Brown and Brown of Mississippi, LLC v. Baker

Filing 94

ORDER granting 68 Motion to Strike Signed by District Judge Louis Guirola, Jr on 11/07/2017 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
BROWN AND BROWN OF
MISSISSIPPI, LLC
v.

PLAINTIFF/
COUNTER-DEFENDANT
CAUSE NO. 1:16CV327-LG-RHW
DEFENDANT/
COUNTER-PLAINTIFF

SHERRIE BAKER

ORDER GRANTING MOTION TO STRIKE
EXPERT AFFIDAVIT OF STEVE GREGORY
BEFORE THE COURT is Brown and Brown of Mississippi, LLC’s Motion
[68] to Strike Expert Affidavit of Steve Gregory. The Motion has been fully briefed.
After reviewing the submissions of the parties, the record in this matter, and the
applicable law, the Court finds that the Motion should be granted.
BACKGROUND
Brown, an insurance agency, filed this lawsuit against its former employee,
Sherrie Baker, asserting claims for injunctive relief, violations of the Mississippi
Uniform Trade Secrets Act, and tortious interference with prospective business
relations. Baker filed several counterclaims alleging employment discrimination
based on her age and gender.
In support of her Motion [64] for Summary Judgment, Baker submitted an
affidavit signed by Steve Gregory. In the affidavit, Gregory testifies:
In my capacity as a Healthcare Benefits insurance consultant, and on
the basis of my professional and personal knowledge during my
approximately thirty-two years in the industry, I have gained expert
knowledge of the practices and requirements necessary to be able to

sell and be a Healthcare Benefits insurance consultant, and service
accounts and customers associated with Healthcare Benefits Plans.
(Aff. at 1, ECF No. 64-2). He offers opinions concerning the requirements for
serving as a healthcare benefits consultant. He further opines that “it is [his]
expert opinion that Brown and Brown of Mississippi, LLC does not have any
personnel appointed with any accident, health, and life insurance carrier and,
therefore, cannot sell or service Healthcare Benefit Insurance or Plans in their
Gulfport, MS office.” (Id. at 3). He also claims that it would be a public disservice
to prevent a consultant from contacting clients during the insurers’ open enrollment
period, which typically takes place each fall. (Id.)
Brown moves to strike Gregory’s affidavit, because Baker did not timely
designate him as an expert. Baker does not dispute that Gregory was not timely
designated, but she asserts that she is offering him as a fact witness only.
DISCUSSION
Federal Rule of Evidence 701 provides that, for lay witnesses, “testimony in
the form of an opinion [is] limited to one that is: (a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge.” As a result, the Fifth Circuit has held that “a lay opinion
must be based on personal perception, must be one that a normal person would
form from those perceptions, and must be helpful to the jury.” United States v.
Riddle, 103 F.3d 423, 428 (5th Cir. 1997).

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[T]he distinction between lay and expert witness testimony is that lay
testimony results from a process of reasoning familiar in everyday life,
while expert testimony results from a process of reasoning which can
be mastered only by specialists in the field . . . . [A] lay opinion must be
the product of reasoning processes familiar to the average person in
everyday life. Moreover, any part of a witness’s opinion that rests on
scientific, technical, or specialized knowledge must be determined by
reference to Rule 702, not Rule 701.
United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (internal quotation
marks and citations omitted).
Gregory’s opinions are expert opinions because his opinions are not based on
his personal perception but are informed by his experience and training. Baker
apparently concedes that Gregory should not be permitted to testify as an expert.
Therefore, Brown’s Motion to Strike is granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Brown and
Brown of Mississippi, LLC’s Motion [68] to Strike Expert Affidavit of Steve Gregory
is GRANTED.
SO ORDERED AND ADJUDGED this the 7th day of November, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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