The opinion of the court was delivered by: Hon. Amy J. St. Eve
SUPPLEMENTAL AUTHORITY SUBMITTED IN SUPPORT OF BP AMOCO CHEMICAL COMPANY'S RENEWED MOTION TO EXCLUDE THE OPINIONS OF JEFFREY BALIBAN
BP Amoco Chemical Company respectfully submits the following supplemental authority in support of BP Amoco Chemical Company's Renewed Motion To Exclude The Opinions Of Jeffrey Baliban (Dkt. 816):
1. As to Flint Hills' failure to introduce into evidence Mr. Baliban's damages model and thereby provide a proper methodological foundation for Mr. Baliban's opinions (see Dkt. 816 at 5-7), BP Amoco respectfully directs the Court to the following cases:
* Elcock v. Kmart Corp., 233 F.3d 734,754-56 (3d Cir. 2000) (reversing jury verdict where expert's "economic damages model relied on several empirical assumptions that were not supported by the record," supporting data was not made part of the trial record, and the expert provided no basis for jury to adjust his damages calculation to account for erroneous assumptions) (copy attached as Ex. 1);
* Fuesting v. Zimmer, Inc., 421 F.3d 528, 536 (7th Cir. 2005) (Williams, J.) (reversing jury verdict based on conclusory expert opinions allegedly based on "basic polymer science" because the expert "did not bridge the gap between these basic principles and his complex conclusion" by describing methodology and analyses by which general principles were applied to particular circumstances of case at issue) (copy attached as Ex. 2), vacated in unrelated part, 448 F.3d 936 (7th Cir. 2006);
* Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1087 (7th Cir. 1999) (Easterbrook, J.) (affirming district court's exclusion of forensic vocational expert after offer of proof at trial, where expert "gave a conclusion, but no more," and quoting with approval district court's finding that "'providing only an ultimate conclusion with no analysis is meaningless'") (copy attached as Ex. 3);
* In re Prempro Prods. Liability Litig., 554 F. Supp. 2d 871, 887 (E.D. Ark. 2008) ("Since Dr. Parisian testified as to the bottom line without any explanation, failed to provide expert analysis, . testified in areas beyond her expertise, and invaded areas that required no expert testimony, most of Dr. Parisian's punitive damages testimony should have been excluded.") (reversing jury verdict awarding punitive damages on basis of testimony court subsequently determined should have been excluded) (copy attached as Ex. 4);
* ID Security Sys. Canada, Inc. v. Checkpoint Sys., Inc., 249 F. Supp. 2d 622, 696 (E.D. Pa. 2003) ("Given Dr. Kursh's reliance on [plaintiff's president's] projections against the background of only generalized research into the EAS systems market and Laserfuse technology and production, the court concludes that Dr. Kursh's testimony as to future lost Laserfuse profits should not have been admitted at the Daubert stage of these proceedings, nor should it have been placed before the jury at trial, even if the arithmetic model used accurately predicts future lost profits in the typical case.") (vacating portion of jury award attributable to future lost profits damages) (copy attached as Ex. 5);
* cf. McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 658 (7th Cir. 1998) (Easterbrook, J.) (affirming award of summary judgment where expert affidavit failed to provide any reasoning or data supporting opinions; "[n]aked opinions cannot stave off summary judgment) (copy attached as Ex. 6);
* Navarro v. Fuji Heavy Indus., Ltd., 117 F.3d 1027, 1031 (7th Cir. 1997) (Posner, C.J.) ("[A] conclusion without any support is not one based on expert knowledge and entitled to the dignity of evidence.") (affirming award of summary judgment) (copy attached as Ex. 7);
* Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989) (Easterbrook, J.) (affirming award of summary judgment and finding that conclusory economist affidavit could not create factual dispute; "[a]dmissibility does not imply utility," as "Professor Bryan presented nothing but conclusions - no facts, no hint of an inferential process, no discussion of hypotheses considered and rejected") (copy attached as Ex. 8); and
* Plascencia v. City of St. George, No. 2:07-CV-2 TS, 2009 WL 562263, at *3 (D. Utah Mar. 3, 2009) ("Expert testimony is unhelpful to the jury if the expert is merely telling the jury what result to reach, unless the expert explains the basis for his opinions in sufficient detail to permit the jury to independently evaluate his conclusions"; excluding expert opinions pursuant to motion in limine because the expert "has failed to identify how he arrived at his conclusions, making it impossible for the jury to independently evaluate those conclusion.") (copy attached as Ex. 9).
2. As to Flint Hills' failure to introduce into evidence a sufficient factual foundation for the effective capacities Mr. Baliban relied on to calculate damages (see Dkt. 816 at 7-8), and his speculative assumptions respecting a potential contingent Eastman transaction (see id. at 2-4), ...