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Top Ridge Investments, LLC v. Anichini, Inc.

United States District Court, D. Vermont

November 30, 2017

TOP RIDGE INVESTMENTS, LLC, Plaintiff,
v.
ANICHINI, INC., ANICHINI HOSPITALITY, INC., ANICHINI RETAIL, INC., and SUSAN DOLLENMAIER, Defendants, and ROYAL HERITAGE HOUSE, LLC and JEFFREY TAUBER, Defendants-in-Counterclaim.

          DECISION ON MOTION IN LIMINE TO PRECLUDE TESTIMONY AND REPORT OF DEFENDANTS' PUTATIVE EXPERT TERRY DORMAN (DOC. 108)

          Geoffrey W. Crawford United States District Court

         On October 23, 2017, defendants Anichini, Inc., et al. (collectively "Anichini") disclosed Terry Dorman as an expert witness on the issue of economic damages sustained by defendants as a result of claimed misconduct by plaintiff Top Ridge, Inc. and counterclaim-defendants Jeffrey Tauber and Royal Heritage House, LLC (collectively "Top Ridge").

         There is no claim that the disclosure was untimely. It follows the completion of fact depositions in October 2017. The initial disclosure was supplemented by an additional report from Mr. Dorman on November 28, 2017.

         Top Ridge seeks to exclude Mr. Dorman's expert testimony on the ground that he has no professional qualifications in the area of economic damages, and that his report is unreliable because it is not based upon a recognized methodology. The court agrees and excludes Mr. Dorman's testimony as an expert. There are, however, areas in which Mr. Dorman may testify as a fact witness, and this decision seeks to clarify the scope of permissible testimony.

         Legal Standard

         The admissibility of expert testimony is governed by Fed.R.Evid. 702, which requires a foundational showing that:

• the witness has relevant scientific, technical, or other specialized knowledge;
• the testimony is based on sufficient facts or data;
• the testimony is the product of reliable principles and methods; and
• the expert has reliably applies the principles and methods to the facts.

         In performing its function as gatekeeper, the court must make a preliminary inquiry into these issues before the jury may hear the testimony. See In re Pfizer Inc. Securities Litigation, 819 F.3d 642, 658 (2d Cir. 2016); see generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993).

         1. Mr. Dorman's Qualifications

         Mr. Dorman has served as a consultant to Anichini in connection with the proposed acquisition of Anichini by Top Ridge. After graduating from high school in 1974, he founded his own business which he sold in 1987. This business specialized in computer graphics, touch screens and video game controllers. In 1987 he founded a consulting firm specializing in restructuring financially troubled companies. He continues to work in this field. He has no formal education in business, economics, or any other discipline related to economic damages. There is no indication in his biographical disclosure that he has ever published an article, taught a class, obtained a degree, or in any other way demonstrated in a public setting that he has technical or other specialized knowledge. Instead, he has offered a list of companies he has rehabilitated through negotiations with lenders, customers, unions, regulators, and other parties. None of these companies appear to have been in the textile trade.

         2. Facts Relied ...


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