Everest Stables, Inc. v. Jester et al

Filing 79

ORDER re letter briefs 76 , 75 & 77 - It is hereby ORDERED that: 1. Nielsen may testify as an expt wit re: Petionville's diminution in value.; 2. Everest did not forfeit its claim for lost stud svc contracts. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 9/2/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EVEREST STABLES, INC.,

:
:
Plaintiff
:
:
v.
:
:
MICHAEL JESTER, PENN RIDGE
:
FARMS, LLC, and THOMAS REIGLE, :
:
Defendants
:

CIVIL ACTION NO. 1:14-CV-1631
(Chief Judge Conner)

ORDER
AND NOW, this 2nd day of September, 2016, upon consideration of the letter
briefs (Docs. 75-77) submitted by the parties in response to the court’s order (Doc.
70) dated August 17, 2016, directing the parties to produce relevant evidence
regarding the claims of plaintiff Everest Stables, Inc. (“Everest”), concerning
diminution of value of the stallion Petionville and Petionville’s lost stud service
contracts, wherein Everest contends that Jeffery Nielsen (“Nielsen”), owner of
Everest, will present expert testimony in support of the diminution in value claim
and that Nielsen provided deposition testimony to substantiate the claim of lost
stud service contracts, (see Doc. 75 at 1-3, 5-6), and wherein defendants respond
that Nielsen is not an expert, that he was not timely disclosed as an appropriate
expert, and that Nielsen conceded to a lack of evidence to support his claim for lost
stud service contracts, (see Doc. 76 at 3-5; Doc. 77 at 1-2, 3-4), and it appearing that
Federal Rule of Civil Procedure 26 requires pretrial disclosure of all witnesses a
party may use at trial, and further requires a written report for expert witnesses
retained or specially employed to give expert testimony, or, if a written report is not

required, disclosure of the subject matter, facts, and opinions to which the expert
witness will testify, FED. R. CIV. P. 26(a)(2)(A)-(C), and the court observing that the
standard as set forth by the Third Circuit Court of Appeals for expert testimony
under Federal Rule of Evidence 702 requires the court to consider qualification,
reliability, and fit of the proffered witness, FED. R. EVID. 702; see Schneider ex rel.
Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003), and the court finding
that Everest is not compelled to submit an expert report for Nielsen because he is
not retained or specially employed by Everest, and therefore Everest is bound only
by the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2)(C), FED.
R. CIV. P. 26(a)(2)(C), and the court further finding that Nielsen has sufficient
background in the thoroughbred industry, (Doc. 75 at 6, Ex. B at 6-9), to be qualified
as an expert witness, see In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir.
1994), ample experience, (Doc. 75 at 6, Ex. B at 8-10, 15-17), to be reliable as an
expert witness, see Schneider, 320 F.3d at 406, and an opinion that is fit for expert
testimony, as it will assist the jury with deciding the case, see In re Paoli, 35 F.3d at
742-43, and the court observing that, while Nielsen is not listed as a non-retained
expert in Everest’s pretrial memorandum, (Doc. 66), Everest did disclose damages
for the diminution in value claim in its interrogatory responses, (Doc. 75 at 5, Ex. D
at 4; Doc. 76 at 2), and defendants did explore Nielsen’s opinion regarding
diminution of value with him during his deposition, (Doc. 76 at 3-4; Doc. 77 at 3-4),
such that defendants were presented with a “summary of the facts and opinions to
which the witness is expected to testify,” FED. R. CIV. P. 26(a)(2)(C), and the court
concluding that allowing Nielsen to testify will not prejudice defendants as
2

defendants have retained an expert of their own who may testify at trial to refute
any evidence presented by Nielsen, (Doc. 75 at 6; Doc. 77 at 2-4, Ex. R2), and it
appearing that the court should not itself weigh the evidence regarding lost stallion
stud contracts to determine the truth of the matter but instead determine whether
there is a triable issue of fact, see Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999),
and the court recognizing that Nielsen claims to have been appraised of eight stud
service contracts by Thomas Reigle, (Doc. 75 at 2), and Thomas Reigle denies this
allegation, (Doc. 76 at 3 n.1), and the court finding that this creates a triable issue of
fact that must be presented to the jury, it is hereby ORDERED that:
1.

Nielsen may testify as an expert witness regarding Petionville’s
diminution in value.

2.

Everest did not forfeit its claim for lost stud service contracts.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania