Gable v. Nikou et al

Filing 57

MEMORANDUM AND ORDER DENIED 55 MOTION to Strike 47 Designation of Expert Witness List (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GARRETT GABLE,
Plaintiff,
v.
NIKOU GROUP INVESTMENTS,
INC., et al.,
Defendants.

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November 27, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2927

MEMORANDUM AND ORDER
This case is before the Court on the Motion to Strike Defendants’ Expert
Designations (“Motion”) [Doc. # 55] filed by Plaintiff Garrett Gable, to which
Defendants Nikou Group Investments, Inc. and Reza M. Nikou filed a Response [Doc.
# 56]. Plaintiff neither filed a reply nor requested an extension of the reply deadline.
Having reviewed the record and the applicable legal authorities, the Court denies
Plaintiff’s Motion.
I.

BACKGROUND
In August 2013, Plaintiff purchased a used 2007 Dodge Ram (the “Vehicle”)

from Defendants. In September 2016, Plaintiff filed this lawsuit alleging, inter alia,
a violation of the Federal Motor Vehicle Information and Cost Savings Act, 49 U.S.C.
§ 37201 (“Odometer Act”). Plaintiff bases his Odometer Act claim on a CarFax
report he obtained in August 2016.
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Defendants seek to present opinion testimony from Andrew Fiffick, Matthew
Gliniak Jr., and Reza Nikou. Plaintiff has moved to strike this testimony as
inadmissible expert testimony pursuant to Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).1 Plaintiff
asserts that these witnesses lack expertise in the area of odometer and title fraud, that
their testimony is not the product of reliable methodology, and that their testimony
will not assist – indeed, will actually confuse – the trier of fact. Plaintiff’s Motion is
ripe for decision.
II.

STANDARD FOR EXPERT TESTIMONY
Witnesses who are qualified by “knowledge, skill, experience, training or

education” may present opinion testimony to the jury. FED. R. EVID. 702; see, e.g.,
Whole Woman’s Health v. Hellerstedt, __ U.S. __, 136 S. Ct. 2292, 2316 (2016);
Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc); Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009). To be admissible, an expert’s proffered

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Additionally, Plaintiff moves to strike the expert designation and testimony of Chris
Hill. Hill is an Assistant General Manager at Mannheim, Inc., the company that
conducted the auction at which Defendants purchased the Vehicle. Defendants intend
to offer non-expert testimony from Hill regarding the facts surrounding Mannheim’s
sale of the Vehicle to Defendants. Because Defendants are not offering opinion or
other expert testimony from Hill, there is no basis to exclude his testimony under
Daubert and Kumho.

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testimony must be both relevant and reliable. See Daubert, 509 U.S. at 591-92;
Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016).
The expert testimony must be relevant and the expert’s proposed opinion must
be one that would assist the trier of fact to understand or decide a fact in issue. See
Weiser-Brown Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 529
(5th Cir. 2015); Bocanegra v. Vicar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)
(citing Daubert, 509 U.S. at 591-92). “A party seeking to introduce expert testimony
must show (1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” Huss, 571 F.3d at 452 (citing
Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007)); see also
Carlson, 822 F.3d at 199.
“Reliability” requires that the proponent of the expert testimony must present
some objective, independent validation of the expert’s methodology. See Brown v.
Illinois Cent. R. Co., 705 F.3d 531, 536 (5th Cir. 2013). The objective of the Court’s
gatekeeper role is to ensure that an expert “employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.”
Kumho, 526 U.S. at 152; Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir.
2006).

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The Court’s gatekeeping role is no substitute, however, for the adversarial
process. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002).
“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596; MM Steel, L.P.
v. JSW Steel (USA) Inc., 806 F.3d 835, 852 (5th Cir. 2015).
III.

ANALYSIS
A.

Andrew Fiffick

Andrew Fiffick has provided an Inspection and Appraisal Report (“Fiffick
Report”), Exh. A to Plaintiff’s Motion. In the Fiffick Report, he offers his opinion
that the odometer on the Vehicle has not been altered. Additionally, Fiffick addresses
certain statements by Plaintiff’s expert. Plaintiff argues that Fiffick’s opinions should
be excluded because he is not qualified in the area of odometer and title fraud, because
his methodology is flawed and unreliable, and because he fails to make disclosures
required by Federal Rule of Civil Procedure 26(a)(2)(B).
Regarding Fiffick’s qualifications, the record demonstrates that he is qualified
through forty-two years experience in the automotive repair industry, including his
ownership and operation of an automotive repair business in which he has personally
worked on thousands of automobiles and has personally built more than sixty-five

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vehicles. Fiffick has been an Automotive Service Excellence certified master
automotive repair technician for thirty years, which includes training and testing on
electrical and electronic systems in automobiles. The Court finds Fiffick to be
qualified to provide opinion testimony consistent with his report.2
Fiffick’s methodology regarding the condition of the Vehicle and the accuracy
of the odometer reading at the time of purchase are sufficiently reliable. Fiffick
conducted a physical inspection of the Vehicle, performed a road test of the Vehicle,
and verified that the mileage stored in the Vehicle’s computer system is the same as
the mileage shown on the odometer. This methodology, particularly the comparison
between the mileage shown on the odometer and that recorded on the Vehicle’s
computer system, is consistent with industry standard practice.
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires a retained
expert to provide a written report and to include the following information:
(iv)

(v)

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the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and

The Court’s practice is that the witness’s report is not admitted into evidence as his
testimony at trial but, instead, the witness presents his opinions through live or
deposition testimony.

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(vi)

a statement of the compensation to be paid for the study and
testimony in the case.

FED. R. CIV. P. 26(a)(2)(B)(iv)-(vi). Fiffick has advised Plaintiff that he has not
authored any publications in the prior 10 years, and that he has not testified at trial or
deposition within the past four years. In compliance with the compensation disclosure
required by paragraph (vi), Fiffick produced to Plaintiff a copy of his compensation
agreement. Fiffick has complied with the requirements of Rule 26(a)(2)(B) and the
request to strike his testimony on this basis is denied.
B.

Matthew Gliniak Jr.

Matthew Gliniak Jr. testified in his deposition regarding his experience with
CarFax reports, including the report in this case. Based on his personal experience,
Gliniak questions the accuracy of the CarFax report on the Vehicle. Additionally,
Gliniak testified that, based on his knowledge and experience, the electronic
odometers in vehicles today cannot be “rolled back” because the mileage is stored in
the Vehicle’s computer. Plaintiff argues that Gliniak’s testimony should be stricken
because he “lacks the relevant qualifications” and his testimony is not relevant
because it lacks sound methodology.
Gliniak has over fifty years of experience as an automobile dealer, particularly
in the field of “used automotive retailing.”

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Plaintiff complains that Gliniak’s methodology is unreliable because he has
never inspected the Vehicle at issue in this case. Gliniak’s testimony regarding his
lack of contact with the Vehicle, however, is relevant because Plaintiff has produced
CarFax documents indicating that CarFax contacted Gliniak regarding the mileage on
the Vehicle. Gliniak denies the contact from CarFax. He is not offering expert
testimony regarding CarFax reports. Instead, he is questioning the accuracy of the
CarFax report in this case based on the references to communications with him that
he states did not occur.
Gliniak’s testimony regarding the ability to alter the electronic odometer in
vehicles where the mileage is recorded on the vehicle’s computer is based on his
extensive knowledge and experience with used vehicles, including those with an
electronic odometer. He is providing his understanding of electronic odometer
integrity based on his own personal knowledge and experience.
Defendants have demonstrated that Gliniak is qualified by knowledge and
experience to testify in the form of an opinion. His reliance on years of experience
and personal knowledge is reliable methodology for his opinion regarding the inability
to alter an electronic odometer with mileage recorded on the Vehicle’s computer

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system. His testimony regarding CarFax reports is based on personal experience and
is admissible to the extent it is not subject to any other objection at trial.3
C.

Reza Nikou

Nikou will offer testimony regarding valuation of the Vehicle. Plaintiff argues
that the testimony should be stricken because Nikou is not qualified, he uses an
improper methodology, and he is an interested party.
Nikou has twelve years of experience owning and managing a used automobile
dealership. He has purchased and sold over 1,200 used automobiles. He has attended
vehicle auctions, and has inspected hundreds of vehicles. He uses multiple sources
to track the value of used vehicles. In this case, he used a computerized system known
as a Mannheim Market Report to obtain an estimate of the Vehicle’s value. Nikou’s
testimony regarding the value of the Vehicle when it was sold is based on this
experience and the industry-recognized Mannheim Market Report.4 Plaintiff’s
argument that Nikou cannot offer opinion testimony because he is a party is

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Gliniak was not specially retained to provide expert testimony in this case and,
therefore, he does not need to comply with the requirements of Rule 26(a)(2)(B). The
same applies to witness Reza Nikou.

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Plaintiff’s argument that Nikou’s valuation does not take an altered title into account
in unavailing. It has not been established in this case that the title was improper, and
neither Nikou nor any other defense witness is required to base his testimony on an
assumption that the title was altered improperly. Plaintiff, of course, is entitled to
cross-examine Nikou on this issue.

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unsupported by any legal authority. Indeed, an expert witness’s interest in helping the
party who retained him is not, alone, enough to exclude his testimony. See In re
Mirant Corp., 334 B.R. 800, 814 (Bankr. N.D. Tex. 2005). The request to strike
Nikou’s testimony is denied.
IV.

CONCLUSION AND ORDER
Defendants have demonstrated that Andrew Fiffick, Matthew Gliniak Jr., and

Reza Nikou are qualified to present the challenged opinion testimony in accordance
with the Federal Rules of Evidence. Defendants are not offering opinion testimony
from Chris Hill.
Plaintiff’s disagreement with Defendants’ evidence goes to the proper weight
to be given the witnesses’ opinions rather than to their admissibility. Should there be
a trial, Plaintiff can cross-examine the witnesses and present evidence from which a
jury could decide to reject the witnesses’ opinions. The Court finds at this stage,
however, that the challenged testimony is relevant, reliable, and likely to assist the
trier of fact. As a result, it is hereby
ORDERED that Plaintiff’s Motion to Strike Defendants’ Expert Designations
[Doc. # 55] is DENIED.
SIGNED at Houston, Texas, this 27th day of November, 2017.

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NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE