Raiford et al v. National Hills Exchange, LLC et al
Filing
238
ORDER granting Plaintiffs' 183 , 185 , and 186 Daubert Motions to exclude expert opinion testimony offered by Defendants James Timberlake and Richard Swope and attorney Jack Paller; denying the motions to the extent Plaintiffs' motions address lay opinion testimony under Rule 701; and determining, accordingly, that Timberlake, Swope, and Paller will be permitted to give opinion testimony, but not as experts. Signed by Judge J. Randal Hall on 5/17/2016. (jah)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN
DISTRICT OF GEORGIA
AUGUSTA
J. WAYNE RAIFORD and B, T & R
ENTERPRISES, LLC,
DIVISION
*
*
*
*
Plaintiffs,
*
v,
*
NATIONAL HILLS EXHANGE,
LLC;
SNELLVILLE CORSSING, LLC;
*
RICHARD D. SWOPE; RONALD J.
DeTHOMAS; JAMES S. TIMBERLAKE;
THOMAS L. ABERNATHY; and
*
*
*
STEVEN E. GAUNTLEY,
l:ll-cv-152
*
•
Defendants.
*
*
*
*
ORDER
Presently before the Court are Plaintiffs'
Daubert motions
to exclude expert opinion testimony offered by Defendants James
Timberlake and Richard Swope and attorney Jack Paller.
183, 185, 186.)
(Docs.
The Court GRANTS each of Plaintiffs' motions.
I.
FACTUAL BACKGROUND
The Court's March 27, 2013 Order contains a factual summary
of this case.
On February 20,
fact witnesses who
Disclosures, Doc.
experts,
"may give
185.)
2015,
Defendants
expert opinions."
disclosed six
(Defs.'
Expert
Because Defendants did not retain these
their disclosures
were timely under
Federal
Rule
of
Civil Procedure 26(a)(2)(C).
were
Defendants
Jack Paller.
Jim
Timberlake
to
and
six disclosed witnesses
Richard
Swope
Expert Disclosures 11 2-3,
(Defs.'
According
Among the
the
disclosures,
Timberlake
and marketability in Georgia in 2010 and 2011,
in 2010
and 2011,
Center in 2010
for Georgia commercial
and the value
and 2011."
(Id.
and
2-3.)
Swope
"may
estate values
the difficulty of
real
estate projects
of the National
M
attorney
6.)
give opinion testimony concerning commercial real
obtaining financing
and
Hills
Timberlake
Shopping
and Swope
base their opinions on their general real estate experience and
"personal
experience
(Id.)
for
As
involved
with
in
with
Paller,
"the
Electrolux
according
negotiations
and
1
National
Fresh
to
and
Market
disclosure,
documentation
for
Center."
National
agreements
Hills
Shopping
opinion testimony concerning the complexities of the
and
how
satisfying
those
previous experiences."
Plaintiffs
moved
contingencies
terms
and
of the
183,
185,
that
Paller
Electrolux lease
conditions
compared to
his
(Id.)
to
exclude
Timberlake,
from testifying as experts under Federal
(Docs.
states
was
"may give
the
disclosure
of
he
(Id.
to meet
Defendants'
the
Shopping
Center."
negotiations
6.)
Hills
Swope,
Paller
Rule of Evidence 702.
186.)
II.
and
LEGAL STANDARD
Federal Rule of Evidence 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
understand
the
help
the
evidence
trier
or
to
of
fact
to
determine
a
fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony
is the product of reliable principles and
methods;
and (d)
the expert has reliably
applied the principles and methods to the
facts
"As
the
of
Supreme
Pharms.,
the
case.
Court
Inc.,
[509
recognized
U.S.
579
in
Daubert
(1993)],
contemplates that the district court will
to the admission of
v.
Hurel-Dubois
[expert]
UK Ltd.,
testimony."
326
F.3d
1333,
v.
Rule
Merrell
702
serve as
plainly
a gatekeeper
Quiet Tech.
1340
Dow
(11th
DC-8,
Cir.
Inc.
2003).
"The burden of laying the proper foundation for the admission of
the
expert
testimony
is
on
the party offering
the
expert,
and
admissibility must be shown by a preponderance of the evidence."
Allison
v.
McGhan
Med.
Corp.,
184
F.3d
1300,
1306
(11th
Cir.
1999).
The Eleventh Circuit has explained that district courts are
to engage in a three-part inquiry to determine the admissibility
of expert testimony under Rule
1340.
702.
Quiet Tech.,
Specifically, the court must consider whether:
326
F.3d
at
(1)
The
expert
is
qualified
to
testify
competently regarding the matters he intends
to address;
expert
(2)
the methodology by which the
reaches
sufficiently
his
reliable
as
conclusions
determined
by
is
the
sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact,
through
the
application
of
scientific,
technical,
or
specialized
expertise,
to
understand
fact
Id.
at
evidence
or
to
determine
in issue.
an
expert
knowledge,
skill,
Saw Chain,
LLC v.
2008).
A
may
be
qualified
Blount,
witness's
testify
training,
experience,
to
or
education.
Inc.,
583 F. Supp.
qualifications
Co.,
188 F.3d 709,
723
(7th Cir.
due
2d 1293,
must
subject matter of his proffered testimony.
Elec.
a
1340-41.
First,
Ga.
the
to
his
Trilink
1304
correspond
(N.D.
to
the
See Jones v. Lincoln
1999).
Second,
In
the
testifying expert's opinions must be reliable.
Daubert,
the
Supreme
Court
directed
district
courts
faced
with the proffer of expert testimony to conduct "a preliminary
assessment
the
of
testimony
whether
is
the
reasoning
scientifically
or
methodology
valid
and
of
underlying
whether
that
reasoning or methodology properly can be applied to the facts in
issue."
should
tested;
whether
509 U.S.
consider:
(2)
at 592-93.
(1)
whether
There are four factors that courts
whether
it
has
the
been
theory
or
technique
subject
to
peer
can
review;
be
(3)
the technique has a known or potential rate of error;
and
(4)
whether the theory has attained general acceptance
the
relevant
community.
IcL
at
593-94.
"These
factors
in
are
illustrative,
every
case,
important
and
in
opinion."
Cir.
not
in
Thus,
deciding
determining
whether
Kumho Tire Co.
v.
Regardless
"the
in
judge
by
will
of
be
F.3d 1244,
have
how
testimony
137,
152
known."
learning or
must
Evid.
expert
1262
to
go
is
about
reliable."
validation
the
(11th
"[p]roposed
Daubert,
how
equally
(1999).
experience
explain
in
-
i.e.,
509 U.S.
a
summary
of
a
at
grounded
the
expert's
conclusion
is
702, advisory committee's notes
"'Presenting
in
considerable
considered,
appropriate
apply
proffered
must
factors
is
will
"[t]he expert's testimony must be
expert
Fed. R.
them
case
expert
specific
based on what
accepted body of
amendment).
387
particular
supported
in
grounded."
trial
a
of
factors
Frazier,
be
the
other
Carmichael,- 52 6 U.S.
In most cases,
and
all
reliability
particular
590.
field,
v.
the
Agood grounds,'
an
cases
of
must
not
the
United States
in
testimony
some
evaluating
2004) .
leeway
exhaustive;
proffered
so
(2000
expert's
testimony in the form of conclusory statements devoid of factual
or
analytical
support
proponent's burden.
of
Monroe
Thus,
Cty.,
neither
nor his
an
is
simply
Cook ex rel.
Fla.,
402
expert's
F.3d
1261.
1092,
Moreover,
1113
qualifications
accepted principles is sufficient.
1244
enough"
to
carry
Estate of Tessier v.
unexplained assurance that
Inc., 401 F.3d 1233,
not
his
and
or her
(11th
the
Sheriff
Cir.
experience
2005).
alone
opinions rely on
McClain v. Metabolife Int'l,
(11th Cir. 2005);
Frazier,
387 F.3d at
when analyzing a witness's reliability,
courts
must
be
careful
methodology
Daubert,
rather
509 U.S.
Third,
decide
a
matters
to
Frazier,
advance
387
the
the
expert's
conclusions
testimony must
in
beyond the
logically
than
on
principles
that
they
generate.
F.3d
issue.
assist
Thus,
the
understanding of
a
material
at
average
of
Daubert,
trier
testimony
the
aspect
1262;
the
the
509
of
help
the
at 591.
trier
fact
must
proponent's
U.S.
at
to
concern
lay person
and
case.
591.
Supreme Court has described this test as one of "fit."
509 U.S.
and
at 595.
expert
fact
focus
The
Daubert,
"Proffered expert testimony generally will not
of
the
fact
when
lawyers
for
parties
Frazier,
it
Plaintiffs
Defendants
Paller.
Jim
From
seek
to
argue
nothing more
Defendants'
closing
arguments."
DISCUSSION
exclude
Timberlake
in
than what
387 F.3d at 1262-63.
III.
can
offers
and
expert
Richard
disclosure,
opinion
Swope
it
and
testimony
from
attorney
Jack
appears
they
expect
Timberlake, Swope, and Paller to each testify as fact witnesses
and as expert opinion witnesses.
Plaintiffs' motions initially
focused on excluding their expert testimony under Rule 702.
In
their
to
reply
briefs,
Plaintiffs
broadened
their
arguments
exclude the opinion testimony altogether under Rule 701 as well.
The Court addresses each argument in turn.
A. Opinion Testimony of Jim Timberlake
Defendants
opinion
values
testimony
on
three
and marketability
difficulty
estate
indicate that Defendant Jim Timberlake may give
of
in
obtaining
projects
in
topics:
Georgia
financing
2010
(1)
and
commercial
in
for
2011;
2010
and
2011;
1
2.)
More
(3)
value
and
market
for
featured
commercial
"a
detrimental
(Defs.'
201
of
number
to
Opp.
at
6.))
Defendants,
worth
sale."
of
Doc.
194
the
and
no
(Id.
more
at
5.)
will
than
Expert
intends
difficult"
and
which
presumably
was
3
real
at
in Georgia.
testify to the
real
4.)
testify
Plaintiffs
estate
(quoting Timberlake
$8,000,000
Finally,
that
at
estate
"the
the
Dep.,
in
Georgia
according
shopping
time
Doc.
difficulty
of
the
to
center
forced
challenge the admissibility of
702 for being unhelpful to the
not
knowledge,
specialized
the
"very
these opinions under Rule
based on
to
was
commercial
(Id.
Timberlake
the
during 2010 and 2011,
Timberlake will
2011.
real
of
(Defs.'
Timberlake
commercial
at
for
the
failures,"
bank
financing
2010
estate
of
Second,
obtaining
during
was
Br.,
real
value
the
First,
(2)
commercial
specifically,
offer the following opinions.
estate
Georgia
National Hills Shopping Center in 2010 and 2011.
Disclosures
real
and
not
based
on
jury,
reliable
methods.
Timberlake's
values
first
opinion concerns
and marketability in Georgia
his deposition,
in 2010
Timberlake testified that
7
commercial
and
in 2010
real
2011.
estate
During
and 2011 the
commercial real estate market was
a
"number
point
of
bank
did Timberlake
any scientific,
form
failures."
this
facts
Dep.
at
or data
6.)
he
At
no
relied on or
technical or specialized knowledge he applied to
is
transcript.
(Timberlake
explain the
opinion.
methodology
"very difficult" and included
Further,
evident
These
from
the
the
lack
face
opinions,
therefore,
topic,
Defendants
of
of
fail
any
his
to
reliable
deposition
satisfy
Rule
702.
On
the
particular
second
opinion
that
Timberlake
do
intends
Court's review of Timberlake's deposition,
not
to
point
give.
to
a
From the
he does not appear to
have an expert opinion on the difficulty in obtaining financing.
Mr.
Timberlake
does,
however,
difficulty securing financing
Hills during 2011.
70-71.)
These
speak
at
length
regarding
to fund improvements
at National
(Timberlake Dep. at 12-14, 18-19, 24, 39-40,
opinions
are
based
on
Timberlake's
involvement with National Hills Exchange,
LLC
reliably
therefore
applied
the
methodology,
and
are
personal
("NHX")
and not a
the
proper
subject of lay opinion testimony under Rule 701 and not expert
testimony under Rule 702.
Finally,
Defendants
disclosed
that
Timberlake
has
an
opinion concerning the value of National Hills at the time of
the
short
sale
in
April
2011.
The
exact
contents
of
Timberlake's opinion were the cause of some confusion during his
deposition.
Plaintiffs'
counsel
repeatedly
asked
Timberlake
what his
opinion was
as
time of the short sale,
litigation.
(E.g.,
to
the value
of
National
Hills
at
the
and at other occasions relevant to this
Timberlake
Dep.
at
27-28,
40-41.)
Each
time Timberlake declined to give an opinion and suggested that
he
needed
to
consult
the
property's
net
operating
income
and
capitalization rates among other documents before he could form
one.
(Id.)
After
some
confusion
concerning
when
Timberlake
prepared to give an opinion on National Hills'
60),
Defense
opinion
when
it
as
counsel
to
was
continued,
stated
maximum values
sold
to
an opinion that
(Id.
that
"[Timberlake]
of
the
time
can
in
April
at
give
61.)
his
of
2011
60.)
He
... is going to testify [that]
at
be
(id. at 59-
Dep.
(Timberlake
[National Hills]
certain amount."
-
as
Harrell."
"[Timberlake]
correctly
that
value
would
he has
had a value no greater than a
Plaintiffs'
"[Timberlake]
said
counsel responded -
...
he
has
no
idea
without having all the cap rates and all the leases and all that
information."
Plaintiffs'
(Id.)
After
this
short
detour,
Timberlake
counsel had the following exchange:
Q:
Do you have any opinion as to the value
on the day you sold - the day that National
Hills
Exchange
sold to Richard Harrell,
which is,
A:
for
I believe, April of 2011?
[M]y opinion
the
number
is that we sold it to him
that
the
given market circumstances.
market
dictated
and
Q:
The
sales price was
$8,000,000;
is
that
correct?
A:
I think that's right.
Q:
So your opinion is it had a value as
that time of $8,000,000?
of
A:
That's what the appraisal said.
I mean,
personally I felt like it had a lot more
potentially; but we didn't have the leases
to do it, so - to take the value up.
Q:
Do you have an opinion today as to the
valuation of National Hills Shopping Center
during that time period?
Either you do or
you don't.
A:
I have an opinion that we sold the
property
[to]
Richard Harrell for what I
thought was a market driven number at the
time we sold it to him.
Was I happy with
it, no.
Would I have liked to have seen it
higher so that we could have had less of a
deficiency,
yes.
But did we get offers
higher than that, no.
(Timberlake Dep.
cites
these
at 61-62,
statements
66.)
as
In their brief,
support
for
Defense counsel
Timberlake's
supposed
opinion that National Hills was worth "no more than $8,000,000"
in April 2011.
As
an
(Defs.' Opp. Br.,
initial
National Hills was
matter,
Doc.
194 at 5-6.)
Timberlake
never
testified
worth "no more than $8,000,000."
Timberlake
twice denied possessing an opinion on National Hills'
April
2011.
confusion,
opinion,
sold
the
(Timberlake
and
after
Dep.
Defense
at
28,
counsel
40-41.)
explained
that
value
After
in
some
Timberlake's
Timberlake reluctantly embraced it, stating that " [NHX]
property
[to
Richard
10
Harrell
for
what
[Timberlake]
thought
was
Because,
as
a
market
a matter of
for $8,000,000,
fact,
an
$8,000,000.
value
(Id.
at
in
But
excess
41.)
cap rates
.
.
.
the
earlier
of
in
the
66.)
to
or
perhaps
consult
whether
an
Plaintiffs'
net
among
opinion
that
8,000,000?"
that point."
operating
other
below
"would have to look at
the income stream at
rates
more
"did you think the shopping center had
8,000,000
and look at
capitalization
skeptical
at
worth no
deposition,
Timberlake replied that he
have
(Id.
property was
Given Timberlake's earlier assertion that to
would
."
NHX sold the property to Harrell
opinion that
counsel asked Timberlake,
a
number
Defendants interpret this statement to mean that
Timberlake has
than
driven
form an opinion he
income
documents,
National
(Id.)
figures
the
Hills
and
Court
was
is
worth
no
more than $8,000,000 can even be attributed to him.
Assuming that
Timberlake has
such an
opinion,
does
not
use any technical or specialized knowledge to arrive at it.
To
the extent Timberlake explains any method,
value
of
a
property
purchaser
paid
for
suggests,
but
never
National
Hills
at
at
it.
the
Applying
fully
the
time
time
of
is
not
and, moreover,
based
on
it is that the market
sale
this
states,
is
method
that
the
because that is the price Harrell,
"method"
of
the
short
via NHEP,
technical
or
he
simply
here,
market
sale
was
what
Timberlake
value
This
knowledge,
is not beyond the comprehension of a juror.
11
of
$8,000,000
paid for it.
specialized
its
Elsewhere,
Timberlake
suggests
that
National
Hills'
value
was $8,000,000 in April 2011 because that is what an appraisal
said.
(Id. at 62.)
Timberlake is only relaying the appraiser's
expert opinion and not giving his own.
Moreover, Timberlake may
not agree with the appraiser's view.
is
"what
like
the
appraisal
[National
Hills]
said,"
had a
but
that
lot more
[they]
didn't have the leases to
up."
(Id. )
Arguably,
He stated that $8,000,000
do
[value]
it,
Timberlake is
the
account
for the possibility of
so
[he]
felt
potentially;
but
- to take the value
stating his view that the
appraiser underestimated National Hills'
to
"personally
market value by failing
leasing more
retail
space in
furture.
As
value,
the
to
applied
above
the
show,
extent
methodology
knowledge.
his
he
that
Rather,
his
has
opinion
one,
familiarity with prior appraisals,
market conditions.
Accordingly,
opinion testimony under 701,
under
is
utilizes
opinion
regarding
not
based
technical
is
National
based
on
or
on
a
Hills'
reliably
specialized
his
National Hills'
personal
tenants,
and
it is the proper subject of lay
but not expert opinion testimony
702.
Timberlake may have opinion testimony on each of the three
topics
discussed
above.
To the extent those
opinions
exist,
they are based on his perspective as a key figure in this case,
see
Federal
application
Rule
of
of
Evidence
"scientific,
701(a),
technical,
12
and
or
do
not
other
involve
the
specialized
knowledge."
Fed.
R.
Evid.
702(a).
the proper subject of lay,
Plaintiffs'
an
expert
proper
The opinions
not expert,
testimony.
motion to exclude Jim Timberlake
(Doc.
195)
foundation
is
at
GRANTED.
trial,
are therefore
from testifying as
Assuming
Timberlake
Accordingly,
Defendants
will
be
lay
allowed
a
to
testify to his opinions on these topics as a lay witness.
B. Opinion Testimony of Richard Swope
Defendants also indicate that Richard Swope may give expert
opinion
testimony
on
the
same
three
(Defs.' Expert Disclosures 1 3. )
topics
as
Timberlake.
As with Timberlake,
Plaintiffs
challenge the admissibility of these opinions under Rule 702 as
being unhelpful to the jury, not based on specialized knowledge,
and not based on reliable methods.
On the first topic,
Swope intends to testify to his opinion
that "commercial real estate values and marketability in Georgia
were
^severely depressed'
real
estate
Swope
that
crisis."
Dep.,
Doc.
lending
"[o]nly
in
time."
(Swope Dep.
that
Swope
approximately
(Defs.' Opp.
(Defs.'
come
cases
will
to
Doc.
Br.,
virtual
Finally,
that
at
as
Doc.
loans being
at 40.)
opine
and 2011
the
192 at 4.)
13
a result
192
Additionally,
a
were
$8,000,000
Br.,
Opp.
200 at 49.))
"had
rare
in 2010
3
Swope
made
for
National
of
Hills
the
the
(quoting
will
standstill,"
Defendants'
time
at
of
and
opine
that
a period
of
brief asserts
was
forced
"worth
sale."
The
estate
Court
values
begins
and
with
Swope's
marketability.
opinion
During
concerning
Swope's
real
deposition,
Defense counsel asked Swope the following:
Q:
Speaking in
general
terms,
based on
your ownership in other properties in 2010
or 2011 or investigation of other potential
acquisitions,
was
it
your
view
that
commercial real estate property values were
good or were they [depressed] in the period
of time of late 2010 and early 2011?
A:
(Swope
They were severely [depressed].
Dep.
at
description of
49.)
Defendants
the method Swope used to
the market was severely depressed.
to
analyze
have
real
estate
market
not
provided
reach his
Undoubtedly,
conditions
is
any
opinion that
Swope's ability
greater
than
the
average person due to his professional experience in the field.
However,
his
silence
as
to
his
methodology renders
unreliable as expert testimony.
Fed. R. Evid.
his
opinion
702(c).
Swope's second opinion concerns the difficulty in obtaining
financing for commercial real estate projects in Georgia during
2010
and
2011.
In
his
deposition,
Swope
gave
the
testimony:
I do have an opinion about the general
economy.
I do read the newspapers and I
read multiple times that we were in the
midst
of
great
depression.
the
greatest
recession
since
the
I can speak specifically
to the difficulty as to the real estate
market at the time where lending had come to
a virtual standstill.
Only in rare cases
were loans being made for a period of time.
14
following
(Swope
Dep.
at
40
(emphasis
added)).
He
also
testified
that,
unlike with previous loans, Atlantic Bank required Swope to give
a joint and several guaranty.
of
Swope's
the
above
lending
testimony concerning the
shows,
is
Swope's
devoid
of
knowledge
and
experience
with NHX
words,
(Id. at 49.)
his
any
appears
availability of
concerning
technical
to
be
and what
opinion
testimony and is
opinion
is
the
wholly
read
proper
not appropriate as
the
methodology
based
he
That is the extent
in
loans.
standstill
or
on
his
of
in
specialized
personal
newspapers.
subject
As
In
lay
other
opinion
expert testimony under Rule
702.
Swope's
value.
third
opinion
Defendants
assert
Hills'
market
value
sale.
(Defs.'
Opp.
was
Br.,
concerns
that
Swope
$8,000,000
influence"
repeatedly
his
denied
National Hills'
(Id.
a
reach
National Hills.
In
186)
a
in April
proper
See Fed.
conclusion,
because
Hills'
opine
the
that
time
of
market
National
the
short
In direct questioning,
that
at
"would inform"
46-69.)
definite
But
opinion
or
Swope
concerning
valuation because he did not know the prevailing
2011.
According to his own testimony,
to
at
factors
opinion.
reaching
capitalization rates
data
will
Doc. 192 at 4. )
Swope testified concerning some
"would
National
the
Swope's
Evid.
Court
Dep.
at
7-9,
44.)
Swope had insufficient facts or
expert
R.
(Swope
opinion
15
to
the
value
of
702(b).
GRANTS
proffered
as
Plaintiffs'
opinion
motion
testimony
does
(Doc.
not
satisfy the requirements of Federal Rule of Evidence 702.
Swope
will not be permitted to testify as an expert on these topics.1
C. Opinion Testimony of Jack Paller
According
"may give
Defendants'
opinion
negotiations
and how
to
to
testimony concerning
meet
satisfying
previous
disclosure,
the
these
experiences."
contingencies
terms
and
(Defs.'
the
of
attorney
Paller
complexities
the
conditions
Expert
Jack
of
Electrolux
lease
compared to
Disclosures
the
1
his
6.)
Plaintiffs argue that Paller is unqualified to give the opinions
because
his
he
legal
lacks
familiarity with the
experience
is
unrelated
to
negotiations
his
and because
proffered
opinions.
Upon reviewing Paller's deposition, the Court agrees.
The
first
topic
in
Defendants'
disclosure
appears
to
address the complexity of the negotiations over the terms of the
Electrolux Lease and the terms of the side agreements with Fresh
Market and the Development Authority of Richmond County.
Paller
repeatedly explained that he did not negotiate the terms of the
Electrolux
package
Lease,
with
the
Fresh
Market's
Development
concessions,
Authority
of
or
the
Richmond
bond
County.
1 In their reply brief, Plaintiffs argued that Swope's opinion
regarding the value of National Hills is also inadmissible as lay
opinion testimony under Rule 701 because "he is not in possession of
sufficient information to allow him to form an estimate of value,
indeed specifically disclaimed
Br., Doc. 203 at 2. ) At this
is laid at trial, the Court
regarding the value of National
and
having any [estimate]." (Pis.' Reply
time, and assuming a proper foundation
permits Swope to offer his opinion
Hills as a lay witness.
16
(Paller Dep.
as
that
of
at 6-7,
a
10, 12.)
"scrivener"
In general,
who
took
the
he described his role
business
terms
that
were
negotiated by the parties and put them into "legalese."
(Id. at
11,
of
14.)
Paller
agreements
with
does
counsel
discuss
for
exchanging
Electrolux
representatives from Fresh Market.
sharing
of
these
agreed terms
(Id.
at
drafts
was
and
drafts
the
Paller
part
therefore
Authority
and
But Paller is clear that the
of
translating
into "legally enforceable documents
12.)
the
disclaimed
the
earlier
and language."
having
an
expert
opinion concerning the complexity of the negotiations.
Defendants
the
also argue that
difficulty
Defendants
Lease's
contingencies.
Plaintiffs
claim
contingencies
are
that
Paller's testimony will address
faced
(Defs.'
whether
business
or
in
satisfying
Opp.
not
matters
Br.,
Doc.
Defendants
not
the
within
Electrolux
193
would
at
3.)
meet
Paller's
the
legal
experience,
therefore rendering Paller unqualified as an expert.
(Pis.'
to Exclude Paller,
Mot.
The
Lease's
Court
Doc.
183,
agrees with Plaintiffs.
contingencies
would
or
would
Ex.
1.)
Whether the
not
be
Electrolux
satisfied
is
ultimately a question of commercial real estate and not a matter
of legal expertise.
Accordingly,
17
the Court
finds that
Paller
lacks
the
requisite
expertise
in
commercial
real
estate
to
testify as an expert on this topic.2
To conclude,
the Court GRANTS
Defendants'
Jack Paller from testifying as an expert.
IV.
As
discussed
motions.
(Docs.
above,
183,
motion to exclude
(Doc.
183.)
CONCLUSION
the
185,
Court
GRANTS
186.)
To
Plaintiffs'
the
extent
Plaintiffs'
motions address lay opinion testimony under Rule 701,
DENIES
the motions
Swope,
and
Paller
on
will
those
be
grounds.
Accordingly,
permitted to
give
opinion
Daubert
the Court
Timberlake,
testimony,
but not as experts.
ORDER ENTERED at Augusta, Georgia, this
/rft^ day of May
2016.
/
HONORA^fEE J. RANDAL HALL
UNITED STATES
JOUTHERN
DISTRICT JUDGE
DISTRICT
OF GEORGIA
2 Defendants' disclosure suggests that Paller will compare the
difficulty of satisfying these contingencies
with
his previous
experience.
(Defs.' Expert Disclosures 1 6.)
Paller could, for
instance, discuss his previous experience with clients who were or
were not able to satisfy similar contingencies in leases he drafted.
Testimony comparing the difficulty of satisfying these contingencies
to past successes or failures would assist the jury and would be based
only on Paller's first-hand experience as his clients' attorney and
not specialized knowledge in the commercial real estate field.
Such
testimony would be suitable as lay opinion testimony.
See Fed. R.
Evid.
701.
18
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