BARBARA J. HOUSER, Bankruptcy Judge.
Before the Court are two Daubert motions filed by the Defendants, specifically: (1) Scattered Corporation's Motion to Bar Expert Testimony at Trial [Dkt. No. 123] and Brief in Support of Motion to Bar Expert Testimony at Trial [Dkt. No. 124] (the
Federal Rule of Evidence 702 serves as the proper standard for determining the admissibility of expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597-98, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702 provides:
FED.R.EVID. 702. Daubert and its principles apply to both scientific and non-scientific expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The party proffering expert testimony has the burden of establishing by a preponderance of the evidence that the challenged expert testimony is admissible. See FED.R.EVID. 104(a); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.1998).
Daubert directs that the trial court determine admissibility under Rule 702 by following the directions provided in Rule 104(a). Daubert, 509 U.S. at 592, 113 S.Ct. 2786. When making its determination under Rule 104(a), "the court is not bound by evidence rules, except those on privilege." FED.R.EVID. 104(a).
Experts need not be highly qualified to testify, and differences in expertise go to the weight of the testimony, rather than admissibility. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.2009). Nonetheless, courts need not admit testimony that is based purely on the ipse dixit of the expert. Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Moore, 151 F.3d at 276. Further,
Expert witnesses may base opinions on facts or data that the expert "has been made aware of or personally observed." FED.R.EVID. 703. If the facts and data relied on are the sorts that experts in that field would reasonably rely on, then those facts "need not be admissible for the opinion to be admitted." Id. Accordingly, experts may base their opinions on otherwise-inadmissible information, such as hearsay, so long as the information is the sort reasonably relied on in the expert's field. Factory Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518, 524 (5th Cir.2013).
The purpose of Rule 703 is largely practical — experts generally base their opinions on information which, to be admissible in court, would entail "the expenditure of substantial time in producing and examining various authenticating witnesses." Id. (quoting FED.R.EVID. 703, advisory committee's note). "Because experts may use their past experience and professional judgment to make critical decisions on the basis of such information outside of court, Rule 703 was intended `to bring the judicial practice into line with the practice of the experts themselves when not in court.'" Id. at 524 (quoting FED.R.EVID. 703, advisory committee's note). Courts nevertheless must serve a gate-keeping function with respect to Rule 703 opinions to ensure "the expert isn't being used as a vehicle for circumventing the rules of evidence." Id. (quoting In re James Wilson Assocs., 965 F.2d 160, 173 (7th Cir.1992)). "Rule 703 `was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion.'" Id. (quoting Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 808 (N.D.Ill.2005)). The rule "was never intended to allow oblique evasions of the hearsay rule." Id. (quoting Loeffel, 387 F.Supp.2d at 808).
Defendants Leon A. Greenblatt, III ("
With respect to relevance, Greenblatt argues that Bittner's opinion as stated in the Bittner Report (1) fails to disaggregate damages as to him, instead presenting damages as a lump sum despite suing Greenblatt for "a laundry list of alleged wrongs;" Greenblatt Motion at ¶¶ 47-55, and (2) is not evidence of Greenblatt's breach of fiduciary duty damages,
In the Trustee's Response, the Trustee argues, inter alia, that Bittner's expert opinion as contained in the Bittner Report, and the methodology he relied on in coming to his opinion, are reliable and credible. The Trustee further argues that Bittner's reliance on the Hall Reserve Report in coming to his valuation opinion, which led to his damages opinion,
Before turning to what happened at the Daubert Hearing, further discussion of two of the Defendants' reliability challenges is warranted. With regard to the Defendants' arguments that the Bittner Report must be excluded because the foundation for it is the Hall Reserve Report, which cannot be admitted in evidence due to the Trustee's failure to designate Hall as an expert witness at trial, the Defendants rely largely on Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794 (N.D.Ill.2005). As relevant here, Loeffel addressed the application of Rule 703 to expert testimony. There, the magistrate judge determined that an expert's testimony violated Rule 703 because the numbers
The Fifth Circuit discussed the Loeffel opinion in Factory Mut. Ins. Co. v. Alon USA, L.P., 705 F.3d 518 (5th Cir.2013). In Factory Mutual, various entities (collectively "
FM presented an expert appraiser ("
On appeal, Alon argued that the lower court abused its discretion by allowing Miles to testify regarding estimated depreciation because "Miles knew that physical depreciation had occurred ... but he did nothing to calculate that depreciation" beyond relying on a figure estimated by Veolia employees. Id. Among the cases cited to by Alon was Loeffel for the proposition that Miles was impermissibly acting as a "mouthpiece" because his testimony relied solely on interviews with Veolia employees. Id. at 524-25. The Fifth Circuit, however, held that:
Id. at 525. The Fifth Circuit found that the district court was in the best position to evaluate "whether Miles uncritically relied upon the depreciation figures given to him by Veolia's employees through his testimony." Id. (emphasis added). The Fifth Circuit ultimately affirmed the district court's admission of Miles' testimony finding, among other things, that "Miles did clearly state that the sort of information relied upon here — the opinions of others — is the sort of information reasonably relied upon by appraisers." Id.
With this precedent in mind, the Court will now return to the parties' respective arguments. According to the Defendants, "`Bittner's `professional knowledge and ability' are not adequate to evaluate [the] calculations and opinions upon which he based his opinion, that is, the Hall Report. `A scientist, however well-credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty. That would not be responsible science.'" Greenblatt Motion at ¶ 44. In short, the Defendants argue that the Bittner Report is based upon an unreliable foundation because the starting point of Bittner's analysis and opinion is the data and opinions contained in the Hall Reserve Report, which (1) Bittner did not "audit or verify," Bittner Report at ¶ 29; (2) Bittner is not qualified to evaluate; and (3) cannot be admitted into evidence because the Trustee failed to designate Hall as an expert witness at trial.
After a careful review of the Bittner Report and the Hall Reserve Report in preparation for the Daubert Hearing, the Court understands why the Defendants are concerned about the reliability of the Bittner Report. From its detailed review of both reports, it is clear to the Court that if there are errors in the Hall Reserve Report, the calculations performed by Bittner will also be erroneous, rendering his opinion of value, and then damages, incorrect. Based upon its review of Bittner's Curriculum Vitae, attached as Exhibit 1 to the Bittner Report, the Court also understands the Defendants' assertion that Bittner, as a CPA, is not qualified to attest to the reliability of the data and opinions contained in the Hall Reserve Report, which was prepared by Hall, a licensed Texas petroleum engineer. Given that Hall was not designated as an expert by the Trustee in connection with the upcoming trial, the Defendants are understandably concerned that the Trustee is attempting to get Hall's opinions into evidence through a non-qualified "mouthpiece," — i.e., Bittner. See Factory Mut. Ins. Co., 705 F.3d at 524-25; Loeffel, 387 F.Supp.2d at 808.
The Court now turns to the Defendants' reliability concern that is based upon Bittner's alleged decision to blindly follow the Trustee's counsel's instruction to reclassify two wells from PUD to PDP. Here, the Court similarly understands why the Defendants are concerned. If true — i.e., Bittner had no basis upon which to conclude that, with additional funding, the two wells would have been completed and become proved developed wells, his calculation of value in the Bittner Report would be overstated, resulting in an incorrect damage opinion.
Moreover, there is legal authority supporting the Defendants' concern in this regard. Specifically, "when an expert relies upon information given to him by a party or counsel, [he] must independently verify that information before utilizing it in [his] calculations." State Farm Fire &
With this background firmly in mind, the Court will turn to a discussion of what happened (or did not happen) at the Daubert Hearing. After the Defendants' opening arguments, the Trustee's counsel began his argument in support of the admissibility of the Bittner Report; however, Bittner was not present in the courtroom. After listening to the Trustee's counsel's argument for several minutes, the Court became concerned that the Trustee was not planning to introduce any evidence at the Daubert Hearing. Given the Court's understanding that the Trustee, as the proponent of the Bittner Report, must demonstrate by a preponderance of the evidence that Bittner's opinion of value and resulting damages are based upon an appropriate methodology and are therefore reliable, the Court asked the Trustee's counsel if he intended to introduce evidence in support of the admissibility of the Bittner Report. Counsel initially responded "I am not," because he believed that the Daubert Hearing would simply involve legal argument by counsel. Being concerned by this answer, the Court again asked if the Trustee's counsel had any evidence to present. The Trustee's counsel reiterated that he thought his legal argument in opposition to the Daubert Motions would suffice. After a third inquiry from the Court, the Trustee's counsel picked up on the fact that perhaps evidence was necessary and asked the Court to admit four documents into evidence (collectively, the "
Greenblatt's counsel objected to the admission of the Documentary Evidence. Specifically, counsel argued that (1) Dkt. Nos. 206 and 206-1 must be proven up by Greenblatt, who was not present at the Daubert Hearing; (2) Bittner is an expert under the Trustee's control and, under Rule 804, he must be unavailable in order for his deposition to be admissible; and (3) the Bittner Report could not be authenticated without Bitter taking the stand. In response, the Court once again inquired
Thereafter, the evidence was closed and closing arguments were made. The Court took the Daubert Motions under advisement and told the parties that it would attempt to issue a decision on the Daubert Motions as quickly as possible.
While preparing this Memorandum Opinion and Order over the weekend following the Friday afternoon Daubert Hearing, the Court realized that it had erred in refusing to admit the Documentary Evidence in light of Rule 104(a), which states that, in conducting its preliminary assessment of the admissibility of evidence, "the court is not bound by evidence rules, except those on privilege." Accordingly, the Court scheduled a telephonic status conference with the parties on the Monday morning following the Daubert Hearing (June 2) to discuss this issue with the parties. At the status conference, the Court (1) informed the parties of its concern that it should have admitted the Documentary Evidence at the Daubert Hearing; and (2) established a schedule for (i) the parties to file designations and counter-designations of the portions of the Bittner Report and the Bittner Deposition that establish or refute the threshold requirements for admissibility of the Bittner Report under Rules 702 and 703; and (ii) for the Defendants to respond to an unsolicited post-hearing supplement filed by the Trustee on Sunday evening (June 1) [Dkt. No. 157] (the "
On June 3, 2014, the Trustee filed his second post-hearing supplement [Dkt. No. 158] (the "
The arguments in the Trustee's First Post-Hearing Supplement can be broken down into four categories. First, counsel apologizes "for his apparent misunderstanding that the Court intended to conduct a full evidentiary hearing on the [Daubert ] Motions," but then argues that his misunderstanding is understandable given the Court's discretion on how it can handle such hearings and that "it bears noting that there is no clear cut `rule' that requires an `evidentiary' hearing on Daubert
The Court will address these arguments in turn, as well as the Defendants' response to these arguments [Dkt. No. 159] (the "
Hebbler, 2004 WL 414821, at *3. Similarly, in Padillas, the Third Circuit stated that "[w]e have long stressed the importance of in limine hearings under Rule 104(a) in making the reliability determination required under Rule 702 and Daubert." Padillas, 186 F.3d at 417. The Trustee's counsel also cites to U.S. v. John, 597 F.3d 263, 274 (5th Cir.2010), which simply held that a Daubert hearing was not necessary in the context of fingerprint evidence, and Murray v. Marina Dist. Dev. Co., 311 Fed.Appx. 521, 523 (3d Cir.2008), which held that it was not an abuse of discretion to forego a Daubert hearing when the record before the court, including the expert report, the expert's deposition testimony, and the parties' briefs, was sufficient to ascertain the expert's methodology and make a proper reliability determination under Daubert.
There is simply nothing in the Trustee's cited cases suggesting that this Court somehow abused its discretion in deciding to hold a formal hearing to consider the Daubert Motions, particularly in light of the questionable foundation of the Bittner Report, as discussed above. Indeed, under the Rules of Evidence, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786.
Second, "[w]hen expert testimony is challenged under Daubert, the burden of
As previously explained, the Documentary Evidence is properly before the Court in connection with the Daubert Hearing. But, the Documentary Evidence does nothing to establish the reliability of the Bitter Report, as the Trustee admits in his Second Post-Hearing Supplement. Notably, Bittner never testified in his deposition that the data and opinions from the Hall Reserve Report, that he used as the starting point for his expert analysis and opinion in the Bittner Report, is of a type reasonably relied on by experts in his field in forming an opinion such as the opinion he formed here. Nor does he make such a statement in the Bittner Report. As the Fifth Circuit explained in Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir.1998) (en banc),
Id. at 276 (citations omitted) (internal quotation marks omitted).
Here, the Trustee simply failed in his proof. Legitimate issues regarding the reliability of the foundation for the Bittner Report — i.e., the Hall Reserve Report — were raised in the Daubert Motions. It was the Trustee's burden to prove that data and opinions like those found in the Hall Reserve Report are of a type reasonably relied on by valuation experts in forming opinions about the value of oil and gas assets and the corresponding amount of damages in a breach of contract action such as this. Nothing in the Documentary Evidence addresses this threshold issue.
In addition, there was nothing in the Documentary Evidence that explained why it was appropriate for Bittner to conclude that, with additional funding, the two wells in question, which were classified as PUD wells in the Hall Reserve Report, would have been completed and become PDP wells. In fact, Bittner's deposition testimony suggests that there was no basis for this "conclusion" on his part, other than it was made at counsel's instruction. Specifically, Bittner testified as follows:
Bittner Deposition, 70:2 — 70:14.
Without more supporting Bittner's decision to reclassify these two wells, the Bittner Report is not reliable. And, of significance, when asked in his deposition about the effect of this reclassification on his opinion of value, he admitted that it had increased the value of the debtor's assets (and thus his damage calculation). But, when asked to quantify the amount of the increase, he testified that he "didn't know. [He] didn't calculate the value of that individually." Id. at 84:2 — 84:3.
Finally, when the Trustee's counsel asks in his Second Post-Hearing Supplement that his misunderstanding of what would occur at the Daubert Hearing not be held against the Trustee, counsel is asking for a "do-over" of the Daubert Hearing — i.e., by (1) attempting to supplement the evidentiary record after the close of evidence with the documents attached to, and referenced in, his two post-hearing supplements; and (2) suggesting that the Defendants can cross-examine Bittner about this at trial. Not surprisingly, the Defendants object to any "do-over." See Defendant's Post-Hearing Response at §§ G-F.
There will be no "do-over" here. The Daubert Motions were timely filed by the Defendants. With the agreement of the parties, the Court held the Daubert Hearing in advance of trial. The case law is clear that the proponent of the expert evidence — here the Trustee — had the burden of proof at the Daubert Hearing. The Court repeatedly asked the Trustee's counsel during the Daubert Hearing whether he intended to call Bittner (who maintains his office in Dallas) to testify at the Daubert Hearing. Counsel repeatedly replied in the negative and at no point requested a continuance of the hearing so that he could procure Bittner's attendance. The evidentiary record was closed following the offer of the Documentary Evidence. Closing arguments were made, after which the Court took the Daubert Motions under advisement.
Two days later, the Trustee's First Post-Hearing Supplement was filed and, two days after that, the Trustee's Second Post-Hearing Supplement was filed with additional documents attached. While the Court will not admit those additional documents into evidence, as the evidentiary record was closed by acknowledgement of counsel on May 30, 2014, even if the additional documents were admitted into evidence, the Trustee has still failed to carry his burden of proof under Rules 702 and 703, as those additional documents do not establish, among other things, that (1) Bittner took any steps to independently verify the contents or accuracy of the Hall Reserve Report that serves as the foundation for the Bittner report, see Factory Mut. Ins. Co., 705 F.3d at 524-25; or (2) Bittner had a reasonable basis to reclassify the two wells from PUD to PDP, see Lyman, 580 F.Supp.2d at 726. Although the Trustee argues that the articles attached to his Second Post-Hearing Supplement show that reserve reports are relied on by valuation experts, there is nothing in the proposed supplemental record to indicate that experts in the field of valuation "reasonably rely" on valuation reports without taking any steps to verify the accuracy of such reports (for example, by speaking with the expert who compiled the reserve report). See Factory Mut. Ins. Co., 705 F.3d at 524-25; Loeffel, 387 F.Supp.2d at
While the Trustee's post-hearing supplements were filed before the Court ruled on the Daubert Motions, and thus a motion to reconsider under Federal Rule of Civil Procedure 60(b) for "mistake, inadvertence, surprise, or excusable neglect" by the Trustee's counsel would be premature, the supplements read much like a Rule 60(b) motion. See FED.R.CIV.P. 60(b)(1) (as made applicable by FED. R. BANK. P. 9024). But, even Rule 60(b) would not permit a "do-over" here. While Rule 60(b)(1) allows relief for mistake, inadvertence, surprise, or excusable neglect, those terms are not wholly open-ended. Pryer v. U.S. Postal Serv., 769 F.2d 281, 286 (5th Cir.1985). "Gross carelessness is not enough. Ignorance of the rules is not enough, nor is ignorance of the law." Id. (citing to 11 Wright & Miller, Federal Practice and Procedure § 2864 at 214-15). Indeed, the Fifth Circuit has held that a court would abuse its discretion if it were to reconsider a matter under Rule 60(b)(1) when the reason asserted as justifying relief is one attributable solely to counsel's carelessness with or misapprehension of the law or the applicable rules of court. Pettle v. Bickham (In re Pettle), 410 F.3d 189, (5th Cir.2005); Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 (5th Cir. 1993). Further, "if the failure of the party to submit the evidentiary materials in question is attributable solely to the negligence or carelessness of that party's attorney, then it would be an abuse of discretion for the court to reopen the case and to consider the evidence." Knapp v. Dow Corning Corp., 941 F.2d 1336, 1338 (5th Cir.1991). "Where a party makes a considered choice ... he cannot be relieved of such a choice [under Rule 60(b)] because hindsight seems to indicate to him that, as it turns out[,] his decision was probably wrong." Pettle, 410 F.3d at 193 (citations omitted) (internal quotations omitted).
Given the Trustee's failure of proof at the Daubert Hearing,
