Moore v. Westgate Resorts Ltd., L.P.
3:18-cv-00410
E.D. Tenn.Jun 27, 2025Background
- Plaintiffs are timeshare purchasers at Westgate Smoky Mountain Resort, alleging high-pressure sales and failures to disclose material facts, and seek class certification for similarly situated buyers.
- Claims include violations of the Tennessee Time-Share Act, unjust enrichment, various forms of misrepresentation and fraud, breach of contract, and civil conspiracy.
- Judge Corker previously dismissed some counts and some plaintiffs’ claims based on the statute of limitations.
- Defendants designated Howard Nusbaum, a former ARDA president, as an expert to rebut Plaintiffs’ expert, Kenneth Free, on industry practices and disclosures.
- Plaintiffs moved to exclude Nusbaum’s testimony on grounds of lack of reliability, relevance, and helpfulness to the jury under Federal Rule of Evidence 702 and Daubert.
- The current opinion addresses the admissibility of three areas of Nusbaum’s opinions: on disclosures, corporate structure, and Kenneth Free’s qualifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Nusbaum’s opinions on disclosures | Lacks factual basis; opinions based on ipse dixit, not data. | Experience and review of Public Offering Statement (POS) are sufficient. | Excluded as unhelpful; jury can evaluate disclosures. |
| Admissibility on corporate structure | Opinion is an inadmissible legal conclusion, not fact-based. | Industry structure is common; not opining on legality, just normalcy. | Excluded as unreliable; no analysis of actual setup. |
| Admissibility on Free’s industry qualifications | Nusbaum has no first-hand knowledge of Free’s history/founding HGV. | Tenure and commemorative research give him basis to comment on Free. | Admissible as fact/factual basis for cross-exam weight. |
| Overall application of Rule 702/Daubert to expert | Nusbaum’s testimony fails on relevancy/reliability/"fit". | Nusbaum’s industry expertise grounds his opinions. | Motion granted in part, denied in part. |
Key Cases Cited
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (extends Daubert gatekeeping to all expert testimony)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (establishes standards of relevance and reliability for expert evidence)
- Greenwell v. Boatwright, 184 F.3d 492 (requirement that expert’s opinions "fit" facts of the case)
- Woods v. Lecureux, 110 F.3d 1215 (experts cannot offer legal conclusions)
- In re Scrap Metal Antitrust Litig., 527 F.3d 517 (clarifies role of Rule 702 for reliability)