Square, Inc. et al v. REM Holdings 3, LLC
MEMORANDUM AND ORDER re: #314 MOTION to Exclude IN PART THE EXPERT TESTIMONY OF JAMES E. MALACKOWSKI filed by Counter Defendant James McKelvey, Jr., Consolidated Filer Defendant Jack Dorsey, Counter Defendant Square, Inc. IT IS HEREBY ORDERED that defendants' motion to exclude in part the testimony of James Malackowski (#314) is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 4/29/16. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ROBERT E. MORLEY, JR., et al.
SQUARE, INC., et al.,
Case No. 4:14cv172
Case No. 4:10cv2243 SNLJ
SQUARE, INC., et al.
REM HOLDINGS 3, LLC,
MEMORANDUM AND ORDER
This matter is before the Court on defendants Square, Inc., Jack Dorsey, and Jim
McKelvey’s motion to exclude in part the testimony of plaintiffs’ expert James
Malackowski (#314). The motion has been fully briefed and is now ready for disposition.
Plaintiffs seek to prove, among other things, that the defendants unlawfully cut
plaintiff Robert Morley out of an alleged joint venture. Plaintiffs have offered the expert
report of James Malackowski in support of their claims. Specifically, and relevant to
defendants’ motion, plaintiffs offer Malackowski’s opinion regarding the typical
expectations of participants in early stage ventures. Defendants move for exclusion of
this aspect of Malackowski’s testimony on the basis that Malackowski seeks to offer the
jury his personal findings of fact and an impermissible legal conclusion that the parties
formed a joint venture.
This Court must act as a “gatekeeper” to “insure that proffered expert testimony is
both relevant and reliable.” Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006)
(quoting Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir. 2003)); see also Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Federal Rule of
Evidence 702 governs the standard for this Court’s admission of expert testimony. It
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.
Fed. R. Evid. 702.
Critically, defendants do not seek exclusion of all of Malackowski’s testimony.
Malackowski was retained to opine on “damages and business issues” according to the
declaration filed with his expert report. The report itself is 56 pages long: pages six
through 29 reviews the facts of the case, and pages 29 through 56 provides Malackowski’s
opinion on damages due to plaintiff. Defendants seek exclusion of Malackowski’s
interpretation of the facts of the case and his conclusion that Morley entered into a joint
venture with defendants (pages 6-29). Defendants maintain that Malackowski’s opinion
violates Rule 702 by reaching the ultimate legal issues in the case, that the opinion is not
the product of reliable principals and methods, and that Malackowski is not qualified to
opine on such issues anyway.
Defendants also characterize Malackowski’s testimony as unreliable, unhelpful,
and impermissible, largely because whether or not an implied joint venture resulted from
the parties’ conduct in 2009 is a legal conclusion to be reached by the judge or jury. At
page 28 of his report, Malackowski states “it is my opinion that Dr. Morley’s relationship
with Mr. Dorsey and Mr. McKelvey could be characterized as a partnership or joint
venture.” Then, at his deposition, Malackowski testified that the parties did in fact create
a joint venture. Plaintiffs state that Malackowski will not present his opinion that a joint
venture existed. Rather, plaintiffs frame Malackowski’s testimony as “presenting start-up
business norms to the jury” and state that his “opinions at trial will provide helpful
orientation to a jury that is unlikely to have experience in startup companies.” (#329 at
It is well-settled that experts may not offer legal conclusions about a case. In re
Acceptance Ins. Companies Sec. Litig., 423 F.3d 899, 905 (8th Cir. 2005). Plaintiffs insist
that Malackowski simply presents business norms and that his opinions will be helpful to a
jury unlikely to have experience in startups. In particular, plaintiffs posit that
Malackowski “intends to opine, based on his extensive experiential expertise, about typical
standards, behaviors, and assumptions in the world of early-stage joint ventures” and that
based on the facts, “other similarly situated parties at similarly nascent stages of business
would assume themselves to be joint owners of the business…”. (#329 at 4 (emphasis
added).) These, plaintiffs insist, are not legal conclusions.
Whether or not such testimony constitutes a legal conclusion, Rule 702 requires that
the “specialized knowledge will help the trier of fact to understand the evidence or
determine a fact in issue.” It is longstanding law that “expert” testimony is properly
if all the primary facts can be accurately and intelligibly described to the jury,
and if they, as men of common understanding, are as capable of
comprehending the primary facts and of drawing correct conclusions from
them as are witnesses possessed of special or peculiar training, experience,
or observation in respect of the subject under investigation,
Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (quoting U.S. Smelting Co. v. Parry, 166 F.
407, 415 (8th Cir. 1909)). To be sure, as plaintiffs say, expert testimony is sometimes
appropriate regarding “industry norms.” Cases relied upon by plaintiffs, however,
involve expert testimony on franchisor site review and evaluation processes, TCBY Sys.,
Inc. v. RSP Co., 33 F.3d 925, 929 (8th Cir. 1994), and testimony on occupational safety
regulatory standards, Pless v. Cleveland Wrecking Co., No. 01-CV-0792(SR), 2006 WL
2690074, at *3 (W.D.N.Y. Sept. 18, 2006).
Here, concepts surrounding human interaction and basic business activity will not
be foreign to the jury. These matters are not technical or complex. Allowing
Malackowski to testify as to what “typical founders presume” and “believe” regarding
ownership (#329 at 11) would be improper because it is unnecessary. Malackowski’s
testimony is thus impermissible because it is not helpful to the jury and, cloaked as expert
testimony, would be unduly prejudicial. “[A]ll the primary facts can be accurately and
intelligibly described to the jury,” and jurors “of common understanding, are as capable of
comprehending the primary facts and of drawing correct conclusions” as anyone else.
Salem, 370 U.S. at 35. The jury will determine the intent of the parties based on their
testimony and contemporaneous evidence. Although Malackowski may testify as to his
assumptions --- e.g., Malackowski assumes a joint venture was formed for the purpose of
his damages calculations --- the validity of those assumptions are for the jury to discern.
See Thomas v. Barze, 57 F. Supp. 3d 1040, 1059 (D. Minn. 2014) (citing Richman v.
Sheahan, 415 F.Supp.2d 929, 942 (N.D. Ill. 2006)).
Defendants argue further that Malackowski should be barred from offering his
opinion because he is not qualified to render opinion on expectations of participants in
early stage ventures, and because his methodology is flawed. The Court need not address
these arguments, however, because it is clear that Malackowski should be prohibited from
offering his opinion that the parties were in a joint venture together.
IT IS HEREBY ORDERED that defendants’ motion to exclude in part the
testimony of James Malackowski (#314) is GRANTED.
day of April, 2016.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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