ORDER
This case comes before the Court on the following:
1. Defendants’ Motion to Strike Plaintiffs Computer Forensics Expert, filed by Defendants T.D. Williamson, Inc., TDW Services, Inc., Greg Fou-shi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, Nicole Turner, John Foushi and Bryan McDonald (collectively “TDW”) on December 29, 2006; (Doc. No. 96);
2. Notice of Filing Deposition Transcript of Eric Lakes, filed by TDW on December 29, 2006; (Doc. No. 97);
3. Defendants’ Motion to Strike Plaintiffs Damages Expert, filed by TDW on December 29, 2006; (Doc. No. 98);
4. Notice of Filing Deposition Transcript of Michael O’Rourke, CPA, filed by TDW on December 29, 2006; (Doc. No. 99);
5. Plaintiffs Response to Defendants’ Motion to Strike Plaintiffs Damages Expert, filed by Plaintiff Furmanite America, Inc. (“Furmanite”) on January 9, 2007; (Doc. No. 108);
6. Notice of Filing Deposition Transcript of Henry Fishkind, filed by Furmanite on January 9, 2007; (Doc. No. 109);
7. Notice of Filing Declarations of Eric Lakes, Daniel Matlow, and Michael O’Rourke, filed by Furmanite on January 9, 2007; (Doc. Nos. 110, 111, & 112);
8. Plaintiffs Memorandum of Law in Response to Defendants’ Motion to Strike Plaintiffs Computer Forensics Expert, filed by Furmanite on January 9, 2007; (Doc. No. 113); and
9. Defendants’ [Corrected] Reply to Plaintiffs Response to Defendants’ Motion to Strike Plaintiffs Damages Expert, filed by TDW on March 30, 2007. (Doc. No. 140).
Background
Furmanite and T.D. Williamson, Inc. are both firms which operate in the industrial pipeline repair industry. Prior to December of 2005, Furmanite employed Defendants Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, Nicole Turner, John Foushi as employees in its Orlando, Florida service center. (E.g., Doc. No. 61, ¶ 24). On March 31, 2006, Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, and Nicole Turner all resigned from their employment with Fur-manite, allegedly without providing any advance notice of their resignations and leaving Furmanite’s Orlando office without staffing. 1 (Id. at ¶ 31).
The crux of the instant case is an alleged conspiracy on the part of the corporate and individual defendants to cripple Fur-manite’s Orlando office by having the former employees simultaneously resign on March 31, 2006 while also removing Fur-manite’s property and engaging in trade slander. (See generally Doc. No. 61). TDW denies the above allegations, and Defendants Greg Foushi and Michael Mai-nelli counterclaim for breach of contract and unpaid commissions. (See generally Doc. Nos. 65, 66). As the matter presently before the Court deals with the legal issue of striking expert witnesses, the Court will omit discussion of the remaining factual allegations of the Amended Complaint and the counterclaims.
In its Motion to Strike Plaintiffs Computer Forensics Expert, TDW argues that Furmanite’s computer specialist, Eric Lakes, should be excluded from testifying at trial on the grounds that Plaintiff failed to identify Mr. Lakes as an expert or provide and expert report from him in accordance with the Case Management and Scheduling Order which governs the instant case. (Doc. No. 96, p. 1). In response, Furmanite argues that Mr. Lakes is a hybrid fact/expert witness, and thus an expert report is not necessary under the Federal Rules of Civil Procedure. (Doc. No. 113, p. 9). In the alternative, Furman-ite argues that its disclosure of Mr. Lakes, which occurred twelve (12) days past the disclosure deadline, and its failure to submit an expert witness report, should the Court find one was required, constitute harmless errors which were substantially justified.
(Id.
at pp. 11-16). Finally, Fur-manite states that precluding Mr. Lakes’ testimony is a drastic remedy and that should the Court find for TDW, lesser
In its Motion to Strike Plaintiffs Damages Expert, TDW argues that the opinions of Furmanite’s damages expert, Michael O’Rourke, are based on an invalid and unreliable methodology and erroneous assumptions. (Doc. No. 98, p. 1). TDW argues that Mr. O’Rourke should be stricken under the United States Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals 2 and its progeny. (See generally id.). In response, Furmanite argues that Mr. O’Rourke used an appropriate methodology and that TDW is inappropriately attempting to use Daubert to argue questions relating to the weight and not the admissibility of the proffered evidence. (Doc. No. 108, pp. 2-3). TDW has submitted a Reply Brief which further argues that Mr. O’Rourke did not use financial data available to him in rendering his damages calculations. (Doc. No. 140-2, p. 3).
Standard of Review
The requirements for the admission of expert testimony in light of
Daubert
are well known. “Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in
Daubert;
and (3) the testimony assists the trier of fact, through the application of scientific, technical or specialized expertise, to understand the evidence or to determine a fact in issue.”
City of Tuscaloosa v. Harcros Chemicals, Inc.,
An expert may be qualified “by knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. An expert is not necessarily unqualified simply because her experience does not precisely match the matter at hand.
See Maiz v. Virani,
The most heavily litigated component of the
Daubert
analysis is reliability. Expert testimony “must be ‘scientific,’
Whatever factors are considered, the Court’s focus should “be solely on principles and methodology, not the conclusions they generate.”
Allison v. McGhan Medical Corp.,
Further, “[presenting a summary of a proffered expert’s testimony in the form of conclusory statements devoid of factual or analytical support is simply not enough [to carry the proponent’s burden].”
Cook ex rel. Estate of Tessier v. Sheriff of Monroe County,
A. Damages Expert
The following facts regarding the opinion of proffered damages expert Michael O’Rourke, CPA, are not in dispute. Mr. O’Rourke was timely disclosed as an expert witness, and Furmanite has timely disclosed his expert witness report to TDW. In such report, Mr. O’Rourke stated the following conclusions. First, he estimated that the value of Furmanite’s Orlando office was $9.35 million prior to the resignation of the individual Defendants in the instant case. (Doc. No. 98-2, p. 2). Mr. O’Rourke determined this figure by taking Furmanite’s pre-tax operating income of approximately $467,000 for the first quarter of 2006, “annualizing” it, and multiplying the resulting yearly operating income figure by five. (Id.) Mr. O’Rourke opined that “unrelated parties would reasonably be expected to pay five times annual operating income for the right to the operating results that Furmanite lost as a result of the Defendants’ actions.” (Id.) He then estimated that the value of the business dropped to $0 after the individual Defendants resigned due to the loss of any operating income and staff and the loss of business opportunity. (Id.) Thus, Mr. O’Rourke estimated Furmanite’s damages to be $9.35 million, the difference between its worth on March 31, 2006, and April 1, 2006, not including tort-based damages such as those for defamation, tortious interference, conversion, or punitive damages. (Id. at p. 3).
TDW raises several objections to the methodology and reliability of the witness’ conclusions. First, TDW argues that Mr. O’Rourke’s use of only once quarter of unaudited financial data in calculating the Orlando office’s worth is not professionally acceptable. Secondly, TDW argues that this damages calculation is unreliable in that it assumes without justification that the income of the office would have remained constant. Next, TDW claims that Mr. O’Rourke’s use of a multiplier of five to calculate the worth of the Orlando office is inappropriate, without foundation, based on erroneous assumptions, and belied by the amount Furmanite paid to purchase Flowserve, the company that formerly controlled Furmanite’s Orlando office. Finally, TDW claims that Mr. O’Rourke’s opinion that the office was worth $0 after the former employees resigned is unreliable and inexplicably ignores financial data in the record. In support of such arguments, TDW submits the expert witness report of Dr. Henry Fishkind who echoes these concerns. (See Doc. No. 98-3).
In response, Furmanite argues that Defendants offer merely superficial criticisms of Mr. O’Rourke’s analysis and ignore applicable law that damages need not be proved with absolute certainty. Furman-ite further argues that many of TDW’s attacks relate solely to Mr. O’Rourke’s conclusions and not his methodology. Finally, Furmanite argues that its expert’s methodology was sound and criticizes Dr. Fishkind’s analysis unreliable and speculative points on rebuttal.
After reviewing the arguments and evidence submitted by the parties, the Court finds that TDW’s arguments focus on the weight of the proffered evidence rather than the expert’s chosen methodology. TDW’s arguments that Mr. O’Rourke’s findings are speculative and lead to an unreliable estimate of worth are arguments as to the credibility of Mr. O’Rourke’s findings rather than the general acceptance of his methods. At this stage, the Court is not permitted to conflate admissibility with credibility by considering the relative weight of competing experts and their opinions.
Quiet Technology,
This conclusion is buttressed by the arguments of TDW and the rebuttal report
B. Computer Forensics Specialist
The following facts regarding the proffered computer forensics specialist Eric Lakes are not in dispute. On or about April 6, 2006, Mr. Lakes was hired by Furmanite to locate and secure the data on Furmanite’s computers in its Orlando office. Mr. Lakes acquired data from the eight (8) computer hard drives at the Orlando office, preserving the recovered data and the information regarding which data came from each particular hard drive. Mr. Lakes did not work exclusively for Furmanite, as he continued to service other clients. In November of 2006, Mr. Lakes began to uncover data relevant to the instant litigation. Thus, on November 22, 2006, Furmanite served an Amended Rule 26 Disclosure to TDW to disclose Mr. Lakes as a potential witness with knowledge regarding computer data taken from Furmanite’s computers. (Doc. No. 96-2, p. 10). It is not disputed that Furmanite did not identify Mr. Lakes as an expert witness or provide an expert report from Mr. Lakes. (E.g., Doc. No. 113, p. 8). Allegedly as of the date of the submissions by the parties, Mr. Lakes was still sifting through the relevant data.
TDW now moves to exclude Mr. Lakes from testifying at trial. “Rule 26 imposes specific disclosure requirements upon any witness ‘who is retained or specially employed to provide expert testimony in the ease or whose duties as an employee of the party regularly involve giving expert testimony.’ ”
Prieto v. Malgor,
After reviewing the arguments and evidence submitted by the parties, the Court finds that Mr. Lakes is a fact witness, properly disclosed as such to TDW, and thus will be permitted to testify at trial as to factual matters such as what he ascertained from Furmanite’s computers when initially engaged to examine them. However, because Mr. Lakes was not timely disclosed as an expert witness and did not prepare an expert witness report in accordance with the Court’s Case Management and Scheduling Order, (Doc. No. 39), he will not be permitted to testify as an expert at trial at trial or provide expert opinion.
Mr. Lakes testified that he was retained by Furmanite on or about April 6, 2006, before Furmanite had retained counsel.
In addition, the cases cited by TDW are distinguishable. Unlike the case of
MMI Products, Inc. v. Long,
For these reasons, the Court finds Mr. Lakes was properly disclosed to TDW as a fact witness and thus he may properly testify at trial as to his experience in working on the computers in Furmanite’s Orlando office. Because of this, no expert witness report or expert witness disclosure was required by Mr. Lakes under Rule 26.
The Court, however, cautions Furmanite that attempts to introduce expert opinion testimony at trial of the type discussed in MMI will be excluded on the grounds of unfair surprise due to the failure of Fur-manite to designate Mr. Lakes as an expert witness or timely disclose the nature of such testimony to opposing counsel by the dates provided in the Case Management and Scheduling Order. 3 Likewise, testimony as to matters discovered by Mr. Lakes after the cutoff of discovery in the instant case, (See Doc. No. 39, p. 1; Doc. No. 71), and for which no supplemental disclosure has been timely made are likewise inadmissible at trial.
For these reasons, the Court will deny without prejudice to reassertion at trial TDW’s motion to exclude Mr. Lakes’ testimony.
Conclusion
Based on the foregoing, the Defendants’ Motion to Strike Plaintiffs Computer Forensics Expert, filed by TDW on December 29, 2006, (Doc. No. 96), is DENIED
DONE and ORDERED.
Notes
. John Foushi had previously resigned on March 17, 2006. (E.g., Doc. No. 61, ¶ 28).
.
Daubert,
. For instance, Eric Lakes testified in his deposition that he had no opinion which, if any, files were deliberately manually deleted by the former employees. (Doc. No. 130-2, p. 11). An attempt to introduce expert opinion regarding this issue would likely have to be excluded on the grounds of unfair surprise and failure to timely disclose such information to Defendants in the time provided by the Case Management and Scheduling Order. (Doc. No. 39, p. 1). Testimony that is expert testimony should not "evade the expert witness disclosure requirements set forth in [Rule] 26 simply because the testimony is proffered through a fact witness."
Storage Tech. Corp. v. Custom Hardware Engineering & Consulting Ltd.,
No. 02-12102-RWZ,