTCs were
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prohibited transactions. Id.
Defendant makes an alternative argument that these same opinions should be
excluded because they are improper legal opinions on whether a prohibited transaction
occurred, whether FTCs are compensation, and the meaning and interpretation of the
contract between Plaintiffs and Defendant. [ECF No. 260]. Plaintiffs again contend that
John Hancock is distorting Pingree’s opinions (which are, in their view, limited to best
practices) and that he only predicts the answers to those issues.
Plaintiffs’ attempt to portray Pingree’s opinion as only a best practices analysis
and to describe his legal conclusions as mere predictions falls flat. The following excerpts
from Pingree’s report reveal that it is, in effect, a seemingly self-congratulatory roadmap
about how Plaintiffs were justified and should be commended for filing their lawsuit (and
his legal conclusions supporting that position):
Frankly, I am amazed that Plaintiffs even discovered the use of foreign tax
credits, given Defendant’s non-disclosure. But they have, and everything in
this Report follows from that discovery.
This leads to the conclusion that the Defendant has violated the prohibited
transaction rules of ERISA. There is no available defense that the prohibited
transaction is ‘good’ for the plan.
To the contrary, I would conclude, if I were an administrative fiduciary,
that several propositions support the beneficial ownerships (the economic
benefit) of the foreign tax credit by the Plaintiffs [a position Plaintiffs have
taken in bringing this lawsuit].
At this point in my analysis and advice to the administrative fiduciary, it
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cannot be disputed that the foreign tax credits have monetary value.
These positions strongly suggest that the foreign tax credits should
beneficially attach to the . . . assets of the pension funds that are used in the
transaction generating the foreign tax credit.” [i.e., foreign tax credits are
plan assets].
Aside from committing the prohibited transaction, the Defendant has
arguably violated its own promise [in the contract] to disclose and adjust
its fees from “all revenue it derives from the investment of Plan assets.”
In light of all these considerations, I would conclude that a prudent
administrative fiduciary would or should, more likely than not conclude
that the Defendant had committed a prohibited transaction. A prudent
administrative fiduciary would conclude that the best interests of plan
participants would be served by bringing this action.
Defendant contends that this opinion -- whether Plaintiffs engaged in the best
practices for evaluating their claim and were required to bring a lawsuit when following
these practices -- is irrelevant to any of Plaintiffs’ claims. As Defendant notes, it has not
raised any defenses suggesting Plaintiffs acted prudently or imprudently in bringing this
lawsuit. Although Plaintiffs try to paint Pingree’s opinions as something more than an
analysis of Plaintiffs’ actions, the content of Pingree’s report does not support such a leap.
However, even if the Undersigned were to accept Plaintiffs’ expansive view of Pingree’s
opinions and treat it as a “best practice” opinion, Pingree’s opinions would still run afoul
of the other rules of evidence or be otherwise excludable under Daubert.
“The Daubert analysis does not operate in a vacuum.” Allison, 184 F.3d at 1309.
Thus, an expert’s testimony, even if it satisfies Daubert, may still be excluded under the
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other rules of evidence. Id. Defendant initially challenges Pingree’s opinions on the basis
that they are inadmissible under Federal Rule of Evidence 401.
Rule 401 defines “relevant evidence” as that which has any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Fed. R. Evid. 401(a)-(b).
Plaintiffs allege Pingree’s opinions meet this hurdle because he expressly writes that his
opinions are on the practices that should be applied to “evaluate whether the Defendant
has committed a prohibited transaction under ERISA.” [ECF No. 270 (citing Pingree’s
report)]. There is little in Pingree’s report to support this characterization. Although
Pingree and Plaintiffs both use the term “best practice,” Pingree’s opinions offer little
analysis on what the best practice is in this case. Instead, he offers opinions which are
either an improper expert opinion, irrelevant, or both.
First, the manner in which Pingree provided his opinions results in an implicit
(and, at times, explicit) validation of Plaintiffs’ purported wisdom in bringing this
lawsuit. Pingree commends Plaintiffs for discovering the FTC issue, endorses the actions
they took in assessing the FTC issue, and concludes that prudence required Plaintiffs to
file this case.
The Eleventh Circuit has made clear that “[e]xpert . . . testimony concerning the
truthfulness or credibility of a witness is generally inadmissible because it invades the
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jury's province to make credibility determinations.” United States v. Beasley, 72 F.3d 1518,
1528 (11th Cir. 1996). Pingree’s opinions, as articulated by Plaintiffs -- concerning how
Plaintiffs’ actions constitute the best practice in evaluating whether a prohibited
transaction occurred -- are, in effect, credibility assessments of Plaintiffs, which is
inadmissible. Pellegrino v. Wengert, No. 15-CV-60535, 2016 WL 3678600, at *9 (S.D. Fla.
July 12, 2016) (excluding expert testimony concerning the “credibility of the other
witnesses” because such testimony is “not permitted”); Lohr v. Zehner, No. 2:12CV533MHT, 2014 WL 3175445, at *2 (M.D. Ala. July 8, 2014) (finding “credibility determination
[was] not sufficiently reliable to go before a jury as expert opinion”); United States v.
Falcon, 245 F. Supp. 2d 1239, 1248 (S.D. Fla. 2003) (“Permitting [expert’s] testimony would
run contrary[] to the well-established principle that, absent extraordinary circumstances,
credibility determinations are for the jury, and not expert witnesses.”).
Second (and still treating Pingree’s opinion as a “best practice” opinion), Pingree’s
analysis is little more than an examination of the elements of the offense.8 Under
Plaintiffs’ view of admissibility, a party should be able to present an expert witness in a
breach of contract case to offer a best practice opinion that a plaintiff should first

Because Pingree concludes that it was proper to bring a lawsuit, this analysis also
implicitly endorses the merits of the case. Certainly, Pingree would not suggest that
bringing a lawsuit was the best practice unless he was also opining that Defendant is in
fact liable.
20
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determine if there is a valid contract, should next determine whether the defendant failed
to perform a portion of the contract, and finally determine whether any damages were
suffered before ultimately opining that all of these elements have been met and that the
plaintiff was justified in filing a lawsuit. This type of evidence is not relevant: it makes no
fact of consequence more or less probable than it would be without the evidence. Courts
throughout the country regularly exclude this type of opinion testimony concerning the
merits of a lawsuit or the propriety in bringing it. See, e.g., Lacaillade v. Loignon ChampCarr, Inc., No. 10-CV-68-JD, 2011 WL 5520942, at *2 (D.N.H. Nov. 14, 2011) (“[Expert's]
opinion as to whether or not Loignon is at fault for Lacaillade's death, as well as her
opinion on the merits of the lawsuit, essentially tell the jurors what result to reach. Such
opinions are precisely the type that Rule 701 precludes.”); Advanced Physical Therapy, LLC
v. Apex Physical Therapy, LLC, No. 6:20-CV-03043-RK, 2022 WL 303345, at *2 (W.D. Mo.
Feb. 1, 2022) (excluding expert opinions that “(1) Apex lacked probable cause to file the
Illinois Lawsuit, (2) the Illinois Lawsuit order was ‘correct,’ (3) litigants like Ball and
Linebarger frequently suffer an emotionaltollfrom [sic] litigation, and (4) the attorney's
fees incurred in the Illinois Lawsuit were necessary and reasonable”); Ogilvie v. Swank,
No. 2:14-CV-354-SPC, 2016 WL 1554407, at *2 (M.D. Fla. Apr. 18, 2016) (prohibiting expert
from “testify[ing] as to his personal opinions on the merits of the suit”); Motorola Sols.,
Inc. v. Hytera Commc'ns Corp., 495 F. Supp. 3d 687, 703 (N.D. Ill. 2020) (prohibiting experts,
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on statute of limitations issue, from “testifying that Motorola should have filed this
lawsuit before 2017”); Zamora v. Tarrant Cty. Hosp. Dist., 510 S.W.3d 584 (Tex. App. 2016)
(striking portions of “declaration by employee's expert stating opinion that employee's
counsel exercised reasonable and due diligence in filing and serving lawsuit on defendant
and that it was reasonable to have case served on defendant within 30 days of filing it”).
If this type of testimony were permitted, then every plaintiff would enlist an expert
to testify to the jury that the lawsuit is justified, righteous and meritorious.
This type of analysis explains only the law -- an area left to the exclusive purview
of the Court -- and, in effect, tells the jury the verdict it should reach. Fed. R. Evid. 704 at
committee notes (merely telling the jury what result to reach is not helpful to the jury and
therefore is not admissible testimony).
Because of this, the Undersigned also agrees with Defendant’s argument that
Pingree’s report contains multiple impermissible legal conclusions.9 Plaintiffs try to paint

This is not the first time that a court has excluded Pingree’s opinions for containing
inadmissible legal conclusions. In Vyas v. Vyas, No. 15-02152, 2017 WL 4621539, at *6 (C.D.
Cal. Oct. 13, 2017), aff’d 765 F. App’x 195 (9th Cir. 2019), the plaintiff retained Pingree,
who, testifying as an expert, concluded that the defendant, Schwab Retirement Plan
Services, Inc., was a fiduciary and that it breached its duties to the plaintiff by
implementing a freeze on her 401(k) Plan account and improperly allocating the funds in
a Keogh Plan account. The Court, which granted Schwab’s summary judgment motion
and denied the plaintiff’s summary judgment motion, sustained Schwab’s objections to
Pingree’s deposition testimony and his expert report because the conclusions “go to the
ultimate question in this matter and are thus inadmissible legal conclusions.”
9

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these legal conclusions as mere predictions, but Pingree’s actual statements, which I
provided examples of earlier, contradict this assertion.
Although “[a]n expert may testify as to his opinion on an ultimate issue of fact[,]”
an expert may not “tell the jury what result to reach” nor “testify to the legal implication
of conduct; the court must be the jury’s only source of law.” Montgomery v. Aetna Cas. &
Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (citations omitted). Even when hidden behind
the phrases best practice or prediction, Pingree opines on the result the reader should
reach in assessing many of the main legal issues in the case. 10
Though there are situations where an expert’s framework “may alert jurors to
certain areas of inquiry that he believes they should pay particular attention to when
evaluating evidence,” ultimately it is the Court’s instructions on the law that creates the

In the class certification context, Plaintiffs identified the following common issues
of law and fact: “(1) whether [John] Hancock was a fiduciary of the Plans with respect to
Plaintiffs’ claims; (2) whether [John] Hancock disclosed its receipt and retention of foreign
tax credits; (3) whether Hancock breached its fiduciary duties; and (4) whether [John]
Hancock engaged in prohibited transactions[.]” [ECF No. 94].
10

In their response to Defendant’s summary judgment motion, Plaintiffs say that
“[t]he question whether a party is an ERISA fiduciary is a mixed question of law and
fact.” [ECF No. 267]. They also later take the unequivocal position that John Hancock was
a fiduciary, which implicitly assumes that there are no remaining factual disputes to
prevent a court from deciding the legal issue. Plaintiffs also indicate that whether an FTC
is a plan asset is determined by two approaches of law, both of which involve reaching a
legal conclusion. Id. Likewise, both the determination of whether John Hancock breached
its duty of loyalty and whether it engaged in prohibited transactions are presented as
legal questions (albeit ones for which Plaintiffs argue there are factual disputes). Id.
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framework through which the jury must evaluate the evidence. Kleiman v. Wright, 18-cv80176, 2020 WL 6729362 at *24 (S.D. Fla. Nov. 17, 2020).
Further, an expert may not simply “quote[] and summarize[] relevant statutory
provisions”; this “is not helpful to the jury because it is nothing more than impermissible
legal standard testimony.” Cordoves v. Miami-Dade Cty., 104 F. Supp. 3d 1350, 1365 (S.D.
Fla. 2015) (citing Pleasant Valley Biofuels, LLC v. Sanchez-Medina, No. 13–23046–CIV, 2014
WL 2855062, at *5 (S.D. Fla. June 23, 2014)). For this reason, the sections of Pingree’s report
where he simply includes the language of a statute or regulation are also inadmissible.
Likewise, because Plaintiffs have alleged no ambiguity in the GAC or RKA,
Pingree’s opinions on whether Defendant may or may not have violated the promises
made in the contracts is also inadmissible. Nova Cas. Co. v. Waserstein, No. 04-20755-CIV,
2005 WL 5955694, at *2 (S.D. Fla. Sept. 7, 2005) (citing TCP Industries, Inc. v. Uniroyal, Inc.,
661 F.2d 542, 549 (6th Cir. 1981) (“Absent any need to clarify or define terms of art, science,
or trade, expert opinion testimony to interpret contract language is inadmissible.”)).
The effect of this ruling is the exclusion of Pingree’s initial report from page 15
through page 23 because in all of those pages he is either expressing an irrelevant opinion,
making a legal conclusion, reciting statutory language, or interpreting a contract. Once
those pages are stricken, the only sections left of Pingree’s report are those summarizing
his experience and his comments on the increase in ERISA litigation. Without the final
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nine pages of his report, the rest of Pingree’s report contains no information relevant to
this case. Therefore, the Undersigned grants Defendant’s request and strikes the entirety
of Pingree’s initial report.
ii. Roger Levy11
Roger Levy is a former attorney and current CEFEX analyst.12 As a CEFEX analyst,
Levy performs fiduciary assessments and advises clients on fiduciary best practices,
including best practices relating to defined contribution plans.
In Levy’s report, he summarizes his ultimate opinions and conclusions:
Assets held under a group variable annuity contract in an insurance
company separate account on behalf of a retirement plan constitute plan
assets and are generally held by the insurance company in a fiduciary
capacity, and, specifically so, when the insurance company represents that
A copy of Levy’s expert report, including his qualifications, is filed in full on
CM/ECF. [ECF No. 257-1]. There are no confidentiality-based redactions in this publiclyfiled document. The Undersigned’s summary of Levy’s background and opinions are
derived from this exhibit.
11

The Centre for Fiduciary Excellence (“CEFEX”) offers certificates to Investment
Stewards, Investment Advisors, Fiduciary Advisors (United States only), Investment
Managers, Retirement Plan Service Providers, and Investment Support Service Providers.
Registration Types CEFEX, https://www.cefex.org/registration-types.shtml (last visited
April 4, 2022). CEFEX’s certification indicates that an entity has been assessed typically
via document review, client file sampling, and on-site visits and interview with senior
representatives to ensure the firm is adhering to a standard representing the best practices
in their industry. What it Means, CEFEX, https://www.cefex.org/index.shtml (last visited
April 4, 2022). “If a firm is CEFEX-certified, it means they follow what’s called a Global
Fiduciary Standard of Excellence. This means they are required to act in investors’ best
interests.” What it Means for an Advisor to be CEFEX-Certified, Rachel Cautero, Feb. 4, 2020,
SMARTASSET, https://smartasset.com/investing/cefex (last visited April 4, 2022).
25
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it is acting in a fiduciary capacity when holding such assets.
As a fiduciary, an insurance company must deal with plan assets solely in
the interest of the plan’s participants and beneficiaries and for their
exclusive benefit.
The disposition by an insurance company of foreign tax credits received
with respect to mutual fund holdings in a separate account poses a conflict
of interest: to use the foreign tax credits for the insurance company’s own
exclusive use and benefit; or to credit the foreign tax credits back to the
separate accounts that generated them and to disclose such foreign tax
credits as indirect compensation.
It is a best practice for insurance companies who issue group variable
annuity contracts and receive foreign tax credits from mutual funds held in
the insurance company’s separate accounts to credit such foreign tax credits
back to the separate accounts that generated them and to disclose such
foreign tax credits as indirect compensation.
The Defendant did not act in accordance with best practice and its conduct
was disloyal to the Plaintiffs and to the Romano Law, PL 401(k) Plan, its
participants and beneficiaries by: (1) not resolving in their favor the conflict
of interest posed by Defendant’s access to foreign tax credits resulting from
holding in its separate accounts plan assets of the Romano Law, PL 401(k)
Plan as a plan fiduciary; and (2) retaining the benefit of foreign tax credits
for its own exclusive use and benefit.

Following this section, Levy continues by detailing the facts and assumptions he
applied to his analysis to reach these conclusions.
Defendant seeks to strike discrete sections of Levy’s report for myriad reasons: (1)
paragraphs 11c, 11d, 11e, 18, 24 (second sentence), 25 (first, seventh, and eighth
sentences), 26, 27, (first sentence and n.27), and 30 because Levy is unqualified to offer
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these opinions; (2) paragraphs 11d, 11e, and 27-30 because the opinions are unreliable;
and (3) paragraphs 1, 11a-c, 11e, 13-16, 20-23, 22 n.20, 24 (first and last sentences), 24 n.23,
25 (seventh and eighth sentences), 25 n.24, 30 (second and third sentences), and 30 n.32
because the opinions are impermissible legal conclusions. [ECF No. 257].
1. Levy’s Qualifications
In Defendant’s view, although Levy has 52 years of experience as a lawyer and as
a professional working in the retirement industry, he is unqualified to offer many of his
opinions because he hasn’t dealt explicitly with FTCs. Plaintiffs argue that Levy’s decades
of experience in fiduciary best practices qualifies him to offer best practice opinions
concerning retirement plans and FTCs even if he has not worked specifically with foreign
tax credits in the past. [ECF No. 271]. According to Plaintiffs, Defendant is improperly
attempting to impose a requirement that all experts must have hyper-specialized
knowledge of subcategories in a field.
Certainly, it might be preferable to retain only experts who have decades of
experience in the minutia of a precise topic. However, there is nothing so unique about
FTCs that would render an attorney with decades of experience in the retirement field -and who has advised a heavily ERISA-centric client base on their fiduciary
responsibilities and currently operates as a CEFEX analyst performing fiduciary
assessments and offering advice on best practices -- unqualified to offer an opinion on
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ERISA-related best practices merely because the conduct in question implicates FTCs.
By Defendant’s logic, one of its own experts, Steven Gissiner, would be
unqualified to offer many of his opinions based on this exchange during his deposition:
Q: Have you published any work regarding foreign tax credits?
A: No.
Q: Have you provided expert testimony in any other litigation
regarding foreign tax credits?
A: No.
Q: And you testified earlier, your work as a consultant over the past
40 years, you have not worked on any issues regarding foreign tax
credits; is that right?
A: No.
Q: It’s not right, or it is right?
A: I have not.
See Deposition of Steven Gissiner, p. 50, 8-20 [ECF No. 265-4].
Experts are not required to have hyper-focused experience in order to be qualified
to offer an expert opinion: “so long as the expert is minimally qualified, objections go to
the credibility and weight of the testimony, not its admissibility.” Altidor v. Carnival Corp.,
550 F. Supp. 3d 1322, 1333 (S.D. Fla. 2021) (citing Vision I Homeowners Ass'n, Inc. v. Aspen
Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009)). Indeed, “‘Rule 702
contemplates a broad conception of expert qualifications[,]’ as is evidenced by the
advisory committee notes thereto ‘emphasiz[ing] that Rule 702 is broadly phrased and
intended to embrace more than a narrow definition of qualified expert.’” Peck v. Carnival
Corp., No. 16-20214, 2017 WL 7726728, at *2 (S.D. Fla. July 13, 2017) (quoting Hangarter v.
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Provident Life & Accident Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004)) (alterations in original).
As stated by the Eleventh Circuit, “[a] witness is qualified as an expert if he is the
type of person who should be testifying on the matter at hand.” Moore v. Intuitive Surgical,
Inc., 995 F.3d 839, 852 (11th Cir. 2021). The plain language of Rule 702 indicates that expert
status may be based on “knowledge, skill, experience, training, or education.” Fed. R. Evid.
702 (emphasis added). Although Plaintiffs bear the burden of demonstrating that Levy’s
experience renders him qualified, McCorvey, 298 F.3d at 1257, the mere fact that
Defendant has challenged the degree of his experience with FTCs in particular does not
mean Plaintiffs must show some more particularized form of expertise.
District courts regularly qualify experts who have sufficient general experience
even when they lack lengthy experience on discrete subtopics in their field. See, e.g.,
Altidor, 2021 WL 3163650, at *7 (permitting civil engineer to offer expert opinion on the
mechanics of a cruise ship barstool despite lack of experience with maritime engineering
when opponent failed to demonstrate why specialized experience was necessary);
Edmondson v. Caliente Resorts, LLC, No. 8:15-CV-2672-T-23TBM, 2017 WL 10591833, at *10
(M.D. Fla. Aug. 31, 2017) (finding expert qualified to testify in a Lanham Act case in the
field of marketing research and conducting survey evidence despite lack of focus on
Lanham Act cases because such focus is not required); Buccellati Holding Italia SPA v.
Laura Buccellati LLC, No. 13-21297-CIV, 2014 WL 11901585, at *3 (S.D. Fla. Apr. 14, 2014)
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(rejecting argument that expert was not qualified because, although he has “little direct
work experience in the jewelry or handbag industry,” his “extensive experience in the
luxury good industry generally” was sufficient and cross-examination was an acceptable
means to challenge the opinion).
The Undersigned is satisfied that Levy’s substantial experience qualifies him to
offer an opinion on the topics he was retained to assess.
2. Reliability of Levy’s Opinions
Defendant seeks to strike certain Levy opinions on the additional basis that the
opinions are unreliable. According to Defendant, Levy’s best practice opinions are
grounded in “nothing more than his own ipse dixit.”13 Plaintiffs argue that this worrisome
label does not apply to Levy’s opinions and that Defendant has not established any
reason to believe that disclosure obligations and conflict of interest resolution should be
handled any differently than other matters in the retirement field.

“Ipse dixit is a Latin phrase that translates to “he said it himself.” Ipse dixit means
a person’s own assertion without relying on any authority or proof. It usually implies an
assertion of authority, as in a statement is true based on the speaker’s authority and not
back by any proof.” https://www.law.cornell.edu/wex/ipse_dixit (last visited March 23,
2022); see also Earle v. Ratliff, 998 S.W. 2d 882, 890 (Tex. Sup. Ct. 1999) (“An expert’s simple
ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of
his statements to link his conclusions to the facts.”) (emphasis added); Daubert v. Merrell
Dow Pharmaceuticals, Inc. (on remand), 43 F.3d 1311, 1316 (9th Cir. 1995) (observing that
the gatekeeping role requires a district court to make a reliability inquiry, and that “the
expert's bald assurance of validity is not enough”).
30
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A court must be careful not to conflate an expert’s satisfactory qualifications with
the reliability of the expert’s opinions. Although there is overlap between the two factors,
they are distinct in their function. The Eleventh Circuit has summarized this interplay as
follows:
Of course, the unremarkable observation that an expert may be qualified by
experience does not mean that experience, standing alone, is a sufficient
foundation rendering reliable any conceivable opinion the expert may
express. As we observed in Quiet Technology, “while an expert's
overwhelming qualifications may bear on the reliability of his proffered
testimony, they are by no means a guarantor of reliability. ... [O]ur caselaw
plainly establishes that one may be considered an expert but still offer
unreliable testimony.” 326 F.3d at 1241-42. Quite simply, under Rule 702,
the reliability criterion remains a discrete, independent, and important
requirement for admissibility.
Frazier, 387 F.3d at 1261 (en banc).
“If admissibility could be established merely by the ipse dixit of an admittedly
qualified expert, the reliability prong would be, for all practical purposes, subsumed by
the qualification prong.” Id.
As Plaintiffs’ final assertion of reliability, they state “[b]ecause [Levy] has
explained how his experience led to the conclusions he reached, the experience was a
sufficient basis for the opinion, and he reliably applied his experience to the facts, [] his
conclusions are reliable and warrant admission.” This claim, however, merely tracks the
language of the Committee Note to the 2000 Amendments of Rule 702, which states that
[i]f the witness is relying solely or primarily on experience, then the witness
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must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is
reliably applied to the facts. The trial court's gatekeeping function requires
more than simply “taking the expert's word for it.”
Fed. R. Evid. 702 advisory committee's note (2000 amends.) (emphasis added).
This argument is difficult to accept because, although Plaintiffs argue that Levy is
basing his opinion on his experience and aver that his experience causes him to reach that
conclusion, Levy fails to articulate with specificity what in his experience is causing him
to reach that opinion. Plaintiffs’ response posits that Levy could not rely on CEFEX
standards -- which do not address FTCs -- so he relied on other standards. However, as
Defendant notes in its Reply, the specifics of these “other standards” are absent from both
Levy’s report and from Plaintiffs’ response.
In assessing the reliability of an expert’s particular opinion, the Court should
consider, to the extent possible: “(1) whether the expert's theory can be and has been
tested; (2) whether the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.” Quiet Tech. DC–8, Inc., 326
F.3d at 1341. As mentioned previously, however, these factors are non-exhaustive. Id.
The Undersigned finds that the majority of these factors weigh against a finding
that the challenged opinions are reliable. Although Levy’s theory can be tested, no
evidence has been put forth to demonstrate that it has been tested. Levy has not cited any
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other article or publication that shares his opinion, nor has he provided any publication
authored by him on the application of FTCs in qualified retirement plans. Finally, Levy
has pointed to no industry standards adopting his view (and Plaintiffs concede that
CEFEX -- the standards in Levy’s professional employment -- does not address the issue).
Additional factors also cut against the reliability of Levy’s opinions on this topic.
This case is the first time Levy has offered this opinion on this subject, a status which
generates this natural corollary: Levy came to this opinion for the purpose of this
litigation. See Summer v. Biomet, Inc., 434 F. App’x 834, 842-43 (11th Cir. 2011) (affirming
district court’s determination that the fact that an expert’s theory appeared to have been
arrived at for purposes of the litigation weighed heavily against the opinion’s
admissibility); see also Fed. R. Evid. 702, 2000 amend. note (“Whether experts are
proposing to testify about matters growing naturally and directly out of research they
have conducted independent of the litigation, or whether they have developed their
opinions expressly for purposes of testifying” is relevant to determining the reliability of
expert testimony) (internal quotation marks omitted).
Moreover, only a single recordkeeping entity, Securian, follows Levy’s proposed
best practice. Plaintiffs are correct that the most common practice is not the same as the
best practice. However, Securian is a lone wolf amongst every other recordkeeper. The
lack of industry recognition of this practice further undermines Levy’s reliability in the
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context of a recordkeeper’s purported duty under ERISA.
The Undersigned agrees with United States District Court Judge Greg Kays’
finding after a bench trial that Levy’s testimony should be afforded no weight on this
subject matter because the standards he champions, although admirable, are not
necessarily the standards of ERISA. Wildman v. Am. Century Servs., LLC, 362 F. Supp. 3d
685, 696 (W.D. Mo. 2019) (in a bench trial for an ERISA lawsuit alleging claims for breach
of fiduciary duty and prohibited transactions, the Court gave “no weight” to Levy’s
expert testimony and noted that “his approach has not won wide acceptance in the
retirement plan industry, with only fourteen to sixteen retirement plans out of
approximately 500,000 conforming to these standards”).14
Because this will not be a bench trial, as in Wildman, there is too much risk a jury
will be unduly influenced by unreliable expert testimony on this subject. See generally Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512 (1997) (“[N]othing in either Daubert or
the Federal Rules of Evidence requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert.”).

Levy’s opinion was that the defendants failed to employ a prudent process when
adding and retaining funds in the Plan and that there was a failure to adhere to a set of
standards he promotes for fiduciary conduct. Nevertheless, and most significantly, Judge
Kay explained that “[w]hile the Court agrees with Mr. Levy that fiduciaries should strive
to attain the standards he champions, they are not the standards ERISA requires.” Id.
(emphasis added).
34
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For these reasons, Levy will not be permitted to offer any testimony on the best
practices of insurance companies who issue group variable annuity contracts in handling
FTCs generated by the mutual funds held in separate accounts. See also Birse v. Century
Link, No. 17-cv-02872, 2020 WL 1062902, at *7 (D. Col. Mar. 5, 2020) (granting the
defendant’s summary judgment motion and holding that Levy’s opinions could not form
the basis of a genuine dispute of material fact regarding whether the defendants breached
their fiduciary duties under ERISA because his opinions “are based on an unrelated
standard”). Although Defendant’s request is targeted and focuses on the specific
paragraphs and sentences it believes fall under the “best practice” opinion category, the
sections it seeks to exclude are not all in the category.
By way of example, the entirety of Paragraph 11d falls within the “best practice”
category because Levy states,
It is a best practice for insurance companies who issue group variable
annuity contracts and receive foreign tax credits from mutual funds held in
the insurance company’s separate accounts to credit such foreign tax credits
back to the separate accounts the generated them and to disclose such
foreign tax credits as indirect compensation.
In contrast, only the bolded portion of Paragraph 27 falls within the “best practice”
category and the remaining section is simply a factual statement:
One insurance group, in particular, stands out as representing best
practice and acting in the best interest of a plan, its participants and
beneficiaries: Minnesota Life Insurance Company and Securian Life
Insurance Company, whose annuities are offered through Securian
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Financial Services, Inc., a registered investment advisor (collectively
“Securian”). Among the attributes of GVAs offered through Securian is
that foreign tax credits are credited back to the separate accounts that
generated them. This is described by Securian among its “Client-First
investment practices”, as follows: Foreign tax credits are credited back to
the separate accounts that generated them, resulting in lower separate
account expenses and increased performance.
Thus, the Undersigned strikes the best practices opinions in paragraphs 11d, 11e,
27, and 30, and denies Defendant’s request as to the other paragraphs on this ground.
3. Legal Conclusions
Defendant’s final argument in support of excluding certain opinions offered by
Levy are that the opinions qualify as impermissible legal conclusions. Specifically,
Defendant challenges Levy’s statements that John Hancock was a fiduciary of the Plan,
that FTCs are indirect compensation within the meaning of ERISA and John Hancock had
a duty to disclose them to the Plan, and that John Hancock labored under a legal conflict
of interest when it filed its tax returns. Plaintiffs counter that these topics are either
assumptions Levy was required to make -- and, thus, not actual opinions -- or are factual,
not legal, conclusions.
It is well settled that while experts may offer testimony on ultimate issues of fact,
an expert may not offer legal conclusions. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe
Count, Fla, 402 F.3d 1092, 1112 n.8 (11th Cir. 2005) (“[T]estifying experts may not offer
legal conclusions[.]”); see also United States v. Milton, 555 F.2d 1198, 1203 (5th Cir. 1977)
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(“Rule 704 abolishes the per se rule against testimony regarding ultimate issues of fact.
By the same token, however, courts must remain vigilant against the admission of legal
conclusions, and an expert witness may not substitute for the court in charging the jury
regarding the applicable law.”).15
The reasoning for this principle is simple: “the court must be the jury’s only source
of law.” Aetna Cas. & Sur. Co., 898 F.2d at 1541. For this reason, a witness “may not testify
to the legal implications of conduct[.]” Id. As a corollary to this rule, it is also
impermissible for an expert to “merely tell the jury what result to reach.” Id. (citing Fed.
R. Evid. 704 at committee notes (merely telling the jury what result to reach is not helpful
to the jury and therefore is not admissible testimony)). Levy’s opinions on Defendant’s
identified topics run afoul of either one or both of these principles.
To begin, the Undersigned rejects Plaintiffs’ contention that any of the opinions
Defendant seeks to exclude are questions of fact. Whether something is a plan asset,
whether an entity is a fiduciary, and the interpretation of a contract have all been decided
to be matters of law. See, e.g., Pantoja v. Edward Sengel & Song Exp., Inc., 500 F. App’x 892,
893 (11th Cir. 2012) (affirming district court’s summary judgment ruling that unpaid
fringe benefit contributions were not “plan assets” within the meaning of ERISA as a

The Eleventh Circuit has adopted as precedent the decisions of the former Fifth
Circuit rendered before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981).
37
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matter of law); Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1278-79 (11th Cir.
2005) (holding that life insurance company was not a fiduciary as a matter of law and
claims that it “(a) ‘sold Policies and helped establish the Plan,’ (b) ‘administered,
managed, and controlled such Policies,’ (c) exercised discretionary authority over plan
assets, and (d) ‘exercised discretionary authority with respect to plan management and
administration’” were merely “conclusions of law”); Clyce v. St. Paul Fire & Marine Ins.
Co., 850 F.2d 1398, 1401 (11th Cir. 1987) (“The interpretation of a contract . . . is a question
of law within the scope of the trial court's determination.”).
Moreover, “[i]f testimony ‘track[s] the language of the applicable statute’ or uses
a term that ‘has a specialized legal meaning that is more precise than the lay
understanding of the term,’ the testimony is an impermissible legal conclusion.” Cordoves,
104 F. Supp. 3d at 1365 (quoting Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207,
1212 (D.C. Cir. 1997)) (some alterations in original).
Thus, other opinions -- such as whether FTC retention qualifies as direct or indirect
compensation or whether a duty of loyalty has been violated -- are legal conclusions
because they are terms defined in ERISA’s statutory framework. See 29 U.S.C. § 1108
(dd)(AA)-(CC) (defining “compensation,” “direct compensation,” and “indirect
compensation”); 29 U.S.C. § 1104(a)(1)(A)(i)-(ii) (defining the manner in which a fiduciary
is required to discharge its duties under its duty of loyalty).
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Finally, Plaintiffs’ argument in support of allowing this testimony is further
undermined by the contrary position they have taken in seeking to strike the opinions of
Defendant’s experts, David LaRue and Steven Gissiner, on these same issues (albeit, with
different conclusions) as impermissible legal conclusions. See [ECF No. 265 (seeking to
strike Gissiner’s opinions about “whether [John] Hancock qualifies as a fiduciary under
ERISA” and “whether [John] Hancock’s retention of the benefit of foreign tax credits
constitutes ‘compensation’ under ERISA”)]; [ECF No. 264 (seeking to strike LaRue’s
opinions “as to whether foreign tax credits constitute ‘compensation’ under ERISA,”
“whether foreign tax credits are ‘plan assets’ under ERISA,” and “whether [John]
Hancock engaged in a prohibited transaction under ERISA”)].
Plaintiffs make a fallback argument that any potential prejudice can be cured
through the use of an appropriate jury instruction. For this proposition, Plaintiffs cite
Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001). Maiz, however, does not state that such an
instruction permits experts to testify to legal conclusions; rather, it addresses situations
and cites cases where district courts through corrective jury instructions have cured the
error or rendered the error harmless. Id. at 667-68 (collecting cases). Here, while it is
possible that an instruction could cure any error in admitting legal conclusions, the fact
that Levy is a lawyer increases the potential that the jury will give undue weight to his
improper legal conclusions. Rather than issue a curative instruction, this Court would act
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more prudently by not making the error in the first place.
Accordingly, the Undersigned grants Defendant’s motion in part and excludes
Levy from offering testimony on whether John Hancock was operating as a fiduciary,
whether FTC retention is compensation, and whether John Hancock faced a legal conflict
of interest and acted disloyally.
Certain paragraphs that Defendant seeks to strike fall outside the above ruling. By
way of example, the Undersigned will compare two paragraphs which Defendant seeks
to strike: 11b and 11c.
11b states, “[a]s a fiduciary, an insurance company must deal with the plan assets
solely in the interest of the plan’s participants and beneficiaries and for their exclusive
benefit.” 11c states,
The disposition by an insurance company of foreign tax credits received
with respect to mutual funds holdings in a separate account poses a conflict
of interest: to use the foreign tax credits for the insurance company’s own
exclusive use and benefit; or to credit the foreign tax credits back to the
separate accounts that generated them and to disclose such foreign tax
credits as indirect compensation.
The difference between the two paragraphs is that 11b is merely a statement of the
law and how a fiduciary must act under ERISA and 11c is a legal conclusion because it
makes stated legal conclusions based on the facts of this case, such as FTCs constituting
indirect compensation and the existence of a conflict of interest as well as insinuated legal
conclusions such as the determination that Defendant acted disloyally by resolving
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Levy’s defined conflict in its favor. The first type of statement -- (11b) -- is permissible
because it is foundational background for why Levy considers certain facts important;
the second statement -- (11c) -- is impermissible because it makes a legal conclusion that
either usurps the role of the Court or of the jury.
Based on these principles, the Undersigned strikes the following paragraphs (or
sentences from paragraphs) from Levy’s expert report as part of this ruling: Paragraphs
11c, 11e16, 22-23, 24 (first and last sentences), 24 n.23 (first sentence), 25 (seventh and
eighth sentences), 25 n.24, 30 (second and third sentences), and 30 n.32 because the
opinions are impermissible legal conclusions.
iii. Barry Mukamal17
Mukamal is a Florida-licensed CPA with forty years of experience in the public
accounting profession and financial services industry. His areas of expertise include
financial accounting, business valuation, forensic accounting in litigation proceedings,
economic damages, bankruptcy, and insolvency matters.

In Section III(a)(ii)(2), the Undersigned struck the portion of this paragraph, which
opines that Defendant failed to abide by the “best practices.” This ruling strikes the
section opining that Defendant acted disloyally. As a result of these two rulings, the entire
paragraph is stricken.
16

A copy of Mukamal’s expert report, including his qualifications, is filed in
redacted form on CM/ECF. [ECF No. 259-1]. So is his supplemental calculation. [ECF No.
259-2]. The Undersigned’s summary of Mukamal’s background and opinions is derived
from the unredacted portions of those two publicly-filed exhibits.
41
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As Plaintiffs’ damages expert, Mukamal opines on the amount he believes
Defendant benefited through its use of qualifying FTCs. Mukamal summarizes this
opinion in his initial report, as follows:
Plaintiffs’ and the Class’s aggregate monetary relief is estimated at
$119,661,319 for the period 2013 through 2019, as detailed in Table 4.
Prejudgment interest in accordance with IRS rates totals $10,071,284
calculated on a simple interest basis, or $10,576,952 calculated on a
quarterly compounded basis, as summarized in Table 5.
In Mukamal’s supplemental calculation, he lowers the estimated relief based on newly
provided documents but does not alter his substantive analysis or procedure.
Defendant argues multiple reasons for striking Mukamal’s opinions: (1) Plaintiffs’
disclosure violated Federal Rule of Civil Procedure 26; (2) Mukamal’s opinions rely on
inaccurate factual assumptions and ignore John Hancock’s overall tax position; and (3)
Mukamal’s opinions rely on an incorrect statement of law provided by Plaintiffs. [ECF
No. 259].
1. Rule 26 Disclosure
Defendant argues that Mukamal’s report, although timely, does not meet the
disclosure requirements of Rule 26. Specifically, Defendant contends that Mukamal’s
report offered no explanation of what he means by “monetary relief,” nor did it explain
why Mukamal used various inputs in his calculations. Id. Plaintiffs respond that
Mukamal’s report is more than compliant and, even if it is not, there is no prejudice to
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Defendant. In Defendant’s Reply, it reiterates many of its main points and further argues
that Plaintiffs have not met their burden to demonstrate lack of prejudice. [ECF No. 282].
Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert report to contain the
following information:
(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).
These obligations do not, however, require a report to detail the entirety of the
expert’s trial testimony. Kleiman, 2020 WL 6729362, at *7 (“Rule 26(a)(2)(B) does not
require that a report recite each minute fact or piece of scientific information that might
be elicited on direct examination to establish the admissibility of the expert opinion under
Daubert. Nor does it require the expert to anticipate every criticism and articulate every
nano-detail that might be involved in defending the opinion on cross examination at a
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Daubert hearing.”) (internal quotations omitted)).
Mukamal’s report meets this standard. Defendant says that Mukamal failed to
provide his reasoning behind his consideration of certain data. However, the detail
provided in his steps -- which is substantial -- makes the reasoning obvious.
Mukamal is not required to include in his report a sentence specifically saying that
he is assessing how many FTCs John Hancock used so that he can determine how much
John Hancock’s tax liability was reduced by FTC use. This can be easily deduced from
the graphs itemizing John Hancock’s FTC utilization and Mukamal’s statement that
Defendant “derived a financial benefit to the extent it utilized foreign tax credits
generated by the Plaintiffs’ assets managed by [John Hancock]. For this same reason,
Defendant’s criticism about Mukamal’s use of the term “monetary relief” is equally
unpersuasive; especially given the fact that Mukamal states that “monetary relief claimed
by the Plaintiffs are [sic] calculated as the excess of the (i) RPS FTC utilized by [John
Hancock] over (ii) taxes paid by [John Hancock] on RPS FTC.”
An expert need not provide a pre-opinion glossary defining the obvious terms and
procedures in his report in order for the report to be compliant with Rule 26.
Moreover, even if Mukamal’s initial report was deficient, the Undersigned finds
that any deficiency is harmless. Generally, courts consider four factors when evaluating
whether a party’s failure to disclose is substantially justified or harmless: “(1) the
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importance of the excluded testimony; (2) the explanation of the party for its failure to
comply with the required disclosure; (3) the potential prejudice that would arise from
allowing the testimony; and (4) the availability of a continuance to cure such prejudice.”
Managed Care Sols., Inc. v. Essent Healthcare, Inc., No. 09-60351-CIV, 2010 WL 1837724, at
*4 (S.D. Fla. May 3, 2010).
Here, factors one and three weigh heavily in favor of finding any so-called
deficiency is harmless. This is Plaintiffs’ only damages expert; thus, the testimony is
crucial to their case. Finally, the Undersigned finds there would be no prejudice to
Defendant if this testimony were admitted. Defendant had an opportunity to take
Mukamal’s deposition and inquire about the issues it felt were unexplained. Further, any
claim of prejudice by Defendant is undermined by the fact that (1) its own expert was
able to issue a rebuttal report and (2) it was able to file a comprehensive Daubert motion.
For these reasons, the Undersigned denies Defendant’s request to exclude
Mukamal on this ground.
2. Purported Factual Errors
Defendant contends that Mukamal’s calculations are premised on material factual
missteps which render the entire premise of his calculations completely unreliable.
According to Defendant, Mukamal’s first factual misstep is assuming that John Hancock
receives a dollar-for-dollar reduction for the net-of-foreign-tax income and his second
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factual misstep is ignoring the totality of John Hancock’s tax position.
In Mukamal’s report, he assumes that John Hancock is taxed on only the “grossedup”18 amount of the Plan’s foreign source income. This is because Mukamal assumes that
John Hancock receives a corresponding dollar-for-dollar reduction in its taxes on the netof-foreign-tax-income by increasing its reserves. According to Defendant, it reports the
full amount of foreign income on its taxes, not just the “grossed-up” amount and
Mukamal’s assumptions to the contrary are speculative and unsupported.
Plaintiffs respond that witnesses from John Hancock’s tax department confirmed
that, “when income is received in a separate account tied to a retirement plan, [John]
Hancock increases its reserves by an offsetting amount, which eliminates the possibility
that [John] Hancock pays income taxes on such amounts received in the separate
accounts, because reserve increases create a tax deduction.” [ECF No. 268 (citing ECF
Nos. 268-2 at 108:7-109:10; 122:2-24; 268-3 at 72:2-13)]. This, they argue, more than

The “grossed-up” amount refers to the amount of foreign taxes paid by the plan.
By way of example, if a mutual fund receives a $100.00 dividend in foreign income and
is taxed at 10%, then the mutual fund will pay 10% in taxes to the foreign government
and the remaining $90.00 will go into the mutual fund. Because Defendant is the legal
owner of the mutual fund, it reports the full $100.00 dividend as income. This is because
under the tax code, Defendant must report the $90.00 that went into the mutual fund and
add the “grossed-up” $10.00 that was paid in foreign taxes.
18

The entire basis of Plaintiffs’ lawsuit arises from the reality that, in addition to
receiving this tax obligation, Defendant also receives the corresponding $10.00 FTC.
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supports Mukamal’s assumption.
Defendant takes the position that, although these witnesses both spoke generally
on reserve deduction, neither confirmed a dollar-for-dollar reduction. Defendant’s
distinction is unpersuasive. Certainly, if Defendant put forth evidence to show that it did
not actually receive a dollar-for-dollar reduction, then its position would stand a stronger
chance of being well taken. Defendant has not done this, though. Instead, Defendant is
taking a “maybe I do, maybe I don’t” approach to whether it receives a dollar-for-dollar
reduction. This equivocal assertion is insufficient to undermine the foundation of
Mukamal’s opinion to the point where it cannot be presented to a jury.
The Court’s gatekeeper role is not intended to supplant that of the jury:
“[v]igorous 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.” Allison, 184 F.3d at 1311 (quoting Daubert, 509 U.S. at 596)
(alterations in original). “Indeed, ‘in most cases, objections to the inadequacies of a study
are more appropriately considered an objection going to the weight of the evidence rather
than its admissibility.’” Quiet Tech. DC–8, Inc., 326 F.3d at 1345 (quoting Hemmings v.
Tidyman's Inc., 285 F.3d 1174, 1188 (9th Cir. 2002)).
This type of complained-of flaw (if it is even a flaw) is similar to that addressed in
Quiet Tech., where the Eleventh Circuit upheld the district court’s decision to admit
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evidence challenged as “fail[ing] to use the proper equation” and “that the specific
numbers [the expert] used were wrong” because these types of “alleged flaws in [an
expert’s] analysis are of a character that impugn the accuracy of his results, not the
general scientific validity of his methods.” Id.
Maybe Defendant receives a dollar-for-dollar reduction, maybe it does not receive
a dollar-for-dollar reduction. If it does not receive a dollar-for-dollar reduction and has
admissible evidence to prove that this is the case, then certainly the area is ripe for
Defendant to undermine Plaintiffs’ entire damages theory on cross-examination.
Defendant’s cryptic concerns, however, are insufficient to justify exclusion.
Defendant’s next contention (i.e., that Mukamal’s opinion is unreliable because it
fails to properly take into account John Hancock’s overall tax position), suffers from the
same flaws as its earlier arguments concerning reductions.
First, Defendant claims that Mukamal didn’t account for the fact that its 2017 and
2019 tax returns are still subject to audit. In advancing this argument, Defendant ignores
the principle of Bahr v. NCL (Bahamas) Ltd., 19-CV-22973, 2021 WL 4845789 (S.D. Fla. Oct.
18, 2021), a case cited in its reply. Bahr supports the proposition that an expert may offer
damages calculations based on speculation about future events. Although Defendant’s
2017 and 2019 tax returns have been submitted to the IRS, Defendant claims the potential
for change -- a speculative future event -- renders Mukamal’s opinion flawed to the point
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necessitating exclusion.
This, like Defendant’s argument on reductions, is properly addressed via crossexamination at trial, rather than complete exclusion.
Second, Defendant claims that Mukamal failed to account for the fact that other
provisions of the Internal Revenue Code “impact the extent to which foreign taxes paid
result in an FTC and the ultimate impact of any such FTC on the taxpayer’s liability.”
[ECF No. 259]. Defendant alleges that this is a fatal misstep by Mukamal because it files
its tax returns as a consolidated group, which increases the complexity of its tax filings. As
examples of the sections of the tax code it claims Mukamal failed to consider, Defendant
cites I.R.C. §§ 38(a), (c); 383(c); and 901(k)(1)(A)(ii).
As Plaintiffs correctly note in their response, “there is no evidence in the record
that any other provisions of the [Internal Revenue] Code actually interacted with the
FTCs or John Hancock’s tax liability to affect the substantial benefit that John Hancock
extracted from the FTCs.” [ECF No. 268]. The Undersigned also notes that John Hancock
has not even argued that there is actual evidence that these other provisions impacted its
FTC use.
Defendant attempts to paint this line of reasoning as shifting the burden onto it to
disprove reliability. This is an inaccurate characterization of Plaintiffs’ argument.
Although the burden is on Plaintiffs to prove reliability, Defendant cannot simply allege
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speculative tax implications -- which it has not shown have an actual impact on the FTCs
that Mukamal considered -- and then expect Plaintiffs to counter this speculation.
Mukamal’s analysis, when broken down, is fairly simple: (1) How many FTCs did
John Hancock have available; (2) How many of the available FTCs originated from
qualifying plans; (3) How many FTCs did John Hancock use each year and by how much
money did the use decrease its tax obligation; and (4) Was the value decreased by any
additional taxes John Hancock had to pay on the “grossed-up” income.
The speculation that (1) John Hancock could have used other deductions, (2) may
have other credits available to use in the stead of FTCs, or (3) may sometimes be
prohibited from using FTCs is a basis to attack Mukamal’s evaluation on crossexamination (if John Hancock can make an evidentiary showing that these tax provisions
are relevant, which it has not done in its motion), but it is not a basis to simply exclude
the testimony.
3. Purported Legal Errors
Defendant also makes the argument that Mukamal’s opinion should be excluded
because it is based on an incorrect statement of law provided to him by Plaintiffs’ counsel.
According to Defendant, the Internal Revenue Code does not allow mutual funds to pass
through tax credits; instead, it allows mutual funds to pass through tax obligations.
Plaintiffs disagree and argue that Defendant ignores other relevant provisions of the tax
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code and is attempting to “foster semantic confusion.” Although Defendant filed a Reply
addressing many of the arguments raised by Plaintiffs in response to its earlier challenges
to Mukamal’s opinion, it neglected to address any of the arguments Plaintiffs raised in
response to this claim.
While Defendant’s argument here focuses on Internal Revenue Code provisions,
in the Undersigned’s view, this is merely a re-purposing of Defendant’s earlier argument
that Mukamal erred by assuming John Hancock received a dollar-for-dollar reduction for
the net-of-foreign income. In support of its current position, Defendant cites I.R.C. §
853(b)(2)(A)-(B) and argues this means the legal owner of the mutual fund “must include
in gross income and treat as paid by him his proportionate share of the foreign taxes paid
by the fund, i.e., gross-up the taxpayer’s revenue to include foreign taxes paid by the
mutual fund.” [ECF No. 259] (internal quotations and emphasis removed).
The Undersigned rejects this argument about the “unconsidered tax obligation”
for the same reasons I rejected it in Defendant’s reliability challenge. While Defendant is
correct that I.R.C. § 853 passes through a tax obligation, Mukamal is not incorrect (and
Defendant downplays the fact) that it also passes through a tax credit. See Mertens Law
of Federal Income Taxation § 41:19. Foreign Tax Credit (stating that Section 853 allows
the mutual fund to “pass[] through to its shareholders a credit or deduction for the
foreign taxes it has paid during its taxable year”).
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Despite conceding that, under I.R.C. §§ 853, 901-09, John Hancock “may [] also
qualify for offsetting foreign tax credits,” it claims that Mukamal erred when he assumed
(and opined) that John Hancock “received the benefit of passed-through tax credits
instead of a passed through tax obligation.” Defendant’s argument is internally
inconsistent (which is perhaps why it was left out of its reply memorandum). As the
Undersigned sees it, it does not seem certain that Mukamal has made a fundamental error
on this issue.
Defendant, of course, can challenge this point on cross-examination if it believes
the position to be merited. There is, however, no basis to exclude Mukamal’s testimony
on any of the grounds alleged by Defendant.
iv. Doctor David W. LaRue, Ph.D.19
LaRue is an Emeritus Professor of the University of Virginia, where, for 25 years,
he taught graduate and undergraduate courses in the fields of federal taxation, financial
accounting, international finance, and economic analysis. He has published several
articles and testified on tax issues before the Ways and Means Committee of the U.S.
House of Representatives and before the Treasury Department.

A copy of LaRue’s expert report, including his qualifications, is filed in full on
CM/ECF. [ECF No. 264-2]. There are no redactions in the publicly-filed version of his
report. The Undersigned’s summary of LaRue’s background and opinions is derived
from this exhibit.
52
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Defendant retained LaRue to “analyze and opine” on assertions made by Plaintiffs
in their Class Action Complaint and Motion for Class Certification. LaRue was also asked
to provide answers to the following questions posed by defense counsel:
(1) Do U.S. foreign tax credits have any intrinsic, stand-alone economic
value?
(2) From an economic perspective, is the value of a foreign tax credit equal
to the “face amount of the credit?
(3) Can one taxpayer’s foreign tax credits be sold exchanged, assigned, or
allocated, and distributed to another taxpayer?
(4) Were the Foreign Tax Credits at issue in this dispute “assets of the
Plan”?
(5) Are U.S. foreign tax credits “compensation” for service rendered?
(6) Did Defendant “improperly [retain], for its own benefit, foreign tax
credits . . . arising from assets and investments held for the benefit of the
Plan”? Was Hancock “enriched” by “more than $100 million” as a
result?
(7) Were the Plan’s assets “diminished by the amount of the foreign tax
credits retained by Defendant but not credited to the Plan and the
income those overcharges would have earned had they been properly
credited to the Plan’s Account”? Stated differently, was the Defendant’s
use of these credits to reduce its U.S. taxes “at the expense of the Plan
and its participants”?
(8) Would reasonable U.S. investors invest in the stock or securities of a
foreign corporation if dividends, interest or capital gains from that
investment was expected to incur foreign taxes for which the investor
did not expect to receive a foreign tax credit?
Before substantively addressing these questions, LaRue provides an overview of
the relevant provisions of the tax code and how these provisions interact with mutual
funds similar to the Plan.
Plaintiffs seek to strike discrete paragraphs from LaRue’s report on isolated or
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overlapping grounds: (1) the opinions in paragraphs 15-93 and 97-102 of LaRue’s initial
report because they are generalized opinions which are unconnected to the facts of this
case; and (2) paragraphs 89-96 of his initial report as impermissible legal conclusions.
1. Generalized Opinions
Plaintiffs claim that paragraphs 15-93 and 97-102 of LaRue’s report are irrelevant
because the paragraphs concern “the general structure or operation of the U.S. tax code.”
[ECF No. 264]. Plaintiffs highlight that their claims are brought under ERISA, not under
the U.S. tax code. Id. Defendant responds that the Complaint concerns its retention of
FTCs, which are a creature of the U.S. tax code and that Plaintiffs’ own expert, Dr. De
Simone, admits that “calculations with respect to foreign tax credits can be very
complicated.” [ECF No. 276].
Although Plaintiffs argue for the exclusion of 83 paragraphs (approximately 35
pages of LaRue’s 99-page report), they provide only two examples of LaRue’s
purportedly irrelevant opinions: (1) instances where LaRue states the net benefit of FTCs
to the usual taxpayer is zero; and (2) LaRue’s opinion that FTCs cannot be sold,
exchanged, assigned, or allocated to another taxpayer. [ECF No. 264].
The Undersigned disagrees with Plaintiffs in large part and finds that the majority
of LaRue’s opinions on this subject matter are relevant to the claims and could be helpful
to the jury. By way of example, whether FTCs can be sold, exchanged, assigned, or
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allocated to another taxpayer, while not determinative, is certainly relevant to Plaintiffs’
claim that FTCs have monetary value. Indeed, if the tax code allowed for the sale or
transfer of FTCs, then it would likely be a focus of Plaintiffs’ argument in support of a
determination that FTCs have monetary value.
In other areas, LaRue explains how FTCs originate, when they may be applied to
offset a tax obligation, distinctions between FTCs and other foreign taxes, and the general
tax requirements of a company in John Hancock’s position. Certainly, all of these topics
could have an impact on a jury’s decision as to whether an FTC has value and, if so, how
much value -- decisions which could impact questions the jury must decide about
monetary value, compensation, and plan assets.
Thus, in the Undersigned’s view, the nature of FTCs and how they operate within
the tax system is relevant to this case and is an appropriate topic for expert testimony. See
e.g., Fed. R. Civ. P. 702 committee note (“Most of the literature assumes that experts testify
only in the form of opinions. The assumption is logically unfounded. The rule
accordingly recognizes that an expert on the stand may give a dissertation or exposition
of scientific or other principles relevant to the case, leaving the trier of fact to apply them to
the facts.” (emphasis added)); United States v. Barnette, 800 F.2d 1558, 1569 (11th Cir. 1986)
(permitting an IRS agent to testify about tax consequences of the defendant’s actions),
superseded by statue on other grounds, Blaik v. United States, 161 F.3d 1341 (11th Cir.
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1998); United States v. Tartaglione. 815 F. App’x 648, 651 (3d Cir. 2020) (experts can provide
background testimony to contextualize relevant facts); In re Trasylol Prod. Liab. Litig., 2010
WL 4259332, at *9 (permitting expert to testify about factual basis for FDA drug approval,
including by “explaining the regulatory context, defining any complex or specialized
terminology and drawing inferences that would not be apparent without the benefit of
regulatory expertise”).
The large majority of LaRue’s analysis in the paragraphs Plaintiffs seek to strike
falls within this permissible realm. However, the Undersigned finds that the bullet point
under Paragraph 91 and the entirety of Paragraph 98 have little to no relevance to this
case because they speak to only the typical taxpayer’s use of FTCs, not to a taxpayer in
Defendant’s situation. Thus, the Undersigned excludes these paragraphs and prohibits
LaRue from offering any testimony on the effect FTCs have on the usual or typical
taxpayer.
2. Legal Conclusions
Plaintiffs next seek to exclude LaRue’s opinions in paragraphs 89-93 and 94-96 as
impermissible legal conclusions. In paragraphs 89-93, LaRue opines that FTCs are not
plan assets and in paragraphs 94-96, LaRue opines that FTCs do not qualify as
compensation. Despite seeking to prohibit Plaintiffs’ experts from offering the
contrasting opinions (i.e., FTCs are plan assets and do qualify as compensation) as legal
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conclusions, John Hancock argues that these are not impermissible legal conclusions
because they are based on the tax code and are appropriate under LaRue’s expertise.
Defendant’s positions are inconsistent. Here, John Hancock falls victim to the very
same gap in logic which it asserted against Plaintiffs in its Reply in support of striking
portions of Levy’s testimony as legal conclusions. [ECF No. 280 (“[The argument that
Levy’s opinions are not legal conclusions] cannot be squared with Plaintiffs’ own
arguments in support of their motions to exclude the testimony and expert reports of
John Hancock’s experts [as legal conclusions.]”)].
Although Defendant attempts to distinguish LaRue’s opinions -- by arguing that
LaRue is “explain[ing] the policy and purpose behind certain provisions of the [I.R.C.]
relevant to FTCs and how those provisions actually work -- this argument is unsupported
by LaRue’s report and suffers from a relevancy issue, if accurate.
First, LaRue begins paragraphs 89-93 with the following question and answer:
“Question 4 Were the Foreign Tax Credits at issue in this dispute ‘assets of the plan’? []
Short Answer: No.” Likewise, he begins paragraphs 94-96 as follows: “Question 5 Are
U.S. foreign tax credits ‘compensation’ for services rendered? Short Answer: No.” In the
analysis section of the two sets of paragraphs, LaRue’s opinions are replete with legal
standard and legal conclusion testimony. As argued by Defendant in its many motions
to strike similar opinions by Plaintiffs’ experts, this type of expert opinion is inadmissible.
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Defendant makes another unpersuasive attempt to distinguish LaRue from
Plaintiffs’ experts by contending that LaRue’s opinions are limited to the tax code. While
the tax code is certainly relevant to explain the nature and creation of FTCs, whether
something qualifies as compensation or a plan asset under ERISA is to be determined by
ERISA’s framework, not the Internal Revenue Code. Thus, if, as Defendant argues,
LaRue’s opinions are whether FTCs are compensation or plan assets under the tax code,
then the opinions are also irrelevant. If LaRue’s opinions are whether FTCs are
compensation or plan assets under ERISA, then the opinions are relevant. Under either
situation, however, they are impermissible legal standards or legal conclusions.
At bottom, although LaRue can testify as to the facts intrinsic to FTCs that he
believes it important for the jury to know, for the same reasons the Undersigned is
prohibiting Plaintiffs’ experts from offering these opinions, LaRue cannot offer an
opinion as to whether FTCs are compensation or plan assets.
v. Steven Gissiner20
Gissiner has worked in the retirement industry for approximately forty years. He
previously served in consulting roles managing teams providing recordkeeping and
consulting services to clients and provided consulting services to clients directly in the

A copy of Gissiner’s expert report, including his qualifications, is publicly filed in
full, in unredacted form, on CM/ECF. [ECF No. 265-2]. The Undersigned’s summary of
Gissiner’s background and opinions is derived from this exhibit.
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areas of plan design, compliance, administrative procedures, and more.
Currently, Gissiner consults with clients in the areas of retirement plan cost
determination and fee benchmarking, understanding and implementing administrative
fee arrangements, developing and distributing Requests for Proposals and Requests for
Information, monitoring the performance of plan investment funds, and providing
consulting and expert witness services in the area of retirement plan fee litigation.
Gissiner’s opinions cover the following topics: (1) background on the litigation and
an overview of recordkeeping services and FTCs; (2) ability of proposed class members
to obtain information on FTC treatment from Defendant; (3) whether additional
disclosure of FTC treatment would have affected the number of individuals engaging
Defendant’s services; (4) whether Plaintiffs’ proposed fee concessions would have
affected the total charged recordkeeping fees; and (5) whether Defendant’s compensation
was in line with that of other recordkeepers.
Plaintiffs seek to strike large portions of Gissiner’s opinions in his initial report on
the basis that the opinions are either irrelevant or are an improper factual narrative.
1. Relevancy of Opinions
Plaintiffs argue that Gissiner’s opinions offered in paragraphs 42-63, 64-80, and 9186 should all be stricken because they bear no “relevance to the actual claims that
Plaintiffs have asserted in this case -- specifically, that John Hancock’s unauthorized
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retention of benefits from foreign tax credits generated by ERISA retirement plans
breached its fiduciary duty of loyalty and constitutes a prohibited transaction under
ERISA.” Defendant takes the opposite position and contends that Plaintiffs’ own expert,
Levy, also addressed many of these topics.
In the first set of opinions Plaintiffs seek to exclude (paragraphs 42-63), Gissiner
opines generally on whether consumers would have chosen a different recordkeeper if
John Hancock had provided additional disclosures about its FTC retention practice.
Gissiner organizes his opinions under the following headings and subheadings:
V. Based on My Experience, It Is My Opinion that Additional Disclosures of John
Hancock’s Allowance of Foreign Tax Credits Would Not Have Affected How
Many Proposed Class Members and Proposed Class Advisors Evaluated
Recordkeepers and Investment Options
A. Foreign Tax Credits Are Not Among the Various Factors Plan Sponsors
and Plan Advisors Typically Consider in their Evaluation of Plan
Recordkeepers
1. Plan sponsors and plan advisors typically focus their evaluation
of recordkeepers on the types and quality of administrative
services recordkeepers offer and the overall fee for these services
2. The Request for Proposal processes retirement plans undertake
to evaluate recordkeepers do not typically consider foreign tax
credits
3. Foreign tax credits are not typically featured among the wide
variety of services that recordkeepers advertise
B. Foreign Tax Credits Are Not Relevant Among the Various Factors Plan
Sponsors and Plan Advisors of Retirement Plans Typically Consider in
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their Evaluation of Plan Investment Options, Including International
Funds
1. While plan lineup design and investment option selection varies
from plan to plan, most, if not all, plans offer investment options
that provide participants exposure to international securities that
may pay foreign taxes
2. When evaluating international funds, plan sponsors focus on
whether the fund addresses participant needs and not on
whether, or to what extent, the fund pays foreign taxes
The substance of Gissiner’s opinions tracks closely with the heading and
subheading under which the opinion falls.
Defendant argues that these opinions about industry practice are relevant because
Plaintiffs base their claims, in part, on “John Hancock[’s] . . . alleged failure to ‘disclose
its receipt and retention of the Plan Foreign Tax Credits.’” [ECF No. 277]. According to
Defendant, Gissiner’s opinions about the type of disclosures he observes in the retirement
industry and his experience as to how plan sponsors and their advisors treat disclosures
will assist the trier of fact in determining a fact at issue. Defendant also argues that
Plaintiffs’ expert, Levy, opines that Securian (the only recordkeeper which credits plans
with FTCs) engages in the best practice.
These arguments are unpersuasive. The core issues are whether John Hancock’s
use of the FTCs was a breach of its fiduciary duty (assuming it had one) and if this use
and retention of the FTCs was a prohibited transaction under ERISA. Gissiner’s opinions
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offer no insight into those issues, nor do they make any relevant fact more or less likely;
his opinions, instead, address whether FTCs are a factor considered in choosing a plan,
whether anybody would change plans if FTCs were advertised more prominently as a
feature, and whether evaluating entities consider FTCs in their evaluation.
Concerning the issue of Defendant’s disclosures about its use of FTCs, Plaintiffs
have taken inconsistent positions on whether disclosure is relevant. Indeed, as noted
earlier, Plaintiffs’ counsel provided an unclear answer about whether he would even seek
to introduce evidence on the topic.
But, setting aside the issue of whether the disclosure issue will be presented at
trial, Defendant successfully obtained the exclusion of Levy’s best practices opinion. See
supra Section III(a)(ii)(2). Therefore, its argument that Levy is being permitted to testify
about best practices (and that Gissiner should therefore be afforded the same flexibility)
is no longer valid.
Accordingly, Gissiner is not permitted to offer any of the opinions contained in
paragraphs 42-63.
Plaintiffs also contend that paragraphs 64-80 should be excluded as irrelevant to
the issues in the case. In these paragraphs, Gissiner opines generally on whether a
recordkeeping fee concession for FTCs would have affected the total recordkeeping fees
charged to members. Gissiner organizes his opinions on this topic under the following
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headings and subheadings:
VI. Based on My Experience, It Is My Opinion that Plaintiffs’ Proposed Fee
Concessions for Foreign Tax Credits Would Not Have Affected the Total
Recordkeeping Fees for Many Plans of the Proposed Class
A. Recordkeepers Do Not Generally Provide Fee Concessions for
Foreign Tax Credits
B. Fee Concessions for Foreign Tax Credits Proposed by Plaintiffs Are
Unlikely to Materially Change a Plan’s Total Recordkeeping Fee
1. Fee concessions must be evaluated in the context of each Plan’s
overall recordkeeping fee arrangement.
2. Implementing a fee concession for foreign tax credits, as Plaintiffs
assert, would not necessarily decrease total recordkeeping fees.
C. Foreign Tax Credits Were Not Material to Named Plaintiffs’
Recordkeeping Fee Arrangement with John Hancock
The substance of Gissiner’s opinions tracks closely with the heading and
subheading under which the opinion falls.
Plaintiffs claim that Gissiner’s opinions on these topics are irrelevant to either their
duty of loyalty claim (and whether there is a conflict of interest) or their prohibited
transaction claim. Defendant says these opinions are relevant because ERISA’s duty of
loyalty provision, set forth in ERISA § 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A), require
fiduciaries to “defray[] reasonable expenses of administering the plan.” 29 U.S.C. §
1104(a)(1)(A)(ii). Because Gissiner’s opinions assess whether John Hancock’s FTC
retention impacted its recordkeeping fees, Defendant says these opinions are relevant to
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the requirement it defray the reasonable expenses of administering the plan.
Although Plaintiffs’ Class Action Complaint does not mention the defrayment
provision or allege that Defendant failed to properly defray the costs, it does include an
allegation that “[h]ad Defendant properly exercised its duties, the expenses and fees
under the Contract charged against the Assets would have been reduced by the amount
of the Plan Foreign Tax Credits.” [ECF No. 1, ¶ 62]. Further, in its motion for class
certification, Plaintiffs state, “[i]n profiting from foreign tax credits without disclosing
them or passing through a commensurate benefit to Plans that generated such credits,
John Hancock failed to act solely in the best interest of the Plans and failed to defray
reasonable expenses of administering the Plans.” [ECF No. 94].
However, as alleged by Defendant in a separate filing addressing Plaintiffs’
purported inconsistent positions, Plaintiffs have shifted theories throughout this
litigation. [ECF No. 312]. Currently, it is unclear to the Undersigned whether Plaintiffs
still intend on proceeding on either of these theories or whether the fact that Mukamal -Plaintiffs’ only damages expert -- addresses only unjust enrichment or disgorgement
theories is evidence that they have abandoned this theory of liability and damages.
Because the Undersigned does not know whether Plaintiffs will be proceeding on
damages or liability theories which make this testimony relevant, Plaintiffs’ request to
strike Gissiner’s opinions on this subject is denied without prejudice. Plaintiffs may
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renew this argument immediately before or during trial.21
Plaintiffs’ final relevancy argument attacks Gissiner’s opinions in paragraphs 8186. In these paragraphs, Gissiner offers a general opinion on the reasonableness and
competitiveness of John Hancock’s recordkeeping compensation. Gissiner organizes his
opinions on this topic under the following headings and subheadings:
VI. Contrary to Plaintiffs’ Claim, John Hancock’s Compensation Was Reasonable
and In Line with the Fees Received by other Recordkeepers
A. Plaintiffs’ Claim that John Hancock Received “More than
Reasonable Compensation” Is Implausible Given the Competitive
Nature of the Retirement Plan Recordkeeping Industry
B. John Hancock’s Total Plan Fees for the Named Plaintiff Plan at
Inception Were in Line with the Total Plan Fees Received by Other
Recordkeepers
Again, Gissiner’s opinions in the relevant paragraphs tracks closely with the
heading and subheading under which the opinion falls.
Plaintiffs’ arguments in support of exclusion of these opinions and Defendant’s
arguments in support of inclusion of these opinions are identical to the arguments made
regarding Gissiner’s opinions about the effect an FTC concession would have on the
recordkeeping fees. The Undersigned’s ruling on this issue is the same: it is currently
unclear whether Plaintiffs intend on presenting a failure to defray or more-expensive fee

The potential vitality of Gissiner’s opinions on these specific issues will, of course,
hinge on the Court’s ruling on John Hancock’s summary judgment motion.
65
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theory, so Plaintiffs’ request is denied without prejudice. Plaintiffs may renew this
argument immediately before or during trial.
2. Improper Factual Narrative
Plaintiffs argue that Gissiner’s opinions in paragraphs 75-80 should be excluded
because he “simply summarizes deposition testimony and presents it as an opinion.”
[ECF No. 265].
Gissiner begins this section in paragraph 75 by stating “[d]ocumentary evidence
reflects that additional disclosures of John Hancock’s allowance of foreign tax credits or
fee concessions for foreign tax credits would not have affected the recordkeeping fee
arrangement between the Named Plaintiffs and John Hancock for the Named Plaintiff
Plan.” In the remaining portion of paragraph 75 and in paragraphs 76-79, Gissiner
summarizes deposition testimony and available evidence.
Ultimately, in paragraph 80, Gissiner concludes with a near-identical sentence to
the first sentence in paragraph 75: “Based on the evidence described above, it is my
opinion that additional disclosures of John Hancock’s allowance of foreign tax credits or
fee concessions for foreign tax credits would not have affected the recordkeeping fee
arrangement between the Named Plaintiffs and John Hancock for the Named Plaintiff
Plan.” Elsewhere in this portion of Gissiner’s opinion, it becomes abundantly clear that
what Gissiner means by these statements is that, even if Defendant had disclosed its FTC
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retention, Plaintiffs (the Romanos, specifically) would not have chosen an alternative
recordkeeper:
Despite having information on foreign tax credits and access to John
Hancock’s sales representatives, [the Romanos] and Mr. Searcy never
sought to renegotiate the recordkeeping fee arrangement between [the
Romanos’] Plan and John Hancock throughout the Proposed Class Periods,
or to replace John Hancock with a recordkeeper that could incorporate fee
concessions for foreign tax credits in its new recordkeeping fee
arrangement -- indicating that foreign tax credits are not relevant to how
[the Romanos] select recordkeepers or negotiate fee arrangements.
Defendant contends that this section is permissible because it provides necessary
background so that the jury can understand how recordkeepers are chosen by plan
sponsors and fiduciaries. Plaintiffs note in their reply that Gissiner’s conclusion
paragraph is devoid of analysis of industry custom or norm.
The Undersigned agrees that this is an improper factual narrative. Gissiner’s fiveparagraph summary of record evidence leads him to the conclusion that the
recordkeeping fee arrangement would not have been altered by FTC retention disclosure.
This is not what Defendant argues the opinion is -- an industry custom. Rather, it is a
specific opinion about the Romanos’ state of mind.
This type of expert opinion is inadmissible. In re Trasylol Prod. Liab. Litig, 2010 WL
4259332, at *8 (“The question of intent or motive is a classic jury question and not one for
experts.”). Although this is not an argument specifically raised by Plaintiffs, Defendant
shoulders the burden of establishing the admissibility of its experts’ opinions. Its
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proffered justification is factually inaccurate, and the offered opinion and the evidence
summary are both inadmissible.
For these reasons, Gissiner is prohibited from providing testimony on his opinions
contained in paragraphs 75-80.
b. REBUTTAL REPORTS
A rebuttal expert witness' testimony is permitted under Rule 26 only if it
“‘contradict[s] or rebut[s] evidence on the same subject matter identified by’ an opposing
expert.” Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-ORL-28TBS, 2013 WL
5781274, at *16 (M.D. Fla. Oct. 25, 2013) (citing Fed. R. Civ. P. 26 (a)(2)(D)(ii)); see also In re
Trasylol Prods. Liab. Litig., 2010 WL 4065436, at *2 (citation omitted) (stating rebuttal
testimony must “directly address[] an assertion raised by an opponent's expert[]”). A
rebuttal witness cannot “advance new arguments or new evidence.” Blake v. Securitas Sec.
Servs., Inc., 292 F.R.D. 15, 17 (D.D.C. 2013) (quotation omitted).
As a result of this principle, in situations where the Undersigned has struck the
opinion an expert is seeking to rebut, I will also be striking the rebuttal opinion because,
once the originating opinion is eliminated, there is no longer anything to contradict or
rebut22.

Rebut vb. (14c) To refute, oppose, or counteract (something) by evidence,
argument, or contrary proof. REBUT, Black's Law Dictionary (11th ed. 2019).
22

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i. Pingree23
Pingree authored a rebuttal report challenging the opinions of Defendant’s expert,
Gissiner. In its own affirmative request for relief, Defendant seeks to strike Pingree’s
report in its entirety or, alternatively, strike isolated portions. [ECF No. 260]. Defendant
specifically seeks to: (1) strike pages 4 (beginning at line 5) through 5 (through line 14)
and 6 (beginning at line 8) through 7 (through line 3) because Pingree opines on whether
John Hancock engaged in a prohibited transaction; (2) strike pages 6 (beginning at line 1)
through 7 (through line 3) as impermissible and irrelevant legal conclusions; and (3)
strike page 7 (beginning at line 4) through 8 (through line 3) as an impermissible contract
interpretation. Defendant also seeks to strike the entire rebuttal report because it is merely
a legal argument in response to Gissiner’s report.
In the first section Defendant challenges as an improper legal conclusion, Pingree
opines about whether John Hancock engaged in a prohibited transaction. This section
shares many similarities with -- and is often identical to -- Pingree’s prohibited
transaction opinion in his initial report, which the Undersigned has already excluded, see
supra Section III(a)(i). In fact, Pingree begins this section by informing the reader that he
is “restat[ing] the prohibited transaction rules as listed on page 15 through page 16 of

Pingree’s rebuttal report is filed in full (without redactions) on CM/ECF. [ECF No.
260-2]. The Undersigned’s references to his opinions are derived from this exhibit.
23

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[his] Expert Witness Report.” (emphasis added).
In the opinions that follow this introduction, Pingree restates ERISA regulations,
implicitly opines that FTCs are compensation, and concludes that “[b]ecause the
Defendant failed to disclose the foreign tax credits it received and retained as direct or
indirect compensation, the compensation it receives as a result of its agreements with the
Plans are not “reasonable”, within the meaning of section 408(b)(2) of ERISA, and thus
constitute prohibited transactions.” These paragraphs contain either unhelpful legal
standards testimony or impermissible legal conclusions. For the same reasons the
Undersigned struck this type of opinion from Pingree’s initial report, I grant Defendant’s
request to strike it from Pingree’s rebuttal.
John Hancock’s second request includes the first six lines of page six. Here, Pingree
offers legal standard testimony couched with contract interpretation (“Nothing in the
disclosed materials indicates that the Defendant described the economic benefit
produced by foreign tax credits received by it from the investment of Plan assets”) and a
legal conclusion (“The Defendant’s failure to make such disclosure required to secure the
exemptions renders its contract or arrangement with the Plan unreasonable under
408(b)(2) of ERISA . . .”). For the same reason I granted Defendant’s request to strike
similar opinions in Pingree’s initial report and from other expert’s opinions, I grant its
request to strike this section as well.
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Defendant next seeks to strike the pages from Pingree’s rebuttal in which he opines
on whether John Hancock complied with the Plan Contract. In this section of Pingree’s
rebuttal report, he begins by stating, “[f]urther it can be argued that the Defendant has
failed to conform to its own contracts . . .” and ends by stating “the Defendant has arguably
violated its own promise to disclose and adjust its fees ‘from all revenue it derives from
the investment of Plan assets.’”
To begin, the equivocal nature of Pingree’s opinion on this subject (i.e., “can be
argued” and “arguably violated” renders it unduly speculative and of no assistance to the
trier of fact. See Allison, 184 F.3d at 1319-21 (affirming exclusion of expert’s opinion that
there was a possibility that the plaintiff’s breast implants played a role in her medical
improvement because the degree of certainty was insufficient) (emphasis added); Bowers
v. Norfolk Southern Corp., 537 F. Supp. 2d 1342 (M.D. Ga. 2007) (expert’s opinion that the
plaintiff “may have injured his back while sitting on a locomotive seat” conveyed only
that something is “merely possible, not probable” which did not “logically advance a
material aspect” of the plaintiff’s case) (emphasis supplied).
However, even if the opinion had been provided in a more-certain way, the
Undersigned agrees that this opinion amounts to no more than contract interpretation
and the Undersigned therefore grants Defendant’s request. Loeb v. Hammond, 407 F.2d
779, 781 (7th Cir. 1969) (“The question of interpretation of the contract is for the jury and
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the question of legal effect is for the judge. In neither case do we permit expert
testimony.”).
Defendant also takes the position that the entirety of Pingree’s rebuttal report
should be stricken as pure legal argument. In support of this position, Defendant
contends that Pingree’s report reads more like a Daubert motion than it does like a rebuttal
expert report. As Defendant correctly notes, Plaintiffs do not directly address this
argument in their response.
The Undersigned has already found it appropriate to strike the entirety of
Pingree’s initial report for myriad reasons. I have also found it appropriate to strike large
sections of Pingree’s rebuttal report for offering the same impermissible opinions from
his initial report. The Undersigned agrees with Defendant that Pingree’s rebuttal report
reads like the rebuttal report excluded in Cordoves, 104 F. Supp. 3d at 1365. Moreover,
Plaintiffs have also failed to respond to Defendant’s argument on this point. Phillips v.
Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (“[A] litigant who fails to press
a point by supporting it with pertinent authority, or by showing why it is sound despite
a lack of supporting authority or in the face of contrary authority, forfeits the point. The
court will not do his research for him.”).
Because Pingree’s report is riddled with impermissible legal conclusions and is
written more as if Pingree is an attorney seeking exclusion of Gissiner’s initial report than
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as an expert challenging those opinions, I grant Defendant’s request to strike the entirety
of Pingree’s rebuttal report.
ii. Levy24
Levy authored a rebuttal report addressing many of the opinions offered by
Defendant’s expert, Gissiner. In its Daubert motion seeking to strike targeted opinions in
Levy’s initial report, Defendant also seeks to strike portions of Levy’s rebuttal report.
Defendant specifically seeks to: (1) strike paragraphs 4 (fourth and fifth sentences), 6
(third through sixth sentences), and 8 (second and third sentences) because Levy is not
qualified; (2) strike paragraphs 4 (first through third sentence) and 6 (third through sixth
sentence) as unreliable or irrelevant; and (3) strike paragraphs 1, 4 (fourth and fifth
sentence), and 7 (second and third sentence) as legal conclusions.
John Hancock’s first argument is based on its position that Levy is unqualified.
The Undersigned already rejected that argument in my discussion of Levy’s initial report
and does so again here for the same reasons. See supra Section III(a)(ii)(1).
In the next section, Defendant seeks to strike portions of Levy’s rebuttal which it
claims are unreliable or irrelevant. On these issues, the Undersigned previously
determined that Levy’s opinions on the best practices of a fiduciary in handling FTCs

Levy’s rebuttal report is filed in full (in unredacted form) on CM/ECF. [ECF No.
257-2]. The Undersigned’s references to his opinions are derived from this exhibit.
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generated by a mutual fund in a separate account are unreliable. See supra Section
III(a)(ii)(2). While the third through sixth sentence of paragraph six address this issue
(and are impermissible), the first through third sentence of the fourth paragraph address
only the industry practice in plan negotiation and investigation, which could be helpful
to the jury.
Therefore, the Undersigned grants in part this request and strikes only the third
through sixth sentence of paragraph six of Levy’s rebuttal report.
Defendant next seeks to prohibit Levy from offering purported legal conclusions
in his rebuttal report. Levy’s rebuttal report (and Defendant’s argument on the issue)
addresses many of the same impermissible legal conclusions the Undersigned has struck
from the reports of other experts, i.e., FTC definition and conflicts of interests.
First, the Undersigned rejects Defendant’s request to strike the first paragraph of
Levy’s rebuttal report because it is not a legal conclusion, it is merely a statement of why
Levy was retained. However, the Undersigned grants Defendant’s request as to the
fourth and fifth sentence of paragraph four and the second and third sentence of
paragraph seven because they speak only to the impact of FTCs (and whether Defendant
has a duty to disclose them) and John Hancock’s alleged conflict of interest (which he

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concludes requires disclosure). Both of these opinions constitute legal conclusions.25
iii. LaRue26
Although LaRue authored only one rebuttal report, he offers rebuttal testimony to
three of Plaintiffs’ experts: Levy, Pingree, and Mukamal. LaRue’s report is divided into
sections and each section concerns the opinions meant to rebut only a single expert.
Plaintiffs seek to strike paragraphs 9, 14, and 15-60 on the basis that LaRue is not
an ERISA expert and is therefore unqualified to offer opinions on ERISA; paragraphs 4553 as an impermissible legal conclusion on whether FTCs are plan assets; and 54-55 as an
impermissible legal conclusion on whether John Hancock engaged in a prohibited
transaction.
Paragraph 9 is not an ERISA opinion; it is a statement about what LaRue believes
Plaintiffs’ experts are saying -- that FTCs are compensation or revenue -- and a statement
that their assertion is without support. While the Undersigned disagrees with Plaintiffs’
characterization of paragraph 9, Plaintiffs’ experts are prohibited from offering the
opinions underlying this specific rebuttal, so I am striking this paragraph on that ground.

It is also appropriate to strike paragraph seven in its entirety because it seeks to
rebut paragraphs 42 through 63 of Gissiner’s report, which was stricken earlier in this
Order. See supra Section III(a)(v)(1).
25

LaRue’s rebuttal report is filed in full (with no redactions) on CM/ECF. [ECF No.
264-3]. The Undersigned’s references to his opinions are derived from this exhibit.
26

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Although Plaintiffs seek to strike paragraph 4 on the grounds that it is an ERISA
opinion and LaRue is unqualified to offer ERISA opinions, a reading of the paragraph
reveals that LaRue is merely discussing Defendant’s tax status. Here, LaRue states,
Mr. Levy also fails to recognize or acknowledge that the JHFC consolidated
group was subject to U.S. federal income taxes on the grossed-up foreignsource income that [John] Hancock derived from the RPS assets, and that
but for the allowance of a credit for foreign income taxes imposed on such
income, [John] Hancock would have been double-taxed on some or all of its
RPS foreign-source taxable income, a result clearly at odds with the U.S. tax
policy supporting the allowance of foreign tax credits.
LaRue is qualified to offer this opinion and it does not implicate ERISA. Therefore,
Plaintiffs’ request to strike this paragraph is denied.
Paragraphs 15-26, likewise, are not ERISA opinions. But these opinions do,
however, contain impermissible legal conclusions on revenue, indirect compensation,
plan assets, and conflicts of interest, all of which were struck from Levy’s testimony. See
supra Section III(a)(ii)(3). Thus, the opinions in these paragraphs are struck because the
opinions which they are meant to rebut have also been struck.
Paragraphs 27-32 contain an opinion on ERISA best practices, which is outside
LaRue’s expertise. See generally [ECF No. 264-3 (stating that “’[b]est practice’ is not an
ERISA term of art . . . insurance companies, like all companies, have several constituencies
to which they owe various duties and obligations . . . [and] [i]t is difficult to see how a
practice that systematically fails to recognize, respect, and balance its legal, contractual
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and ethical obligations to each of the company’s constituencies can be considered a ‘best
practice’”)]. LaRue’s opinion is also rebutting Levy’s best practice opinion, which has
been struck. See supra Section III(a)(ii)(2). Thus, the opinion in these paragraphs is also
excluded.
Paragraphs 33-60 all concern Pingree’s expert report, which has been struck in its
entirety. See supra Section III(a)(i). Thus, the Undersigned also strikes LaRue’s rebuttal
opinions on these issues.
The Undersigned denied Defendant’s request to strike Mukamal’s opinions and
Plaintiffs have not asserted any independent ground to strike LaRue’s opinions rebutting
those of Mukamal. Therefore, LaRue may offer all opinions meant to address the contents
of Mukamal’s report and supplemental report.
iv. Gissiner27
In addition to his initial report, Gissiner also authored a rebuttal report in response
to the opinions offered by Plaintiffs’ experts, Levy and Pingree. Plaintiffs’ arguments in
support of striking Gissiner’s rebuttal opinions are similar to some of their arguments
made in support of striking Gissiner’s initial opinions. Specifically, Plaintiffs claim that
Gissiner’s rebuttal report contains impermissible legal conclusions and narrative

Gissiner’s rebuttal report is filed in full (without redactions) on CM/ECF. [ECF No.
265-3]. The Undersigned’s references to his opinions are derived from this exhibit.
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testimony.
Concerning their first argument, Plaintiffs ask that this Court strike paragraphs 417 as impermissible legal standard testimony.
In paragraph 4, Gissiner addresses Levy and Pingree’s opinions that John Hancock
was required to disclose its use of FTCs, pass on the benefits of FTCs, and resolve any
conflicts of interest in favor of the Plan. Although Gissiner does not offer an actual
opinion in this section, other than to say that the opinions of Plaintiffs’ experts rest on an
incorrect assumption about John Hancock’s discretionary authority, the Undersigned
will still strike this paragraph because it is premised on opinions that Plaintiffs’ experts
have been precluded from offering. See supra Sections III(a)(i); III(a)(ii)(3).
In paragraphs 5 and 6, Gissiner states generally that John Hancock did not serve
as an ERISA 3(21) or 3(38) investment fiduciary to the Plan. This opinion is a counter to
Levy and Pingree’s opinions that John Hancock was a fiduciary without limits. Although
some of Gissiner’s opinions on this topic are appropriately based on industry practice
and understanding, it is also filled with impermissible legal conclusions about contract
interpretation and John Hancock’s purported status as a fiduciary. Because this type of
testimony is impermissible and Plaintiffs’ experts have been prohibited from offering
similar testimony, the Undersigned strikes these paragraphs from Gissiner’s rebuttal
report.
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Paragraphs 7 through 10 provide Gissiner’s rebuttal to Levy and Pingree’s
opinions regarding industry customs and the interpretation of the recordkeeping
agreement. Gissiner begins by stating that industry professionals would, among other
things, not expect John Hancock to provide fee concessions for foreign tax credits. He
follows this by opining on how the recordkeeping agreement describes the limits of John
Hancock’s discretionary authority. Pingree’s entire report has been excluded and Levy’s
best practice opinion has been excluded, which means that Gissiner’s opinions offered in
these paragraphs no longer have an underlying opinion to rebut. Thus, the Undersigned
strikes these rebuttal opinions on that ground and as impermissible contract
interpretation. Peterson, 753 F.2d 1016 at 1018.
Gissiner continues to interpret the Plan’s recordkeeping agreement in paragraphs
11 through 14, this time expanding his analysis by providing excerpts from four other
companies’ recordkeeping agreements and opining that these isolated paragraphs
support the contention that ”it is common for recordkeeping agreements between other
recordkeepers and plan sponsors to include language stating that the recordkeeper does
not have any discretion over plan assets.”
He uses this assessment to support his conclusion in paragraph 14 that retirement
industry professionals would not consider John Hancock to be a fiduciary in this
situation. These opinions are impermissible for the same reasons other similar opinions
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throughout this Order have been stricken. See supra Section III(a)(i); Section III(a)(ii)(3).
Finally, in paragraphs 15 through 17, Gissiner opines about whether FTCs
constitute revenue or compensation. This is an impermissible legal conclusion.
Plaintiffs’ remaining argument focuses on paragraphs 26 through 28, which they
say is an impermissible narrative. Unlike in Gissiner’s initial report, here, he doesn’t
merely recount deposition testimony and documentary evidence; instead, he describes
the availability of information in industry practice and uses Plaintiffs’ experiences as an
illustration. This is not impermissible narrative testimony.
However, paragraphs 26 through 28, as well as paragraphs 21 through 25, offer an
opinion meant to rebut a Pingree opinion. Because Pingree’s expert report has been struck
in full, the Undersigned also strikes these paragraphs and any other opinions offered in
rebuttal to a Pingree opinion. In re Trasylol Prods. Liab. Litig., 2010 WL 4065436, at *2.
Likewise, Gissiner’s opinions in paragraphs 18-20 are excluded because they offer an
opinion meant only to rebut Levy’s best practice opinion (which has been excluded). Id.
The cumulative effect of these rulings is exclusion of the entirety of Gissiner’s
report except for two sections: the materials reviewed and introduction sections. Because
the totality of his substantive rebuttal opinions have been struck and there is no need for
the two remaining sections, the Undersigned strikes the entirety of Gissiner’s rebuttal
report.
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v. Dr. Lisa De Simone28
De Simone is currently an Associate Professor of Accounting at the McCombs
School of Business at the University of Texas at Austin, where she teaches a variety of
international tax and financial planning courses. Before beginning that role in July 2020,
De Simone served as either an Assistant Professor or Associate Professor of Accounting
at the Graduate School of Business at Stanford University from 2013 through 2020. De
Simone has a BA in economics and German studies from Stanford University, an MS in
accounting from the University of Missouri-Kansas City, and a PhD in accounting from
the University of Texas at Austin.
De Simone’s report is meant to rebut LaRue’s opinions provided in response to the
first, fourth, fifth, sixth, and seventh questions posed to him by defense counsel.
Specifically, De Simone offers rebuttal opinions on the manner in which John Hancock
obtains FTCs, the manner in which John Hancock can use FTCs, the impact FTCs have on
John Hancock’s required financial reporting as a publicly traded firm, and on whether
FTCs have monetary value and constitute compensation.
Defendant first seeks wholesale exclusion of De Simone’s report on the ground
that it is an affirmative report masquerading as a rebuttal report. [ECF No. 258]. As

A copy of De Simone’s rebuttal expert report, including her qualifications, is filed in
full (in unredacted form) on CM/ECF. [ECF No. 258-1]. The Undersigned’s summary of
De Simone’s background and opinions is derived from this exhibit.
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fallback arguments, Defendant seeks to exclude discrete sections of De Simone’s opinions
on the basis that the opinions are unreliable and speculative or are legal conclusions. Id.
In Plaintiffs’ view, Defendant’s challenges to De Simone’s opinions are “each entirely
devoid of merit.” [ECF No. 269].
1. Nature of De Simone’s Report
According to Defendant, “De Simone’s opinions in her report are nothing more
than those of an initial expert . . . [and] Plaintiffs are trying to improperly shoehorn her
opinions as ‘rebuttal.’” Plaintiffs respond by providing examples of opinions in De
Simone’s report which they claim rebut opinions offered by LaRue. Defendant contends,
however, that these examples show only that De Simone was opining on the same subject
matter, not that she was rebutting actual, substantive opinions offered by LaRue. [ECF
No. 281 (titling its reply subsection: “Even Though the De Simone Report Covers Some
of The Same Topics as Dr. LaRue’s Report, it is Still Not a Rebuttal Report”)].
Although the section of De Simone’s report immediately following her
background section is titled “Rebuttal Opinions Regarding Questions 1 and 4-7 in the
LaRue Report,” the substance of her discussion does not specifically reference any of the
opinions in LaRue’s report. De Simone’s lack of LaRue-focused discussion, in
Defendant’s opinion, demonstrates that her report is merely a dressed-up, late,
affirmative report. Plaintiff, however, points to the following examples of rebuttal
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opinions:
[LaRue] opines that FTCs do not have any intrinsic, stand-alone economic
value. Ex. B (LaRue Rept.) at 3 (Question 1). [De Simone] disagrees, opining
that they do have economic value, even when they are not utilized against
foreign-source income. [ECF No. 258-1, ¶41].
[La Rue] opines that foreign tax credits are not assets of the plan. Ex. B
(LaRue Rept.) at 5 (Question 4). [De Simone] contends they are. [ECF No.
258-1, ¶40].
[LaRue] opines that foreign tax credits are not compensation for services
rendered. Ex. B (LaRue Rept.) at 7 (Question 5). [De Simone] opines that
they are. [ECF No. 258-1, ¶42].
[LaRue] opines that [John] Hancock was not enriched from the retention of
FTCs. Ex. B (LaRue Rept.) at 7 (Question 6). [De Simone] opines to the
contrary. [ECF No. 258-1, ¶42].
And [LaRue] opines that the FTCs were not used at the expense of the plan.
Ex. B (LaRue Rept.) at 7 (Question 6). Whereas [De Simone] recognizes that
they were. [ECF No. 258-1, ¶46].
[ECF No. 269].
In Defendant’s view, there are myriad reasons why the Court should not be
persuaded by these examples. In general, Defendant’s counterarguments focus on (1) the
fact that De Simone does not directly mention LaRue’s opinions as she offers her own; (2)
its view that LaRue’s opinions are based exclusively on the tax code and De Simone’s are
based, in part, on ERISA; and (3) an argument that De Simone did not actually offer the
opinion Plaintiffs provided as an example.
These arguments all fail for the same type of flawed reasoning: they too narrowly
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construe the requirements of a rebuttal report; they too narrowly view the opinions
offered by LaRue; and they too narrowly view the opinions offered by De Simone.
Under Defendant’s contention, a rebuttal report would need to follow this format
to be admissible: first, identify with particularity the opinion stated by the opposing
expert (and include the opposing expert’s name); second, identify the flaw in the
opposing expert’s reasoning and apply a different standard or reasoning; and, finally,
reach a contrary or different result.
The Federal Rules do not require this type of specific formula. Rather, they require
only that the evidence “is intended solely to contradict or rebut evidence on the same
subject matter.” Fed. R. Civ. P. 26(2)(D)(ii). An expert is improperly classified as a rebuttal
expert only “where the rebuttal reports are not offered to rebut the subject matter of the
[opposing party’s] expert opinions” and are, instead, used “to present new legal theories
or better experts than those it identified initially.” ITT Corp. v. Xylem Grp., LLC, No. 1:11CV-3669-WSD, 2012 WL 12871632, at *5 (N.D. Ga. Oct. 15, 2012) (“The opinions and
conclusions of Defendant's initially disclosed experts and those identified in rebuttal are
similar, but have nuanced differences and the differences in the rebuttal reports, while
nuanced, still are offered to rebut the opinions and conclusions offered by Plaintiffs'
identified experts.”).
Here, Defendant does not identify any new legal theories presented by De Simone,
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nor does it explain how this report is simply a better version of one of Plaintiffs’ other
experts. Rather, Defendant focuses its position on the fact that De Simone does not
address LaRue’s report in an obvious fashion and states that the fact “De Simone covers
some of the same topics as [LaRue] does not transform [her report] into a rebuttal report.”
Contrary to Defendant’s position, its strict formula for an expert report is not
required. Lebron v. Royal Caribbean Cruises, Ltd., No. 16-24687-CIV, 2018 WL 3583002, at *3
(S.D. Fla. July 26, 2018) (rejecting arguments that expert was not a proper rebuttal expert
because he did “not discuss MacLaughlin's report or conclusions at all and does not
address MacLaughlin's examination findings,” he “fail[ed] to directly address an
assertion raised by an opponent's expert,” and he “was not even aware that he was going
to be called as a rebuttal witness to MacLaughlin”).
Because De Simone’s opinions do not advance any new evidence or legal theories,
and, in fact, cover the same subject matter as LaRue, her opinions are permissible to rebut
LaRue’s opinions in his initial report. Therefore, the Undersigned rejects John Hancock’s
contention that her rebuttal report is actually an impermissibly tardy initial report.
2. Unreliable and Speculative
Defendant levies the same attack on De Simone’s opinions that it made in its
request to exclude Mukamal’s opinions: “[S]he ignores the well-establish fact that JHFC
calculates its tax liability on a consolidated basis, of which John Hancock (and its RPS
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business) is only one part.” Defendant contends that this issue is compounded by De
Simone’s failure to review the deposition transcripts of the three witnesses from its tax
group and her failure to review the foreign tax credit forms produced in this case.
These arguments are even less persuasive than they were when used to challenge
Mukamal’s opinions. Unlike Mukamal, De Simone does not offer a specific damages
calculation. Her opinions, instead, address the inherent characteristics of FTCs as applied
to mutual funds and retirement plans, and their general function in the tax code.
Moreover, as Defendant concedes, De Simone states in her deposition that this type of
information -- John Hancock’s overall tax position -- “was not particularly important
within the scope of [her] opinion.”
As an example of why this purported error warrants exclusion, Defendant points
to years when it was not allotted any FTCs despite FTCs being available. However,
Defendant has not shown how this information (even if not properly considered) actually
impacts De Simone’s opinion. As Plaintiffs note, “conspicuously absent from John
Hancock’s attack is any suggestion that the information in those documents would refute
her opinions.”
Defendant’s response to this point is that “the question at this juncture is not the
weight a fact-finder should give Dr. De Simone’s testimony, but rather whether her
testimony is reliable and therefore admissible under Daubert.” Based on this statement, it
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is unimportant to Defendant whether De Simone’s opinion is accurate -- because that
would go only to the weight -- and it is sufficient to exclude testimony based on a party’s
claim that additional information should have been considered.
This position is untenable with the purpose of Daubert. A party cannot obtain
wholesale exclusion of an expert’s opinion based on its own claim that certain
information not considered by the expert is necessary without explaining why it is
necessary or how its omission impacts the opinion. If that were the case, then exclusion
would likely occur as a matter of course in nearly every case because the opposing side
would simply allege that the opposing expert failed to consider some fact that it believes
(or claims to believe) to be a necessary component of the opinion.
Certainly, if these additional facts are a necessary foundation for De Simone’s
opinion to be valid, then John Hancock or its expert (if the opinion has been properly
disclosed) can explain the facts’ necessity to the jury (because it has failed to explain the
necessity to the Court), and Defendant can use “vigorous cross-examination” to test De
Simone’s conclusions. Quiet Tech. DC–8, Inc., 326 F.3d at 1341.
Defendant also argues that De Simone offers speculative opinions because they
are based on an “oversimplified hypothetical that is untethered to the actual facts of this
case” and because she uses hedging language such as “typically” or “generally.”
Although Defendant may believe De Simone’s hypothetical to be oversimplified,
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she is not offering a damages opinion. Instead, she is rebutting LaRue’s general opinion
-- which, at times, addresses general FTC principles -- on FTCs, their function, and their
characteristics. There is no requirement that, in explaining the characteristics of FTCs, De
Simone employ a hypothetical identical to the situation Plaintiffs’ Complaint confronts.
It is sufficient that the opinion or hypothetical, in addressing the same topic as LaRue, is
helpful to the jury in explaining the function of FTCs.
Further, as Plaintiffs correctly emphasize, LaRue’s expert report is riddled with
the same (or similar) type of hedging language which Defendant challenges in seeking to
exclude De Simone’s opinions. Defendant attempts to distinguish this fact by pointing
out that LaRue uses this language in the context of background information and De
Simone uses it in the context of her opinions.
In De Simone’s report, she states that
For an employee retirement plan governed by a group annuity contract, the
amount of the reserve will typically be equal to the net asset value held in
the separate account. Thus, payments by the insurance company to a
separate account for an employee retirement plan governed by a group
annuity contract will generally increase the reserve and therefore result in a
deduction for the insurance company.
[ECF No. 258-1 (emphasis added)].
In LaRue’s report, he opines that
The economic benefit that a U.S. taxpayer typically derives from qualifying
for and claiming its foreign tax credits is, therefore, literally and
figuratively, netted out, dollar-for-dollar, against the economic detriment
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that the taxpayer would otherwise have incurred by paying, in full, U.S.
taxes on the foreign-source income that gave rise to the creditable foreign
taxes.
***
But for the allowance of a credit for foreign income taxes imposed on such
income, [John] Hancock may have been double-taxed on some or all of
that income . . .
[ECF No. 264-2].
Notably, DeSimone’s and LaRue’s “hedged” opinions about double taxation and
reserves both deal, in part, with the issue about the effect the mutual funds have on John
Hancock’s tax liability and whether John Hancock actually pays its own U.S. taxes on the
increase in value of its separate accounts. And, most importantly, both opinions used the
same “hedging” language of which Defendant complains. At bottom, the Undersigned
sees no difference by the location of the language -- whether in the background or opinion
-- because the language implies only that there may be circumstances where this
conclusion or procedure (to reach a conclusion) does not apply, both of which impact the
certainty of the conclusion.
Moreover, the cases cited by Defendant do not support its contention that the mere
presence of hedging language warrants exclusion. For example, in Frazier, 387 F.3d at
1265, the Eleventh Circuit affirmed the exclusion of testimony where it was unclear from
the expert’s report or deposition whether the term “expect” meant “more likely than
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not[,]” “substantially more likely than not[,]” “or that discovery was a virtual certainty.”
Likewise, in Edwards v. Shanley, 580 F. App'x 816, 824 (11th Cir. 2014), the appellate court
affirmed the exclusion of testimony because the expert refused to define the term
“prolonged” as used in his deposition other than saying it was “more than 60 seconds”
and “probably more than 90 second[,]” stating, “I'm not going to give a specific number,
because truthfully I can't.” (internal quotations omitted).
The uncertainty and lack of specificity provided by the experts in those cases is
markedly different than De Simone’s mere use of the terms “typically” or “generally.”29

The language in De Simone’s and LaRue’s opinions is also different from Pingree’s
use of the term “arguably” or the phrase “it could be argued,” which the Undersigned
determined is a separate basis to strike sections of Pingree’s opinions. See supra Section
III(b)(i).
29

The terms “typically” and “generally” both invoke a stronger degree of confidence
than the term “arguably,” which is more akin to the words “possibly” or “maybe.” 29
Wright & Gold, Fed. Prac. Proc. § 6264 (2009) (“Courts generally also defer to the jury's
ability to weigh the evidence where an expert's opinion is equivocal. For example, an
expert may give an opinion that there is a causational link between defendant's activities
and plaintiff's injuries, but the expert may be unable to state the opinion with a high or
even reasonable degree of medical certainty. In such a case, most courts will admit the
opinion while permitting cross-examination to reveal for the trier of fact the expert's
uncertainties. But courts will reject expert testimony where it is based on rank
speculation.”); 2 MICHAEL GRAHAM, HANDBOOK OF FEDERAL EVIDENCE, § 702.1
(4th ed. 1996) (“While questions to an expert designed to elicit an opinion as to a fact of
consequence including an expression of his estimate of probabilities of the facts expressed
in the opinion are frequently couched in terms of reasonable certainty, such phraseology
is generally not mandated.”) CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK,
MODERN EVIDENCE, § 7.6 (1995) (“The fact that an expert cannot be categorical, and
admits some uncertainty in his conclusions, does not mean his testimony fails the
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Therefore, the Undersigned denies Defendant’s request to strike De Simone’s opinions
on these grounds. Any problems with the equivocal or general language can be handled
in cross-examination.
3. Compensation and Plan Assets30
In De Simone’s report, she offers opinions on whether FTCs are compensation
within the meaning of ERISA and whether FTCs are Plan Assets. Throughout this Order,
the Undersigned has prohibited the parties’ experts, including LaRue, from offering
opinions on these two issues on the basis that they are legal conclusions. Because LaRue
has been prohibited from offering his opinions on the issues (which means there is no
longer an opinion to rebut) and because De Simone’s opinions are also improper legal
conclusions, the Undersigned grants Defendant’s request to exclude De Simone from
offering these two legal-conclusion opinions.

helpfulness requirement . . . . Where reasons for reservations can be made intelligible to
a lay jury, it is entirely appropriate to let the expert lay them out so the jury may better
evaluate his testimony and reach its own conclusion as to its worth. On the other hand,
uncertainty that is so acute that the testimony would amount to little more than a guess
or a shrug does not implicate the helpfulness criterion, and it may properly be excluded
as unhelpful.”)
Defendant also raises alternative challenges to these opinions. Specifically,
Defendant claims that the opinions are irrelevant, were not properly disclosed, or that De
Simone is not qualified to offer the opinions. Because the Undersigned is excluding the
opinions on the grounds that they are impermissible legal opinions and on the grounds
that LaRue’s companion opinions have also been excluded, I decline to reach the merits
of these other arguments.
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IV.

CONCLUSION
Based on the foregoing, the Undersigned Orders as follows:
(1) Defendant’s Motion to Exclude the Testimony of Bruce Pingree is granted. The
opinions in Pingree’s initial and rebuttal reports are stricken in their entirety;
(2) Defendant’s Motion to Exclude the Testimony of Roger Levy is granted in part
and denied in part. Levy may not offer the best practice opinions contained in
paragraphs 11d, 11e, 27, and 30 of his initial report; he may not offer any of the
opinions contained in 11c, 11e, 22-23, 24 (first and last sentences), 24 n.23 (first
sentence), 25 (seventh and eighth sentences), 25 n.24, 30 (second and third
sentences), and 30 n.32 of his initial report; and he may not offer any of the
opinions contained in paragraphs 4 (fourth and fifth sentence), 6 (third through
sixth sentence), and 7 (second and third sentence) of his rebuttal report;
(3) Defendant’s Motion to Exclude the Testimony of Barry Mukamal is denied;
(4) Defendant’s Motion to Exclude the Testimony of Dr. Lisa De Simone is granted
in part and denied in part. De Simone may not offer any opinions about
whether FTCs are compensation or plan assets;
(5) Plaintiffs’ Motion to Exclude the Testimony of Dr. David LaRue is granted in
part and denied in part. LaRue may not offer the opinions contained in the
first bullet point under paragraph 91 or the entirety of paragraph 98 of his
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initial report; he may also not offer testimony about whether FTCs are
compensation or plan assets, including his opinions in paragraphs 89-96 of his
initial report; he may also not offer any of the opinions contained in paragraphs
9 and 15-60 of his rebuttal report;
(6) Plaintiffs’ Motion to Exclude the Testimony of Steven Gissiner is granted in
part, denied without prejudice in part, and denied in part. Gissiner may not
offer any of the opinions contained in paragraphs 42-63 or 75-80 of his initial
report; he may also not offer any of the opinions contained in his rebuttal
report; Plaintiffs may renew their objection to the opinions contained in
paragraphs 64-86 at or immediately before trial.

DONE AND ORDERED in Chambers, in Miami, Florida, on May 9, 2022.

Copies furnished to:
All Counsel of Record

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