B Choice Limited v. Epicentre Development Associates, LLC et al

Filing 272

ORDER OVERRULING 262 Objection to Magistrate Judge's order.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
B CHOICE LIMITED,
Plaintiff,
v.
EPICENTRE DEVELOPMENT
ASSOCIATES, LLC, et al.,
Defendants.

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May 31, 2017
David J. Bradley, Clerk

CIVIL ACTION H-14-2096

ORDER
Pending before the court is defendant and counter-plaintiff EpiCentre Development
Associates, LLC (“EDA”) and defendants EpiCentre Development Associates II, LLC, Alianza
Financial Services, LLC, Alianza Holdings, LLC, Vanguard Equity Holdings, LLC, Vantage Equity
Holdings, LLC, Vantage Financial Services, LLC, Vantage Plus Corp., Vantage Plus Development
Company, LLC, Vantage Realty Holdings VI-X, LLC, Omar Botero, Jr. a/k/a Omar Botero, Albert
F. Delaney, and Gilberto Iragorri’s (collectively, the “EpiCentre Defendants”) limited objection to
the Magistrate Judge’s order (Dkt. 262). Dkt. 265. The Magistrate Judge’s order grants in part and
denies in part the EpiCentre Defendants’ motion to exclude certain portions of the plaintiff’s expert
report and testimony (Dkts. 226, 229, 231, 234). Dkt. 262. Having considered the order, objection,
motion, and the applicable law, the court finds that the EpiCentre Defendants limited objection
should be OVERRULED.
The EpiCentre Defendants challenged the expert report and testimony of the plaintiff’s expert
Elvis Foster. Dkts. 226, 229, 231, 234. First, the Magistrate Judge’s order concluded that any
arguments to exclude specific lines of testimony are evidentiary issues, which are properly the

subject of a motion in limine. Dkt. 262 at 8. The Magistrate Judge declined to rule on their
exclusion. Id. Second, the Magistrate Judge considered the EpiCentre defendants’ Daubert
arguments regarding Foster’s qualifications as an expert, and concluded that Foster was not an expert
in real estate development but that he can testify as an expert in forensic accounting, tax, and fraud.
Dkt. 262 at 9.
The EpiCentre Defendants assert a limited objection that Foster should not be allowed to
offer legal conclusions about the defendants’ intent to commit fraud or testify about plaintiff B
Choice Limited’s state of mind in relying on any misrepresentations. Dkt. 265 at 2–3. The
EpiCentre Defendants also argue that it is impossible for Foster to testify regarding the state of mind
of the plaintiff and intention of EpiCentre Defendants regarding the elements of fraud, which are
within his purview as an expert, without testifying about real estate development issues, which the
Magistrate Judge has ruled are outside his expertise. Id. at 4.
The court does not find this limited objection to be contrary to the Magistrate Judge’s order
that any evidentiary issues regarding “legal conclusions, speculation, or summary testimony” in the
expert opinion should be raised as a motion in limine. Therefore, the court OVERRULES this
objection. Dkt. 262. The EpiCentre Defendants may reassert any concern regarding this testimony
from Foster in their motion in limine.
The Magistrate Judge’s order is ADOPTED IN FULL. Dkt. 262.
Signed at Houston, Texas on May 31, 2017.

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Gray H. Miller
United States District Judge
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