Virginia College, LLC v. Martin et al

Filing 291

ORDER granting 177 Motion to Exclude for the reasons stated in the order. Signed by District Judge Daniel P. Jordan III on December 17, 2012. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
VIRGINIA COLLEGE, LLC

PLAINTIFF

V.

CIVIL ACTION NO. 3:11CV682 DPJ-FKB

WARREN L. MARTIN, JR., ET AL.

DEFENDANTS
ORDER

This tort action is before the Court on Plaintiff’s motion to exclude the testimony and
strike the reports of two expert witnesses [177], Thomas A. Wicker and Larry Stamps.
Defendants have responded in opposition. The Court, having considered the memoranda and
submissions of the parties along with the pertinent authorities, finds that Plaintiff’s motion
should be granted.
I.

Facts and Procedural Background
Plaintiff Virginia College, LLC, a post-secondary educational institution, filed this action

against attorneys Warren L. Martin, Jr. and Kenya R. Martin and their respective law firms,
asserting four causes of action: (1) defamation, (2) abuse of process, (3) intentional interference
with a business relationship, and (4) malicious prosecution. Virginia College complains that the
Martins made misstatements regarding two of its programs—the surgical technology program
and the practical nursing program—and improperly initiated a civil suit against it.
Plaintiff has moved to exclude the testimony and strike the reports of two of Defendants’
expert witnesses, attorneys Wicker and Stamps. These attorneys, through their reports, lay out
the legal standards applicable to Plaintiff’s claims and offer their legal opinions as to the

culpability of the Martins.1 Virginia College submits that these reports and proposed testimony
are impermissible legal conclusions and should be struck. The Court agrees.
II.

Analysis
Pursuant to Federal Rule of Evidence 702, expert testimony is admissible if it “will assist

the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702
(emphasis added). Admittedly, Rule 704(a) provides that “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” But neither Rule 702 nor Rule 704(a) allows an experts
to offer legal conclusions. C.P. Interests, Inc. v. Cal. Pools, Inc., 238 F.3d 690, 697 (5th Cir.
2001); see also Estate of Sowell v. United States, 198 F.3d 169, 171–72 (5th Cir. 1999)
(affirming exclusion of expert testimony as an inadmissable legal opinion); Askanase v. Fatjo,
130 F.3d 657, 673 (5th Cir. 1997) (affirming finding that expert’s testimony was a legal opinion
and inadmissable); Jarrow v. Cupit, No. CIV. A. 99-3539, 2000 WL 1537989, at *1 (E.D. La.
Oct. 17, 2000) (excluding legal opinion testimony).
There is a difference between offering an opinion that may embrace the ultimate issue and
offering a legal opinion that does nothing more than tell the trier of fact how to decide the
ultimate issue. Opinions that are “nothing more than legal arguments” are not admissible.
Snap-Drape, Inc. v. Comm’r of Internal Revenue, 98 F.3d 194, 198 (5th Cir. 1996) (affirming
decision to strike expert testimony); see also BNY Mellon, N.A. v. Affordable Holdings, Inc., No.
1:09CV226-SA-JAD, 2011 WL 2746301, at *1 (N.D. Miss. July 12, 2011) (excluding expert
opinions on conclusions of law “because they do not assist the trier of fact in understanding the

1

Plaintiff does not challenge the portion of Stamps’s report that deals with the
reasonableness and necessity of attorneys’ fees.
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evidence, instead merely telling the trier of fact what result to reach”). Defendants cited no
contrary authority in response to Plaintiff’s memorandum.
Applying these standards to the reports from Wicker and Stamps, it is clear that their
opinions are inadmissible. Looking first to Stamps’s report, he states in a conclusory manner
that, under Mississippi law, there is no evidence to support a verdict that Defendants engaged in
malicious prosecution or abuse of process. As to the intentional-interference-with-businessrelations claim, Stamps lists the five elements of said claim, applies the law to the facts as they
have been presented to him, and determines that Defendants’ conduct does not satisfy the
elements of the claim. Stamps sums up his report as follows:
Careful analysis of the facts and events of this case reveals that the actions of
Warren L. Martin, Jr.; Warren L. Martin, Jr., P.A.; Kenya R. Martin; and Kenya
R. Martin, LLC did not fall within the legal standard of and they are not [sic]
guilty of neither malicious prosecution, abuse of process nor intentional
interference with business relations . . . .
Stamps’s Report [178-2], Ex. B at 3. In closing, he recommends that “the claims . . . should be
dismissed.” Id. at 5.
Wicker focuses his report on the failure of Plaintiff’s defamation claim. As pointed out
by Plaintiff, his report reads like a motion for summary judgment. After reviewing the applicable
law, Wicker ultimately opines that (1) there is no evidence that the Martins acted with actual
malice, which is required to prevail on a defamation claim against a vortex public figure such as
Virginia College; (2) the Martins’ statements are subject to absolute and/or qualified privilege;
and (3) Virginia College cannot establish an injury resulting from the alleged defamatory
statements. Wicker Report [178-1], Ex. A.

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The Court finds these expert opinions and reports constitute impermissible legal
conclusions and argument that should be excluded. Expert testimony is admissible if it “will
assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid.
702. As this is a bench trial, the trier of fact is the undersigned, and the Court does not require an
expert to apply the law to the facts, which is precisely what Wicker and Stamps endeavor to do.
See Snap-Drape, Inc., 98 F.3d at 198 (affirming exclusion of opinions that were “nothing more
than legal arguments”).
III.

Conclusion
The issues raised in this motion are routine and require no hearing. Based on the

foregoing, the Court finds Plaintiff’s motion [177] is granted.
SO ORDERED AND ADJUDGED this the 17th day of December, 2012.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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