Everest Stables, Inc. v. Rambicure et al

Filing 184

ORDER. The Court grants Rambicure's motion to exclude testimony (DN 180 ). cc: Counsel (JM)

Case 3:15-cv-00576-BJB-CHL Document 184 Filed 03/09/22 Page 1 of 5 PageID #: 2806

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
EVEREST STABLES, INC.

PLAINTIFF

V.

NO. 3:15-CV-576-BJB

WILLIAM C. RAMBICURE, JR., ET AL.

DEFENDANTS

* * * * *
MEMORANDUM OPINION & ORDER
This legal-malpractice case arises from a horse deal gone south. Everest
Stables agreed with Crestwood Farm Bloodstock in 2008 that Crestwood would sell
Everest’s horses. See Everest Stables, Inc. v. Rambicure, 803 F. App’x 819, 821 (6th
Cir. 2020). As required by that contract, Crestwood (a boarding farm and sales agent)
set up auctions for Everest’s horses. But Everest sent an agent to an auction to drive
up the selling price by placing a high bid on Everest’s behalf. No one outbid Everest’s
agent, so the sale failed. Id. Each side then sued the other in prior litigation that
established Everest breached the implied covenant of good faith and fair dealing by
effectively setting a reserve price equal to its own bid. See Crestwood Farm
Bloodstock, LLC v. Everest Stables, Inc., 751 F.3d 434, 445–46 (6th Cir. 2014)
(affirming summary judgment on Crestwood’s behalf).
Everest then filed this lawsuit against William Rambicure and the Rambicure
Law Group for legal malpractice. It says Rambicure gave Everest erroneous and
ultimately very costly legal advice that nothing in the Crestwood contract prevented
Everest’s agent from bidding at the auction. Complaint (DN 1) ¶¶ 1, 29. To prevail
on this claim, Everest must prove that (1) an “employment relationship” existed
between Everest and Rambicure, (2) “the attorney neglected his duty to exercise the
ordinary care of a reasonably competent attorney acting in the same or similar
circumstances;” and (3) this negligence “proximately cause[d]” damages to Everest.
Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky. 2003) (quotation omitted).
To establish the standard of care that attorneys owe their clients, Everest
offers the testimony of a lawyer named Gary M. Weiss. See Weiss Report (DN 1802). Weiss plans to testify that Rambicure breached its duty by failing to advise
Everest of the implied covenant of good faith and fair dealing, which in his view every
lawyer should know about. Rambicure moved to exclude Weiss’s testimony under
Federal Rule of Evidence 702. DN 180 (citing Daubert v. Merell Dow Pharms., Inc.,
509 U.S. 579 (1993)). Because Everest has not shown Weiss’s testimony to be reliable,
the Court agrees with Rambicure and excludes Weiss’s testimony.
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***
Federal Rule of Evidence 702 governs the admissibility of expert testimony: “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” so long as the testimony
satisfies four requirements:
(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;
(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. The Rule requires trial judges to ensure that expert testimony is
relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
That is a “flexible” inquiry, id. at 594, which affords trial judges “considerable
leeway,” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
The Sixth Circuit has interpreted the Daubert line of cases and Rule 702 as
interposing a three-part requirement: (1) “the witness must be qualified by
knowledge, skill, experience, training, or education;” (2) “the testimony must be
relevant, meaning that it will assist the trier of fact;” and (3) “the testimony must be
reliable,” as measured by the sufficiency of its factual basis and the reliability of its
methods. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008)
(quotation omitted). The proponent of the expert testimony bears the burden of
establishing that the testimony meets those requirements by a preponderance of the
evidence. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000).
Here the parties dispute every prong of the three-part test.
1. Qualifications
An expert can be qualified based on “knowledge, skill, experience, training, or
education.” FED. R. EVID. 702. But trial courts exercising their gatekeeper function
may not blindly accept an assertion that an expert is qualified to testify. Whether a
proposed expert’s experience qualifies him “to offer an opinion on a particular subject
depends on the nature and extent of that experience.” United States v. Cunningham,
679 F.3d 355, 379 (6th Cir. 2012).
The crux of the parties’ disagreement is whether knowledge or experience in
equine law is necessary to offer an opinion on the standard of care Rambicure owed
Everest. See Motion (DN 180-1) at 16–17; Response (DN 181) at 11. Weiss, who is
an attorney, admits that he has “been involved in very few cases involving horse
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litigation,” Weiss Report ¶ 2. He has, however, “been involved in at least 100 legal
malpractice cases.” Id. Everest contends that Weiss is qualified because the standard
of care doesn’t depend on the subject matter. Response at 11.
A lack of equine-law experience is not disqualifying here. To be sure, the
specific actions that Rambicure should have taken may depend on the unique
circumstances of the case and the type of legal practice at issue. But that goes to the
weight, rather than admissibility, of Weiss’s testimony. The Sixth Circuit has
explained that “cross-examination” should be used to attack “deficiencies in [an
expert’s] professional background or credentials.” Cunningham, 679 F.3d at 379; see
also Antioch Co. Litig. Tr. v. McDermott Will & Emery, LP, No. 3:09-cv-218, 2016 WL
4480650, at *2 (S.D. Ohio Aug. 25, 2016) (Defense counsel “can certainly crossexamine” a proposed expert “about not participating in a transaction similar to the
2007–2008 sales process and the fact that she has not practiced in 23 years, but these
facts do not disqualify her.”). And Weiss’s extensive involvement with legalmalpractice cases, lengthy legal career, and writings on legal malpractice all support
his qualifications to testify. See Weiss CV (DN 180-2) at 1–2 (listing publications);
Weiss Report ¶ 2.
2. Relevance
Rambicure next argues Everest conceded the irrelevance of Weiss’s testimony
by representing to the Court that it didn’t need expert testimony to prove its case.
See Motion at 17 (citing Everest Trial Brief (DN 164) at 4). Even assuming Weiss’s
testimony is unnecessary, however, that doesn’t necessarily make it irrelevant. The
“concession” Rambicure perceives doesn’t follow from Everest’s prior position, which
the Court did not adopt in any event. See DN 174 (granting Everest leave to obtain
a substitute expert witness, despite Everest’s position that an expert wasn’t
essential).
The proposed testimony is undoubtedly relevant to Everest’s case. As the
plaintiff, it bears the burden of proving that Rambicure did not exercise the “ordinary
care of a reasonably competent attorney acting in the same or similar circumstances.”
Marrs, 95 S.W.3d at 860. Undoubtedly, testimony from an attorney familiar with
legal-malpractice cases could be helpful to determining the scope of that duty. See
United States v. Geiger, 303 F. App’x 327, 331 (6th Cir. 2008) (expert testimony on
the “nature of the attorney-client relationship and the ethical duties Geiger’s
attorneys … may have assisted the jury in evaluating” an element of his defense).
Because Weiss could potentially help a jury understand Rambicure’s actions in light
of the standard of care, his testimony is relevant. See Madej v. Maiden, 951 F.3d 364,
370 (6th Cir. 2020) (In determining relevancy, “a court should consider the elements
that a plaintiff must prove.”).

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3. Reliability
Weiss’s testimony, however, is unreliable and must be excluded because it does
not indicate how he reached his opinions. In assessing reliability, the Court’s focus
“must be solely on principles and methodology, not on the conclusions that [experts]
generate.” Daubert, 509 U.S. at 595.
The relevant paragraphs from Weiss’s report (he wasn’t deposed) fail to reveal
any standards, principles, or discipline that guided his opinion about Rambicure’s
performance:
8. This advice was clearly substandard and caused a disaster. The
appropriate advice was simply to say “don’t do this.” The duty of good
faith and fair dealing is mandatory when it comes to contracts, and
Rambicure failed to advise Everest that this duty existed and that it
created a huge risk.
10. … It is my professional opinion based upon a reasonable degree of
probability that Rambicure violated the duties he owed to Everest
because Everest was not entitled to send an agent to the auction and set
a reserve, but Rambicure told him he was. Rambicure had a duty to give
Everest accurate advice about an agreement he worked on for Everest,
based on what Rambicure knew or should have known was the law.
Common sense would tell you as much.
11. Much was made of the language in the agreement about
“commercially reasonable” or “exercise best efforts and with utmost good
faith.” That language may have affected Rambicure’s advice, because
Rambicure may have thought Crestwood had a fiduciary duty to Everest
but not vice versa. But if that affected Rambicure’s advice, then the
advice was even worse, because Rambicure was wrong about that too.
The fact of the matter is that Everest is in this jam because his lawyer
gave him very bad advice well below the standard of practice.
Weiss Report at 2–3.
Weiss clearly agrees with Everest that Rambicure’s advice was wrong. But
why was it “clearly substandard?” Weiss never identifies the standard. And why
would advising Everest “don’t do this” have sufficed? Weiss doesn’t explain. An
earlier paragraph states that Weiss has “been involved in at least 100 legal
malpractice cases.” Id. ¶ 2. But it’s unclear how this experience or anything else
forms a “reliable foundation” for his conclusions about Rambicure’s advice. Daubert,
509 U.S. at 597. Although his lack of experience in equine law doesn’t necessarily
disqualify him as an expert, that gap in his resume makes it harder to identify any
reliable methods, skill, or experience Weiss brings to bear in reaching or explaining
his opinion.
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To the contrary, Weiss repeatedly emphasizes that his conclusion is
“straightforward” or derived from “common sense” alone. Weiss Report ¶¶ 10, 12. If
true, this simply illustrates that his expertise adds nothing to the jury’s
understanding of the facts of the case. See Rondigo, LLC v. Casco Twp., 537 F. Supp.
2d 891, 898 (E.D. Mich. 2008) (“Perhaps the strongest argument supporting the lack
of a rational tie between the expert’s [methodology] and the facts, is the inability of
the expert to explain the basis for [that choice].”). Weiss’s short report points to
nothing specific about his “knowledge, skill, experience, training, or education,” FED.
R. EVID. 702, that connects his expertise to his opinion in this case—the critical link
that would entitle him to offer his opinion to the jury as an expert witness. See
Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (That “an idea is
based on common sense … means, however, that the district court was well within
bounds to conclude that expert testimony on [this subject] … was inadmissible.”). Nor
does his report engage at all with the text or history of the contract or the various
industry practices (reserves, “RNAs,” buybacks, and the like) at issue in this dispute.
With a nod to “the duty of good faith and fair dealing,” his report avoids all
engagement with the specific legal problems Rambicure and Everest faced in 2008
and face once again in this lawsuit. Is this really “the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field”? Kumho Tire, 526
U.S. at 152.
Everest responds that “Weiss can and does reliably draw on his education and
decades of experience as a practicing lawyer to opine on how the standard of practice
or care applies to the facts.” Response at 14. Certainly, an expert’s opinion may not
require “rigorous testing of methodology or peer review,” but he must “still provide a
methodology that can be proven to be reliable.” Seiber v. Estate of McRae, No. 1:11–
cv–111, 2013 WL 5673601, at*5 (W.D. Ky. Oct. 17, 2013) (quotation omitted). Simply
asserting that advice was “substandard” hardly shows how the conclusion was
reached or what the standard of care requires. See EQT Prod. Co. v. Vorys, Sater,
Seymour and Pease, LLP, No. 15-cv146, 2018 WL 1996797, at *20 (E.D. Ky. Apr. 27,
2018) (“Even a generous reading of [the] expert report provides no explanation of the
[legal] standard of care… let alone the ‘basis and reasons’ for such an opinion.”); SAAP
Energy v. Bell, No. 1:12-cv-98, 2020 WL 5044145, at *6 (W.D. Ky. Aug. 26, 2020)
(“absence of any case law” in legal-malpractice expert’s report “is glaring”). The Court
is not required to admit conclusions “only by the ipse dixit of the expert” and will
exclude Weiss’s testimony as unreliable. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d
244, 254 (6th Cir. 2001) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
ORDER
The Court grants Rambicure’s motion to exclude Weiss’s testimony (DN 180).

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March 9, 2022