Rozone Productions, LLC et al v. Raczkowski et al

Filing 172

ORDER granting 143 Motion for Summary Judgment; denying 145 Motion to Strike; granting in part and denying in part 147 Motion to Strike. Signed by Chief Judge Jeffrey L. Viken on 2/13/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
C. DANIEL ROBERTS,
BANKRUPTCY TRUSTEE FOR
ROZONE PRODUCTIONS, LLC,
Plaintiff,
vs.
ANDREW ROCKY RACZKOWSKI;
TICKETS PLUS INCORPORATED,
d/b/a Star Tickets Plus;
GOOD MUSIC AGENCY, INC.,
d/b/a Talent Buyers Network;
BRIAN KNAFF; and
ROBERT J. STRUYK,
Defendants.

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CIV. 09-5015-JLV

ORDER

Defendant Tickets Plus Incorporated, d/b/a Star Tickets Plus (“Star
Tickets”) filed a motion for summary judgment as to count two of plaintiff’s
amended complaint (Docket 143); defendants Andrew Rocky Raczkowski
(“Raczkowski”) and Star Tickets (jointly “defendants”) filed a motion to strike
two of plaintiff’s proposed expert witnesses (Docket 145); and plaintiff C. Daniel
Roberts, Bankruptcy Trustee for Rozone Productions, LLC (“Rozone”) filed a
motion to strike defendants’ affirmative defenses. (Docket 147). Each motion
will be separately addressed.

STAR TICKETS’ MOTION FOR SUMMARY JUDGMENT
STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if
the movant can “show that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Once the moving party has met its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but rather must produce
affirmative evidence setting forth specific facts showing that a genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Only disputes over facts that might affect the outcome of the case under the
governing substantive law will properly preclude summary judgment. Id. at
248. “[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Id. at 24748 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party,
then summary judgment is not appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving party has failed to
“make a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,

2

323 (1986). In such a case, “there can be ‘no genuine issue as to any material
fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). The key inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
251-52.
DISCUSSION
On June 11, 2012, Rozone filed an amended complaint with the following
causes of action asserted against Star Tickets: count one-breach of contract;
count two-negligent hiring/negligent retention/negligent supervision; count
three-intentional misrepresentation; and count four-deceit. (Docket 135 at pp.
8-9). Each cause of action incorporated the general allegation sections of the
amended complaint. Id. at p. 8. Star Tickets seeks summary judgment only as
to count two of the amended complaint. (Docket 143).
The general allegations of the amended complaint disclose the following
paragraphs to support Rozone’s claims about Star Tickets’ negligent hiring,
negligent retention, and negligent supervision:

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23.

Struyk has provided testimony that, during his time as
the former CEO of Star Tickets, an employee, Jim
Patchin, was caught stealing from the company by
preprinting tickets on the computer system, reporting
the tickets as returned on the system, and then selling
the tickets that were registered as having been returned
for cash, which he intended to keep.

24.

Jim Patchin is the son of Jill Patchin, who was an
employee of Star Tickets at the time at issue, and was
the point person for Star Tickets with Rozone
Productions for the 2008 Rockin the Rally concert
season. In addition, Jill Patchin was the person in
charge of the actual box office on site in Sturgis, South
Dakota, in 2008.

25.

Jim Patchin, Jill Patchin’s son and former employee of
Star Tickets who was fired for theft, was also in Sturgis
in 2008 as a representative and employee or contractor
of Star Tickets, despite Star Tickets’ knowledge of Jim’s
prior theft from the company in a scheme similar to that
which was committed in this matter.

26.

With full knowledge of Jim Patchin’s history of theft from
Star Tickets, Raczkowski and Star Tickets asked Jill
Patchin to run the ticketing of the Rockin the Rally
concert and allowed Jim Patchin to be involved with Star
Tickets at the concerts in Sturgis, South Dakota.

27.

Among Raczkowski’s and Star Tickets’ duties were to
supervise the activities of its sellers and money handlers,
including but not limited to Patchin.

28.

Defendants failed to properly supervise the activities of
Patchin and other ticket sellers and handlers of money.

(Docket 135 at pp. 6-7). Count two makes only the following general allegation:
“Star Tickets failed to properly supervise its employees through the foregoing

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conduct and other conduct, causing damage to the Plaintiff in an amount to be
determined by a jury.” Id. at p. 9 ¶ 40.
Consistent with the requirements of D.S.D. Civ. LR 56.1(A), Star Tickets
submitted five undisputed material facts in support of its motion for summary
judgment with citations to the record. (Docket 164). Under D.S.D. Civ. LR
56.1(B), Rozone filed its objections with citations to the record. (Docket 167).
Star Tickets’ undisputed material facts and Rozone’s objections are:
Star Tickets’ Statement:
1.

Rozone . . . entered into a written contract with Star
Tickets under which Star Tickets was the exclusive ticket
vendor for the August 4, 5 and 6, 2008 concerts at
Glencoe Campground in Sturgis, South Dakota.

Rozone’s Response:
1.

Admit.

Star Tickets’ Statement:
2.

Jim Patchin was hired by Star Tickets to drive out the
equipment for the August, 2008 concerts at Glencoe
Campground and act as a runner for the Star Tickets
employees in the box office.

Rozone’s Response:
2.

Plaintiff admits that Jim Patchin was one of the
employees hired by Star Tickets to work during the
August 2008 Concerts at the Glencoe Campground.
Plaintiff disputes Star Tickets’ inference that Jim Patchin
was hired exclusively to drive equipment or to act as a
runner for Star Tickets’ box office employees. Patchin’s
testimony about his employment duties was vague at
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best. He testified that his “main reason for going was to
drive the van with the computer equipment for my mom
out there.” . . . . He also testified that “after that it was
mainly just a helping hand when [Jill Patchin] needed it.”
. . . Jim Patchin’s mother was no more specific. She
testified that Jim “[w]as hired to drive out the equipment
. . . to assist in being a runner, more or less, for those of
us in the box office.” . . . Jill Patchin rehired her son Jim
Patchin to be present at the 2008 Concerts, despite
having knowledge of his prior act of theft from Star
Tickets.
Star Tickets’ Statement:
3.

Jim Patchin did not sell any tickets at the August, 2008
concerts at Glencoe Campground.

Rozone’s Response:
3.

Plaintiff is without sufficient information to admit or
dispute whether Jim Patchin sold any tickets at the
August 2008 Concerts at Glencoe Campground, and
therefore disputes the same. Jim Patchin testified that
he was in the box office during the 2008 Concerts. . . .
He also testified that he is sure the option for him to
have access to the Veritix system was there, and that
there may have been a password set aside for him. . . .
Jim Patchin’s deposition testimony that he was not
selling tickets is self-serving and therefore not reliable as
an undisputed fact upon which summary judgment can
be granted.

Star Tickets’ Statement:
4.

Jim Patchin did not have access to the Veritix ticketing
system for ticket sales or reports for the August, 2008
concerts at Glencoe Campground.

Rozone’s Response:
4.

Plaintiff disputes that Jim Patchin did not have access to
the Veritix ticketing system for ticket sales or reports for
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the August, 2008 Concerts. Jim Patchin testified that he
had access to the box office. . . . Moreover, Jim Patchin
is not the sole focus of Plaintiff’s negligence claims
against the Defendant Star Tickets. Defendant Star
Tickets is liable for negligently hiring, supervising, and
retaining Star Tickets’ employees. No allegation has
been made that Jim Patchin hired, supervised, or
retained anyone.
Star Tickets’ Statement:
5.

Jim Patchin did not engage in any wrongdoing at the
August, 2008 concerts at Glencoe Campground.

Rozone’s Response:
5.

Plaintiff is without sufficient information to admit or
dispute whether Jim Patchin engaged in any
“wrongdoing” at the August 2008 Concerts, and
therefore denies the same. Other than Jim Patchin’s
self-serving testimony, there is no unrebuttable evidence
that Jim Patchin did not engage in wrongdoing with
others at the 2008 Concerts. Further, Plaintiff’s claims
are based upon the act of being a person who had his
position terminated in the past for theft. Moreover, Jim
Patchin is not the sole focus of Plaintiff’s negligence
claims against the Defendant Star Tickets. Defendant
Star Tickets is liable for negligently hiring, supervising,
and retaining Star Tickets’ employees. No allegation has
been made that Jim Patchin hired, supervised, or
retained anyone.

(Dockets 164 at pp. 1-2 & 167 at pp. 1-3) (emphasis in original).
This case is before the court on diversity jurisdiction pursuant to
28 U.S.C. § 1332. (Dockets 136 at p. 3 ¶ 11 & 138 at p. 3 ¶ 11). “[F]ederal
courts sitting in diversity cases, when deciding questions of ‘substantive’ law,
are bound by state court decisions as well as state statutes.” Hanna v. Plumer,

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380 U.S. 460, 465 (1965) (referencing Erie R. Co. v. Tompkins, 304 U.S. 64
(1938)). Only then can the court determine whether summary judgment is
appropriate. United States v. One Parcel of Real Property, 27 F.3d 327, 329 n.
1 (8th Cir. 1994). The substantive law of the forum state–here, South
Dakota–must be applied. Erie R. Co., 304 U.S. 64 at 78.
In South Dakota “[t]here are three requirements in a negligence claim:
(1) a duty on the part of the defendant; (2) a failure to perform that duty; and
(3) an injury to the plaintiff resulting from such a failure.” Kirlin v. Halverson,
2008 S.D. 107, ¶ 28, 758 N.W.2d 436, 448 (internal quotation marks and
citation omitted). “The existence of a duty is a question of law . . . .” Id.
(internal citation omitted). “The duty involved in a negligent supervision claim
is one of ordinary care.” Iverson v. NPC International, Inc., 2011 S.D. 40, ¶ 23,
801 N.W.2d 275, 283.
[A] negligent hiring claim suggests that at the time an employee was
hired, it was negligent for an employer to engage the employee’s
services based on what the employer knew or should have known
about the employee. A negligent retention claim alleges that
information which the employer came to know, or should have
become aware of, after hiring the employee made continued
employment of the employee negligent. . . . a negligent supervision
claim alleges that the employer inadequately or defectively managed,
directed or oversaw its employees.
Kirlin, 2008 S.D. at ¶ 45, 758 N.W.2d at 452 (emphasis in original). “A
negligent supervision claim alleges that the employer inadequately or
defectively managed, directed or oversaw its employees. . . . a negligent
supervision claim implicates more than the employer’s duty to control the
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employee. A claim of negligent supervision avers that the employer failed to
exercise reasonable care in supervising (managing, directing, or overseeing) its
employees so as to prevent harm to . . . third persons.” Iverson, 2011 S.D. at
¶ 23, 801 N.W.2d at 282.
The crux of defendants’ summary judgment motion is the lack of any
connection between Mr. Patchin’s earlier theft conduct and the theft of money
from Star Tickets which was due Rozone under the contract. In other words,
Rozone must point to some evidence of wrongdoing by Mr. Patchin which
resulted in damages to plaintiff. Anderson, 477 U.S. at 256.
Local Rule 56.1 specifically requires a party opposing a motion for
summary judgment to “identify any material fact as to which it is contended
that there exists a genuine material issue to be tried.” D.S.D. Civ. LR 56.1(B).
Plaintiff’s objections fail to satisfy Local Rule 56.1(B). In response to Star
Tickets’ undisputed material fact statement–Mr. Patchin did not sell any
concert tickets–Rozone failed to specifically point to any evidence to contradict
the statement, but rather alleged “Plaintiff is without sufficient information to
admit or dispute whether Jim Patchin sold any tickets at the August 2008
Concerts at Glencoe Campground, and therefore disputes the same.”
(Docket 167 at p. 2). Similarly, Rozone’s declaration “[Mr.] Patchin’s deposition
testimony that he was not selling tickets is self-serving and therefore not

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reliable as an undisputed fact upon which summary judgment can be granted”
does not constitute evidence, but rather is an unsubstantiated argument. Id.
In response to Star Tickets’ citation to the record showing Mr. Patchin
did nothing wrong during the 2008 concerts, Rozone responded it was “without
sufficient information to admit or dispute whether Jim Patchin engaged in any
‘wrongdoing’ at the August 2008 Concerts, and therefore denies the same.
Other than Jim Patchin’s self-serving testimony, there is no unrebuttable
evidence that Jim Patchin did not engage in wrongdoing with others at the
2008 Concerts.” Id. at p. 3. Rozone’s use of a double negative, without
identifying specific evidence to support its position, does not rise to the level of
a “material fact as to which it is contended that there exists a genuine material
issue to be tried.” D.S.D. Civ. LR 56.1(B).
“The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. See also Thomas
v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (mere allegations, unsupported by
specific facts or evidence beyond a nonmoving party’s own conclusions, are
insufficient to withstand motion for summary judgment). The court should not
be required to “resort[] to rank speculation or conjecture” to conclude there are
sufficient material facts to defeat summary judgment. Ruzicka Electric & Sons,
Inc. v. International Brotherhood of Electrical Workers, Local 1, AFL-CIO, 427

10

F.3d 511, 521 (8th Cir. 2005). “Summary judgment should be granted
when—viewing the facts most favorably to the nonmoving party and giving that
party the benefit of all reasonable inferences—the record shows that there is no
genuine issue of material fact.” Center for Special Needs Trust Administration,
Inc. v. Olson, 676 F.3d 688, 698 (8th Cir. 2012) (citing Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir.) (en banc), cert. denied, ___ U.S.___,
132 S. Ct. 513 (2011)).
The court reaches the same conclusion on Rozone’s argument concerning
Star Tickets’ other employees. Plaintiff fails to specifically direct the court to
any evidence which supports a claim of negligent hiring, supervision or
retention of any Star Tickets employee. D.S.D. Civ. LR 56.1(B); Anderson, 477
U.S. at 252; Thomas, 483 F.3d at 527.
Defendant Star Tickets’ motion for summary judgment (Docket 143) is
granted.
DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S EXPERT TESTIMONY
Defendants move to strike plaintiff’s designated experts, Scott S. Miller
and Tim Stuhlreyer, pursuant to Fed. R. Evid. 702. (Docket 145). Defendants
argue Mr. Miller and Mr. Stuhlreyer “are not qualified in the ticketing or
concert industries and are merely acting as calculators adopting, without any
scrutiny, the attendance figures determined by Dr. Russ and Dr. Rothman
[plaintiff’s expert and defendants’ expert], multiplying those figures by the

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ticket prices to create a revenue range, then backing out expenses to create a
damages range which they revised three times.” (Docket 150 at p. 2).
Defendants challenge plaintiff’s proposed witnesses on three separate grounds:
1.

There is no evidence that either “expert” has the
requisite experience or knowledge in the areas of crowd
size, concert ticketing, or the concert industry . . . .

2.

The testimony is speculative, and therefore unreliable,
because the Reports are not based on any independent
research, and fail to give any definitive answer to the
ultimate question of damages, merely providing a range
....

3.

The testimony is not helpful to the jury because it can,
with the assistance of the parties’ arguments, simply
multiply Russ and Rothman’s crowd estimates by the
ticket prices then subtract expenses, just like the
so-called “experts” did.

(Docket 150 at p. 2). Plaintiff resists defendants’ motion asserting:
Rozone . . . enlisted Convergent Capital Appraisers (“CCA”), a
business valuation and litigation consulting firm, to prepare an
economic damages report for this matter.
The managers of
Convergent Capital, Scott S. Miller and Tim Stuhlreyer, undertook
this analysis and co-authored a lost profits report that calculated two
measures of damages: first, Rozone[’s] . . . lost profits related only to
the 2008 Concerts, and second, Rozone[’s] . . . lost profits related to
the 2009 and 2010 concerts at the Glencoe Campground.
(Docket 158 at p. 2). Through discovery to date, plaintiff asserts the
“Stuhlreyer Report III . . . provides an economic analysis of the lost profits
suffered by Rozone . . . using proper methodology and analysis of the
contributing variables affecting the calculations. CCA is certainly qualified to
render an opinion via Tim Stuhlreyer as to lost profits suffered by Rozone . . .
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and CCA’s report will assist the trier of fact in understanding lost profits and
the calculations used by Plaintiff regarding damages.” Id. at pp. 10-11.
Admissibility of expert testimony is governed by Fed. R. Evid. 702. The
rule states:
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. The court is vested with a gate-keeping function regarding
all expert testimony. The object of the court’s gate-keeping function “is to
make certain that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant
field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). “[T]he
the trial judge must ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). “[T]he trial judge must have

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considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable. That is to say, a
trial court should consider the specific factors identified in Daubert where they
are reasonable measures of the reliability of expert testimony.” Kumho Tire
Co., Ltd., 526 U.S. at 152. “The trial court must have the same kind of latitude
in deciding how to test an expert’s reliability, and to decide whether or when
special briefing or other proceedings are needed to investigate reliability, as it
enjoys when it decides whether or not that expert’s relevant testimony is
reliable.” Id. (emphasis in original). See Allen v. Brown Clinic, P.L.L.P., 531
F.3d 568, 573 (8th Cir. 2008) (“the district court may evaluate one or all of the
following factors: 1) whether the theory or technique can be or has been tested;
2) whether the theory or technique has been subjected to peer review and
publication; 3) whether the theory or technique has a known or potential error
rate and standards controlling the technique’s operation; and 4) whether the
theory or technique is generally accepted in the scientific community.”) (citing
Daubert, 509 U.S. at 593-94).
“The inquiry envisioned by Rule 702 is . . . a flexible one. Its overarching
subject is the scientific validity and thus the evidentiary relevance and
reliability—of the principles that underlie a proposed submission. The focus, of
course, must be solely on principles and methodology, not on the conclusions
that they generate.” Daubert, 509 U.S. at 594-95. “Regardless of what factors

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are evaluated, the main inquiry is whether the proffered expert’s testimony is
sufficiently reliable.” Allen, 531 F.3d at 574.
EXPERT QUALIFICATIONS
Defendants argue neither “Stuhlreyer or [Miller]1 have any knowledge or
expertise in the concert industry or in concert ticketing.” (Docket 150 at p. 9).
The court will focus on Mr. Stuhlreyer as plaintiff’s counsel advised defense
counsel that only Mr. Stuhlreyer would be presented as a trial witness.
(Docket 146-5 at p. 9 at 30:8-18).2
Mr. Stuhlreyer has a master’s degree in business administration and is a
certified public accountant with accreditation in business evaluation. (Docket
146-5 at p. 2 at 5:23-6:21). In addition to being a C.P.A., Mr. Stuhlreyer has
an “ABV”3 certification from the American Institute of Certified Professional
Accountants and an “ASA”4 certification from the American Society of
Appraisers. Id. at p. 3 at 6:21-8:2. In addition to his work in estate gift tax,

1

Defendants incorrectly identify Mr. Miller as “Mr. Smith.” (Docket 158 at
p. 1 n. 1).
2

The court will cite to the appropriate page of a filing in CM/ECF then to the
transcript page and line(s) referenced within the deposition.
3

An “ABV” is “an accredited business valuation certification.” (Docket
146-5 at p. 3 at 6:15-17).
4

An “ASA” is “an accredited senior appraiser.” (Docket 146-5 at p. 3 at
6:15-18.
15

Mr. Stuhlreyer does financial reporting and litigation consulting. Id. at p. 4 at
11:7-12.
Mr. Stuhlreyer and Mr. Miller were asked “to utilize estimates from crowd
estimates and develop a lost profits analysis from that.” Id. at p. 14 at 50:2-4.
The scope of their work “was to use an estimate or range that included both the
Rothman5 analysis and the Russ6 analysis.” Id. at p. 19 at 69:1-3. In addition,
Mr. Stuhlreyer considered Star Tickets’ report as to the number of tickets it
sold for the concerts. Id. at p. 20 at 75:9-14.
Having considered Mr. Stuhlreyer’s deposition testimony, the court is
satisfied, based on the witness’s education, training, and knowledge as a
certified public accountant, Mr. Stuhlreyer is qualified to testify as to plaintiff’s
damages. The court finds Mr. Stuhlreyer is qualified to testify as an expert in
this case. Fed. R. Evid. 702.
THE REPORT DOES NOT STATE A DEFINITIVE DAMAGES AMOUNT
Defendants object because Mr. Stuhlreyer “take[s] Russ and Rothman’s
estimation of crowd size and treats them as high-end and low-end estimations
despite the fact neither were published as same, and multiplies those numbers
by ticket price . . . [Mr. Stuhlreyer’s] conclusion is expressed in a broad range

5

Edward D. Rothman, Ph.D., prepared an “Estimate of Crowd Size at Two
Concerts” for defendants. (Docket 146-3).
6

Mr. Russ prepared a “Report on Analysis of Attendance at Two Concerts”
for plaintiff. (Docket 159-5).
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rather than a definitive amount.” (Docket 150 at p. 9). Mr. Stuhlreyer’s report
of September 12, 2012, does present a series of “Low Estimates,” “Midpoint
Estimates,” and “High Estimates” for the two concerts analyzed. (Docket 159-4
at p. 8). Under Rule 702, the proposed expert testimony must be reliable in an
evidentiary sense. Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir.
2001). “First, evidence . . . must be useful to the finder of fact in deciding the
ultimate issue of fact . . . . This is the basic rule of relevancy. Second, the
proposed witness must be qualified to assist the finder of fact. . . . Third, the
proposed evidence must be reliable or trustworthy in an evidentiary sense, so
that, if the finder of fact accepts it as true, it provides the assistance the finder
of fact requires . . . .” Id. (citing 4 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 702.02[3] (2001) (internal quotation marks
omitted).
It is common for an expert witness to give a range of potential damage
figures depending on a number of variables analyzed by the witness. See
Johnson v. Cowell Steel Structures, Inc., 991 F.2d 474, 477-78 (8th Cir. 1993)
(“Although the jury’s award was on the low end of the damages range presented
by the parties’ experts, it was within the range of damages introduced into
evidence and was well-above the lowest figure presented by [defendant’s
expert].”); Neiman-Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 372 (5th Cir.
1990) (“The jury enjoys substantial discretion in awarding damages within the

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range shown by the evidence.”) (referencing F.H. Krear & Co. v. Nineteen
Named Trustees, 810 F.2d 1250, 1260 (2d Cir.1987)); Kinergy Corp. v.
Conveyor Dynamics Corp., No. 4:01CV-00211 ERW, 2003 WL 26110512 (E.D.
Mo. Oct. 14, 2003) (“[T]he Court finds that [the] testimony will aid the jury in
assessing the range of damages suffered by Kinergy in the event the jury finds
a misappropriation of trade secrets occurred.”). Should the jury conclude
plaintiff is entitled to recover money damages, Mr. Stuhlreyer’s testimony will
be useful for the jury’s consideration.
THE PROCESS IS SIMPLE MATHEMATICS
Defendants suggest Mr. Stuhlreyer’s testimony is not helpful because the
jury can simply multiply the other experts’ crowd estimate figures by the ticket
price, subtract expenses, and arrive at a damages figure. (Docket 150 at p. 2).
Mr. Stuhlreyer’s report incorporates the ultimate conclusions of other
witnesses, considers data supplied by Star Tickets, engages in a number of
comparative mathematical analyses, and then arrives at a mathematical
conclusion which does include three different estimates of plaintiff’s lost
profits. (Docket 159-4). While each step may be analyzed as “simple math,”
the combination of these processes is certainly within the realm of expertise of
a C.P.A. and would be helpful to the jury.
“[T]he factual basis of an expert’s opinion generally relates to the weight
a jury ought to accord that opinion. . . . Thus, unless the factual or

18

methodological basis for the testimony is fundamentally unreliable, its
admission is not an abuse of discretion.” Margolies v. McCleary, Inc., 447 F.3d
1115, 1121 (8th Cir. 2006). Challenges to the factual basis for an expert’s
opinion does not generally affect its admissibility. “As a general rule, the
factual basis of an expert opinion goes to the credibility of the testimony, not
the admissibility, and it is up to the opposing party to examine the factual
basis for the opinion in cross-examination. Only if the expert’s opinion is so
fundamentally unsupported that it can offer no assistance to the jury must
such testimony be excluded.” Children’s Broadcasting Corp. v. Walt Disney
Co., 357 F.3d 860, 865 (8th Cir. 2004) (citing Bonner v. ISP Technologies, Inc.,
259 F.3d 924, 929-30 (8th Cir. 2001) (quoting Hose v. Chicago Northwestern
Transportation Co., 70 F.3d 968, 974 (8th Cir. 1996)). Whether Mr.
Stuhlreyer’s conclusions are accurate or should be accepted by the jury may be
tested by vigorous cross-examination. Moran v. Ford Motor Co., 476 F.2d 289,
291 (8th Cir. 1973).
The court finds Mr. Stuhlreyer’s proposed testimony qualifies under Fed.
R. Evid. 702. Defendants’ motion (Docket 145) is denied as to Mr. Stuhlreyer.
PLAINTIFF’S MOTION TO STRIKE
DEFENDANTS’ AFFIRMATIVE DEFENSES
Rozone moves to strike defendants’ affirmative defenses number six,
seven and fourteen. (Docket 148 at pp. 3, 6, & 8). Defendants’ brief stipulates
plaintiff’s motion should be granted as to affirmative defense number seven19

unclean hands. (Docket 156 at p. 1 n. 1). The court will grant plaintiff’s
motion as to defendants’ affirmative defense number seven.
Defendants’ affirmative defense number six states “[a]ny damages alleged
by Plaintiff are the direct and proximate result of Plaintiff’s own misconduct or
negligence.” (Docket 138 at p. 14 ¶ 6). Affirmative defense number fourteen
asserts “Plaintiff was guilty of negligence or other conduct which was the sole
or partial cause of any injury complained of, that said contributory negligence
constitutes proximate cause of the injuries complained of, and as a result,
Plaintiff’s claims for damages are barred or diminished by such
contributory negligence.” Id. at p. 16 ¶ 14. Both affirmative defenses assert
contributory negligence. For that reason, the court will use the phrase
“contributory negligence” for the remainder of this discussion.
Defendants acknowledge their affirmative defense of contributory
negligence is available only in response to plaintiff’s negligent hiring,
supervision and retention claims. (Docket 156 at p. 8). The court dismissed
count two of the amended complaint,Rozone’s only negligence claim. Plaintiff’s
motion to strike affirmative defenses six and fourteen is moot.
ORDER
Based on the above analysis, it is hereby
ORDERED that defendant Star Tickets’ motion (Docket 143) is granted
and count two of plaintiff’s amended complaint is dismissed with prejudice.

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IT IS FURTHER ORDERED that the defendants’ motion to strike
plaintiff’s proposed expert witness (Docket 145) is denied.
IT IS FURTHER ORDERED that plaintiff’s motion to strike affirmative
defenses (Docket 147) is granted in part and denied in part. Defendants’
affirmative defense number seven is stricken. Plaintiff’s motion to strike
defendants’ affirmative defenses six and fourteen is denied as moot.
Dated February 12, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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