Jo Ann Howard and Associates, P.C. et al v. Cassity et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants PNC Bank, N.A. and National City Bank, N.A.'s Motion to Exclude the Opinions of Rodney Loomer 3013 is DENIED. Signed by District Judge E. Richard Webber on 1/9/2020. (AFC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JO ANN HOWARD AND ASSOCIATES, P.C.,
J. DOUGLAS CASSITY, et al.,
Case No. 4:09-CV-01252 ERW
MEMORANDUM AND ORDER
This matter is before the Court on Defendants PNC Bank, N.A. and National City Bank,
N.A.’s (collectively “PNC”) Motion to Exclude the Opinions of Rodney Loomer. ECF No. 3013.
The motion is fully briefed and ready for disposition.
This cause of action commenced on August 6, 2009, alleging violations of the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, violations of the Lanham Act,
15 U.S.C. §§ 1051-1141n, state law claims concerning intentional and negligent fraudulent
misrepresentations, negligence and gross negligence, breach of fiduciary duties, and violations of the
Texas Receivership Act, Tex. Ins. Code §§ 443.202-443.205. The action concluded on July 3, 2019,
when after a bench trial, the Court found Defendants liable for breach of fiduciary duty by a trustee.
ECF No. 2953 pp. 265-278. That same date the Court entered judgment in favor of Plaintiffs and
against Defendants PNC in the amount of $102,135,293.07. ECF No. 2954. The Court issued an
Amended Judgment on December 4, 2019 entering a total amount of damages of $99,497,290.24.
ECF No. 3035.
After obtaining judgment in their favor, Plaintiffs filed a Bill of Costs and a Motion for
Award of Attorneys’ Fees. ECF Nos. 2962, 2965. PNC moved to defer ruling on Plaintiffs’ motions
for costs and attorneys’ fees pending the outcome of its appeal to the Eighth Circuit Court of
Appeals. ECF No. 2973. On August 19, 2019, the Court denied PNC’s motion to defer ruling and
issued a Scheduling Order setting forth a discovery and briefing schedule related to Plaintiffs’ Bill of
Costs and Motion for Award of Attorneys’ Fees. ECF No. 2985. The Court further announced it
would award attorneys’ fees and costs to the Plaintiffs, “but only after August 17, 2017, the date of
the Eighth Circuit’s remand to this Court.” ECF No. 2985 p. 2.
Upon completion of the deposition of Plaintiffs’ expert, Rodney E. Loomer, regarding the
reasonableness of Plaintiffs’ requested legal fees, PNC filed the present motion to exclude Mr.
Loomer’s opinions under Daubert because his opinions (1) include fees for unsuccessful claims; (2)
fail to include any independent review to verify accuracy; and (3) are flawed because the bills are
riddled with errors and redundancies. ECF No. 3013. Plaintiffs respond PNC’s motion is without
merit and should be denied.
II. Legal Standard
The admission of expert testimony in federal court is governed by Rule 702 of the Federal
Rules of Evidence.1 A district court acts as a “gatekeeper” when screening expert testimony for
relevance and reliability. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993);
Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). The trial court has broad discretion
concerning the admission of expert testimony, and such decisions will not be overturned on appeal
Under Fed. R. Evid. 702:
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 if: (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.
absent an abuse of discretion. Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 296 (8th Cir. 1996).
All doubts regarding the usefulness of an expert’s testimony should be resolved in favor of
admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (citation
In the motion to exclude the opinions of Rodney Loomer, PNC claims the opinions are
unreliable because they include unsuccessful claims; Mr. Loomer did not review any actual bills or
analyze the billing spreadsheets for accuracy but instead blindly relied on the representations of
counsel for the Plaintiffs; and the bills contain errors and redundancies rendering Mr. Loomer’s
opinions “fundamentally flawed.” In response, Plaintiffs contend Mr. Loomer’s testimony comports
with the law under the Missouri Uniform Trust Code (“MUTC”) and common law in equity.
Plaintiffs further assert Mr. Loomer relied on the type of contemporaneous billing records endorsed
by federal courts, and any inaccuracies account for less than 1% of the total bill requested. Plaintiffs
argue, contrary to PNC’s position, auditing perfection is not the applicable standard for an award of
attorneys’ fees or reliance on expert testimony.
At the outset, the Court notes the arguments contained in PNC’s motion to exclude are also
set forth in its opposition to Plaintiffs’ Amended Motion for Attorneys’ Fees and in PNC’s Motion to
Strike Plaintiffs’ Motion for Attorneys’ Fees. These motions are still pending. Further, PNC has
presented its own expert, Thomas E. Wack, who issued a comprehensive report regarding attorneys’
fees in this matter. Mr. Wack thoroughly assessed Reilly Pozner’s billing entries and Mr. Loomer’s
expert report, and he recalculated Mr. Loomer’s fee estimates. ECF No. 3011-1.
When entertaining a motion for attorneys’ fees, “[t]he trial court is presumed to know ‘the
character of the services rendered in duration, zeal, and ability.’” Waller v. Blast Fitness Grp., LLC,
No. 4:15CV00586 AGF, 2017 WL 6731721, at *3 (E.D. Mo. Dec. 29, 2017) (quoting Ferguson v.
Curators of Lincoln Univ., 498 S.W.3d 481, 498 (Mo. Ct. App. 2016)). Further, the trial court is
considered an expert under Missouri law for setting attorney’s fees, and it may accordingly determine
the amount of attorneys’ fees without the aid of evidence. Id. (citation omitted); see also W. Blue
Print Co., LLC v. Roberts, 367 S.W.3d 7, 23 (Mo. 2012) (“The [trial] court is deemed an expert at
fashioning an award of attorneys’ fees and may do so at its discretion.”).
While Mr. Loomer’s report may be of assistance, the Court is the expert on fees and may
determine the amount of fees with or without the aid of outside expert opinion. Hazelcrest III
Condo. Ass'n v. Bent, 495 S.W.3d 200, 209 (Mo. Ct. App. 2016). Because this Court tried the case
and is acquainted with all the issues involved, it has discretion to assess the evidence and arguments
in support, and in opposition, of Plaintiffs’ motion for attorneys’ fees when calculating the amount of
fees to award, including the evaluation of expert testimony. Id. Based upon the foregoing, Court
will deny PNC’s motion to exclude Rodney Loomer’s opinions regarding attorneys’ fees.
IT IS HEREBY ORDERED that Defendants PNC Bank, N.A. and National City Bank,
N.A.’s Motion to Exclude the Opinions of Rodney Loomer  is DENIED.
Dated this 9th day of January, 2020.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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