Compass Chemical International, LLC v. Access Chemicals & Services, LLC
Filing
48
MEMORANDUM AND ORDER denying 33 MOTION to Exclude the Opinions and Testimony of Robert Hancock. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
COMPASS CHEMICAL
INTERNATIONAL, LLC,
Plaintiff,
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v.
ACCESS CHEMICALS
SERVICES, LLC,
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Defendant.
CIVIL ACTION NO. H-11-2151
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MEMORANDUM AND ORDER
Pending is Plaintiff Compass Chemical International, LLCrs
Motion to Exclude the Opinions and Testimony of Robert Hancock
(Document No. 33) , to which Defendant Access Chemicals
LLC has
filed its response in opposition.
&
After
Services,
carefully
considering the motion, response, reply, and applicable law, the
Court concludes that the motion should be denied.
The admissibility of expert testimony is governed by Federal
Rule of Evidence 702, which 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.
Rule 702 and the principles announced in Daubert v. Merrell Dow
Pharms., Inc., 113 S. Ct. 2786
(1993), apply to technical or
specialized expert
See Kumho Tire Co., Ltd. v.
testimony.
Carmichael, 119 S. Ct. 1167, 1171 (1999); Black v. Food Lion, Inc.,
171 F.3d 308, 310 (5th Cir. 1999).
The district court has a "gate-keeping" role when determining
the admissibility of expert testimony.
See Seatrax, Inc. v. Son-
beck Intll, Inc., 200 F.3d 358, 371 (5th Cir. 2000) .
The court
must determine whether an expert is qualified and whether his
testimony is reliable and relevant.
The purpose 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, 119 S. Ct. at 1176.
The Daubert inquiry is always fact-specific. See Black, 171 F.3d
at 311.
Whether an expert is qualified depends on whether the witness
has "such knowledge or experience in [his] field or calling as to
make it appear that his opinion or inference will probably aid the
trier in his search for truth."
United States v. Hicks, 389 F.3d
514, 524 (5th Cir. 2004), cert. denied, 126 S. Ct. 1022 (2006)
(quoting United States v. Bourseois, 950 F.2d 980, 987 (5th Cir.
1992))
.
An expert's testimony does not always have to be based on
scientific testing; it can be based on personal experience.
See
Kumho Tire, 119 S. Ct. at 1175-76.
However, an expert's self-
proclaimed accuracy is insufficient .
See Gen. Elec. Co. v. Joiner,
118 S. Ct. 512, 519 (1997)
( " [N] othing
in either Daubert or the
Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the
ipse dixit of the expert . " ) .
Whether an expert's testimony is
reliable requires "an assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid."
Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999).
'h
Te
proponent need not prove to the judge that the expert's
testimony is correct, but she must prove by a preponderance of the
evidence that the testimony is reliable." Moore v. Ashland Chem.
Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc) , cert. denied,
119 S. Ct. 1454 (1999). The focus of the inquiry is not upon the
substance of ultimate conclusions reached, but instead upon the
"principles and methodology" used to reach those conclusions.
Daubert, 113 S. Ct. at 2797.
Robert Hancock's opinions and expected testimony seek to rebut
the damages calculations of Plaintiff's retained expert on damages,
Paul A. Tigner ("Tigner").
Plaintiff does not challenge Hancock's
qualifications to give expert testimony on this subject, but
asserts that Hancock's opinions are unreliable.
Defendant retained Hancock as a rebuttal expert to assess
Tigner's report and Hancock does not purport to conduct a damages
assessment of his own.
Hancock first reviewed Tignerl report
s
without having all of the documents Tigner relied upon in writing
his report and Hancock discloses that fact. Hancock states that he
used publications by the American Institute of Certified Public
Accountants, including the Statement on Standards for Valuation
Services No. 1, to analyze Tigner's report.
Hancock in his report
states what he describes as Tigner's "overly general" reporting of
gross margins, variable costs, suitable replacement products for
sales and industry standards, as his basis for concluding that
Tigner's calculations of lost profits are not reliable and are
incapable of being tested. Moreover, without having access at the
time to Plaintiff's tax returns and internal financial statements,
Hancock concedes he was not able to test Plaintiff's alleged lost
profits. Hancock further concludes that Tigner did not follow the
standards of the business valuation profession set out in the
Statement on Standards for Valuation Services No. 1 in several
particulars that he itemized.
Furthermore, Hancock also states
that Tigner's wide and diverse estimates of Plaintiff's diminished
value intrinsically suggest unreliable and speculative bases for
such estimates.
Hancock is qualified to make these and other
Document No. 35, ex. B at 3.
I . ex. B at
d,
3.
4
critiques of Tigner's application of the methodology he relies
upon, and of Tigner's resulting conclusions, even if Hancock
himself did not develop his own estimate of damages.
Moreover, Hancock' s affidavit filed in response to the present
motion was prepared after Hancock received much of the material
relied on by Tigner and therefore elaborates on his opinions in
light of his own review of most of the documentation relied on by
Tigner.
Hancock's affidavit supplements Hancock's report and
235
deposition testimony. See Helen of Troy, L.P. v. Zotos C o r ~ . ,
F.R.D. 634, 637 (W.D. Tex. 2006) (Martinez, J.) (finding affidavit
supplemented disclosures in accordance with Rule 26(e)); FED. R.
CIV. P. 26 (e)(2) (imposing duty to supplement information given by
expert in report and in deposition).
In sum, Hancock has the
requisite qualifications to give expert testimony on this subject,
his opinions are based on sufficient facts and data to assist the
trier of fact, and Plaintiff Is objections to Hancock's approach and
the accuracy of his opinions go not to admissibility but rather to
the weight, if any, that the trier of fact should give to Hancock's
opinions.
Plaintiff argues in the alternative that Hancock's report
should be excluded because he does not provide an alternative
methodology to that used by Tigner . There is no requirement in the
rules or in Daubert and its progeny that a rebuttal expert must use
a different methodology. Hancock expressly states that he is using
the Statement of Standards for Valuation Services No. 1 in opining
on the appropriate method for calculating damages. Plaintiff does
not challenge this methodology; the differences between the experts
are in how properly to apply this methodology to the data and other
facts. Accordingly, it is
ORDERED that Plaintiff Compass Chemical International, LLC1s
Motion to Exclude the Opinions and Testimony of Robert Hancock
(Document No. 33) is DENIED.
The Clerk will enter this Order and send a copy to all counsel
of record.
SIGNED at Houston, Texas on this
day of December, 2012.
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