Blaze Chaus, LLC v. State Farm Fire and Casualty Insurance Company

Filing 115

ORDER AND REASONS re 52 MOTION to strike or limit the testimony of A. Philip Moss, Jr., CPA; ORDERED that State Farm's 52 motion is GRANTED IN PART with respect to testimony by Moss as to business losses incurred by Azure Spa, Inc., and DEFERRED UNTIL TRIAL in all other respects. Signed by Judge Lance M Africk on 10/5/2015.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BLAZE CHAUS, LLC

CIVIL ACTION

VERSUS

NO. 15-552

STATE FARM FIRE AND CASUALTY
COMPANY

SECTION I

ORDER AND REASONS
The Court has pending before it a motion1 filed by defendant, State Farm Fire and Casualty
Company (“State Farm”), to strike or limit the testimony of A. Philip Moss, Jr., CPA, an accountant
retained by plaintiff, Blaze Chaus LLC (“Blaze”). State Farm moves to exclude testimony by Moss
because (1) his opinion regarding business losses “does not survive a Daubert challenge,” and (2)
his opinion relates to entities other than Blaze.2
State Farm’s second argument fails in part as a result of the Court’s separate order and
reasons granting leave to amend the complaint to add Kelly G. Burkenstock, M.D., APMC as an
additional plaintiff.3 State Farm’s first argument is mooted by Blaze’s concession that it does not
oppose exclusion of any expert opinion by Moss.4 The Court will be in a better position at trial to
assess the basis for, and admissibility of, any fact testimony or lay opinion testimony offered by
Moss. See La. Med. Mgmt. Corp. v. Bankers Ins. Co., No. 06-7248, 2007 WL 2377137, at *1 (E.D.

1

R. Doc. No. 52.
See R. Doc. No. 52-1, at 1, 6-8.
3
The motion should be granted, however, with respect to testimony as to any losses
incurred by Azure Spa, Inc., for the reasons set forth in that order and reasons.
4
R. Doc. No. 58, at 1.
2

1

La. Aug. 16, 2007) (noting that “a company’s accountant may offer lost business profits opinion
testimony as a lay witness because of his personal knowledge of the company’s finances”); see also
DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 685-86 (5th Cir. 2003) (discussing “foundational
requirement” of personal knowledge underlying lay opinion testimony which “helps to eliminate the
risk that a party will circumvent the reliability requirements set forth in Federal Rule of Evidence
702 by adducing expert testimony in lay witnesses’ clothing”).5
Accordingly,
IT IS ORDERED that State Farm’s motion is GRANTED IN PART with respect to
testimony by Moss as to business losses incurred by Azure Spa, Inc., and DEFERRED UNTIL
TRIAL in all other respects.

New Orleans, Louisiana, October 5, 2015.
________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

5

The Court does note, however, that the July 10, 2015 letter from Moss to Dr.
Burkenstock merely lists the estimated revenue losses provided by Dr. Burkenstock. Such letter
notes that Moss has “not verified or confirmed [her] estimates to be correct as [he has] not
completed [her] 2014 financial statements and tax returns.” R. Doc. No. 52-3, at 2. Accordingly,
the Court has reservations, which will be addressed at trial, relating to whether Moss can
establish a sufficient foundation which will allow his lay opinion testimony.
2