Brown et al v. K & L Tank Truck Service Inc et al
MEMORANDUM AND ORDER granting in part and denying in part 99 Motion to Exclude. Please see order for details. Signed by District Judge J. Thomas Marten on 10/24/2017. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN BROWN and BARBARA BROWN,
Case No. 15-9587-JTM
K&L TANK TRUCK SERVICE, INC.,
ALFONSO MARTINEZ, and TOM HERRELL,
MEMORANDUM AND ORDER
This matter is before the court on plaintiffs John and Barbara Brown’s Motion to
Exclude Certain Opinion Testimony of Charles H. Claar, Jr. pursuant to Federal Rule of
Evidence 702 (Dkt. 99). Plaintiffs argue that Mr. Claar is not qualified to give certain
opinions and further that his testimony does not comport with the legal requirements of
an expert witness.
For the reasons stated below, plaintiffs’ motion is granted in part,
and denied in part without prejudice.
Mr. Claar received his Bachelor of Science with a concentration in accounting
from Kansas State University in 1974. Mr. Claar has no other degrees, but he is a
Certified Public Accountant (“CPA”) with the accounting firm Lewis, Hooper & Dick in
Garden City, Kansas. Mr. Claar has provided accounting services to defendant K&L
Tank Truck Service, Inc. (“K&L”) for decades.
Defendants filed a Disclosure of Expert Witness for Mr. Claar on December 28,
2016, stating Mr. Claar saw K&L’s “financial information monthly from the late 1970s to
the present, he made certain accounting adjustments and prepared monthly financial
repo[rt] compilations, he prepared K&L’s tax returns, and he consulted with the
management of K&L regularly.” (Dkt. 100-2, at 2). Mr. Claar is also identified as a fact
witness for defendants based on his participation in some of the underlying events
relevant to this case.
Defendants did not retain Mr. Claar as an expert in this case,
however, several of his opinions related to relevant facts and issues were developed
during his work as K&L’s CPA.
District courts are to perform a “gatekeeping” role concerning the admission of
expert testimony. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–93
(1993); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). The
admissibility of expert testimony is governed by Fed. R. Evid. 702, which states:
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
(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
(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
of the case.
The court performs a two-part analysis when determining whether an expert’s
opinions are admissible. Marten Transp., Ltd. v. Plattform Advert., Inc., 184 F. Supp. 3d
1006, 1009 (D. Kan. 2016). First, the court considers whether the witness is qualified by
“knowledge, skill, experience, training, or education” to render the opinions; and
second, the court must determine whether the witness’s opinions are “reliable” under
the principles set forth in Daubert and Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137,
147–48 (1999). “The rejection of expert testimony is the exception rather than the rule.”
Marten Transp., 184 F. Supp. 3d at 1009 (citing Fed. R. Evid. 702 advisory committee
Defendants’ motion for summary judgment was granted as to plaintiffs’ claims
of fraud, age discrimination, whistleblower retaliation, and failure to pay wages under
the Kansas Wage Payment Act. Thus, defendants concede and the court agrees that Mr.
Claar’s testimony on those matters—both fact and expert—is no longer relevant. In the
event that Mr. Claar’s testimony on these matters becomes relevant at trial, the parties
may renew their arguments limited to the evidence introduced at trial.
Defendants also agree that Mr. Claar’s expert testimony does not involve
scientific knowledge. Instead, it involves technical and/or other specialized knowledge
based on his training as a CPA and his experience in practicing public accounting. It is
undisputed that Mr. Claar is a CPA, and to the extent that Mr. Claar lacks personal
knowledge about the events relevant to plaintiffs’ claims, he may provide expert
testimony based upon his specialized knowledge and experience as a CPA.1 However,
Mr. Claar may not provide expert opinions and/or testimony regarding the credibility
of defendants and other witnesses or “articulate the ultimate principles of law
governing the deliberations of the jury.” See Specht v. Jensen, 853 F.2d 805, 808 (10th Cir.
IT IS THEREFORE ORDERED this 24th day of October, 2017, that plaintiffs’
Motion to Exclude Certain Opinion Testimony of Charles H. Claar, Jr. (Dkt. 99) motion
is granted in part, and denied in part without prejudice.
s/ J. Thomas Marten
J. Thomas Marten, Judge
Defendants state that many aspects of Mr. Claar’s deposition testimony are fact witness testimony,
however, several aspects of Mr. Claar’s testimony are arguably based, at least in part, on his specialized
training as a CPA and practice as public accountant. Defendants designated and disclosed Mr. Claar as a
possible expert witness to cover both bases for admission of his testimony at trial—admissible fact
testimony or admissible expert testimony.
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