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Angelopoulos v. Keystone Orthopedic Specialists, S.C.

United States District Court, N.D. Illinois, Eastern Division

May 16, 2017

KEYSTONE ORTHOPEDIC SPECIALISTS, S.C., WACHN, LLC, and MARTIN R. HALL, M.D., Defendants. Objection No. Page of Report Inadmissible Conclusion


          Robert M. Dow, Jr. United States District Judge.

         Before the Court are Plaintiff's Daubert motion to bar certain expert testimony by Michael Pakter [314], Defendants' Daubert motion to bar certain expert testimony by Jay Sanders [309], Plaintiff's motions in limine [326] and [339], Defendants' motions in limine [317], and Defendants' motion to amend the final pretrial order to include proposed supplemental agreed voir dire questions and contested jury instructions [352]. For the reasons set forth below, Plaintiff's Daubert motion (Plaintiff's motion in limine No. 1) to bar expert testimony by Michael Pakter [314] is granted in part and denied in part. Defendants' Daubert motion to bar certain expert testimony by Jay Sanders [309] is denied.

         Plaintiff's motions in limine [326] are granted in part and denied in part: the Court grants Plaintiff's motions Nos. 3 and 4; the Court denies Plaintiff's motion No. 5; and the Court provisionally denies Plaintiff's motion No. 2. Plaintiff's motion in limine No. 7 [339] is granted. Defendants' motions in limine [317] are granted in part and denied in part: the Court grants Defendants' motions Nos. 6 and 8; the Court denies Defendants' motions Nos. 1, 5, 7, 10, and 11; the Court reserves its ruling on Defendants' motion No. 4, and the Court provisionally grants Defendants' motions Nos. 2 and 3.[1] Defendants' motion to amend the pretrial order [352] is granted, and the Court will consider the proposed voir dire questions and jury instructions that the parties submitted to the Court on May 12, 2017. The Court will issue rulings on Plaintiff's motion in limine No. 6 [326, at 10] and Defendants' motion in limine No. 12 [350] in a separate order. A final pretrial conference is set for May 18, 2017 at 10:00 a.m. This case remains set for a jury trial to commence on May 23, 2017.[2]

         I. Background

         Nicholas Angelopoulos (“Plaintiff”), an anesthesiologist, brings suit against his former business associate, Martin R. Hall (“Hall”), and the two businesses in which they were associates, Keystone Orthopedic Specialists, SC (“Keystone”), and Wachn, LLC (“WACHN”) (collectively, “Defendants”), for their alleged participation in a fraud to deprive Plaintiff of money to which he was entitled.[3] In his governing Third Amended Complaint [222], Plaintiff alleges claims against Defendants for fraudulently filing an information return in violation of 26 U.S.C. § 7432 (Count I); common law fraud (Count II); breach of fiduciary duty (Count III); breach of contract (Counts V and VI); and unjust enrichment (Count VII). Plaintiff also seeks a determination of the fair value of his distributional interest pursuant to 805 ILCS § 180/35-65 (Count Four). Defendants bring counterclaims against Plaintiff for breach of the purported WACHN Operating Agreement (Count I) and breach of contract (Count II). On September 16, 2016, the Court denied Defendants' motion for summary judgment, noting that many facts were in dispute. [303.]

         II. Daubert Motions [314] and [317]

         A. Legal Standard

         Federal Rule of Evidence 702[4] and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provide the legal framework for the admissibility of expert testimony. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine whether it has “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” so as to be deemed reliable enough to present to a jury. Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Rule 702 requires the district court judge to act as a gatekeeper to ensure that admitted expert testimony is relevant, reliable, and has a factual basis. Id. at 809; see also Daubert, 509 U.S. at 589. The Seventh Circuit has stressed that “the key to the gate is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at her opinion[.]” Textron, 807 F.3d at 834 (citation and internal quotation marks omitted) (alteration in original).

         To determine whether expert testimony is admissible, the district court must ascertain (1) whether the expert is qualified, (2) whether his methodology is scientifically reliable, and (3) whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011). “The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Daubert sets forth the following non-exhaustive factors for the district court to consider when assessing an expert's methodology: (1) whether the theory has been or is capable of being tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory's known or potential rate of error; and (4) the theory's level of acceptance within the relevant community. Daubert, 509 U.S. at 593-94; see also Bielskis, 663 F.3d at 893. However, the test for reliability is flexible, and “the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Co., 526 U.S. at 142; see also United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (noting that the Seventh Circuit “gives the [district] court great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable”). In addition, the touchstone of admissibility under Rule 702 is helpfulness to the jury. United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991). An expert's opinion is helpful only to the extent the expert draws on some special skill, knowledge, or experience to formulate that opinion. Id. “An expert witness is not permitted to parrot what some lay person has told him and testify that he believes the person was being truthful.” Goldberg v. 401 N. Wabash Venture LLC, 755 F.3d 456, 461 (7th Cir. 2014); see also Benson, 941 F.2d at 604 (“[T]he jury does not need an expert to tell it whom to believe, and the expert's ‘stamp of approval' on a particular witness' testimony may unduly influence the jury.”).

         B. Analysis

         Many of the liability and damages issues in this case center on the accounting records kept by Defendants Keystone and WACHN under the supervision of Defendant Hall. Plaintiff and Defendants have hired experts to assess whether Defendant Keystone's profit and loss statements and Form 1099-MISC contained false or fraudulent information and expenses, as Plaintiff contends, or instead accurately disclosed Defendant Keystone's income and expenses and calculated Plaintiff's share of the same, as Defendants contend. As the Court noted in its summary judgment opinion, the experts disagree on almost everything, including basic factual predicates, which accounting methodology is appropriate to use, whether certain of Defendant Keystone's expenses were properly disclosed to the physicians, whether those expenses were reasonable, and whether those expenses were properly attributed to Keystone rather than the other companies owned by Defendant Hall.

         1. Defendants' Challenge to Certain Testimony by Jay Sanders [309]

         Plaintiff retained as an expert Jay Sanders, an accountant with 30 years of experience providing accounting services to medical practices. Defendants move to bar three of Sanders's opinions: Opinion No. 5 in Sanders's expert report, which values Plaintiff's purported interest in WACHN; Opinion No. 6, which discusses WACHN's failure to remove Plaintiff from his personal guarantees of the WACHN loan; and Opinion No. 3, which states that Plaintiff was wrongly charged $599, 168 for excess overhead as compared to industry norms.

         a. Opinion No. 5: Valuation of Plaintiff's Interest in WACHN

         In his Opinion No. 5 “Damages Associated with WACHN, LLC, ” Plaintiff's expert Sanders valued Plaintiff's purported interest in WACHN using three different methods: (1) the initial equity approach; (2) the income approach; and (3) the cost approach. Defendants take issue with Sanders's use of the income approach, arguing that for purposes of this approach, Sanders impermissibly relied on information provided by Gary Fazio, Vice Chairman of CBRE Group, Inc. According to Sanders, the “income approach is the most commonly used method for appraising commercial and industrial real estate based on the net income the property produces to an investor.” [309-1 (Sanders's Expert Report), at 43.] He explained in his expert report that the income approach is computed by taking the Net Operating Income of a real estate asset (collected rent minus operating expenses) and dividing it by the capitalization rate, which is the rate of return a prospective investor is expecting given the current health of the economy, interest rates, geographical area, and other factors.

         Sanders stated in his report that Fazio told him that (1) the net rental rate of the building in which WACHN is located was $15 to $17 per square foot per year, (2) the most recent operating expenses, including common area maintenance and real estate taxes, were $13 per square foot per year, and (3) the capitalization rate for medical office buildings in the Chicago area was 6%, but that the capitalization rate should be increased by 1% because the building is located in Hazel Crest, and it should be further increased by another 1% because the WACHN space is a condominium unit and not a fee simple transaction. [309-1, at 44.] Using these figures and the income approach, Sanders concluded that the equity value of the building was just under $954, 000 and Plaintiff's purported interest in WACHN is worth $191, 000.

         First, Defendants argue that it is unclear what Fazio relied on to provide Sanders with figures for the net rental rate, recent operating expenses, and current capitalization rate for medical office buildings in the Chicago area. Defendants contend that Sanders improperly relied on Fazio's figures without doing any independent research or otherwise verifying the figures and neglected to consider differences between medical office suites. Second, Defendants argue that Sanders impermissibly opined that the income approach is the “most widely used and accepted valuation standard for commercial real estate, ” but that Sanders did not explain how he reached such an opinion and admitted that he himself has never done any real estate appraisal work and does not have a real estate appraisal license. Third, Defendants challenge Sanders's conclusion that the income method he used was “based on very recent information [from Fazio] regarding the prevailing rental rates, operating expenses, and capitalization rates for that building, locale and economic environment, ” without indicating what dates or years the rates are based on.

         The Court is not convinced by Defendants' arguments. An expert “may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed.R.Evid. 703. In fact, “it is common in technical fields for an expert to base an opinion in part on what a different expert believes[.]” Dura Automotive Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 309, 613 (7th Cir. 2002). For example, a physician, though not an expert in radiology, may rely on an x-ray in formulating a diagnosis. See Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 808 (N.D. Ill. 2005). Further, “it is apparent from the wording of Rule 703 that there is no general requirement that the other expert testify as well.” Dura, 285 F.3d at 613; see also Walker v. Soo Line R. Co., 208 F.3d 581, 589 (7th Cir. 2000) (explaining that “[m]edical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions” and that “courts frequently have pointed to an expert's reliance on the reports of others as an indication that their testimony is reliable”).

         However, expert testimony relying on the opinions of other should be rejected if the testifying expert's opinion is too speculative or if the underlying basis is faulty. Walker, 208 F.3d at 588. Further, “while Rule 703 was intended to liberalize the rules relating to expert testimony, it was not intended to abolish the hearsay rule.” Loeffel Steel Prods., Inc., 387 F.Supp.2d at 808. Thus, an expert is “not permitted to be the mouthpiece of [an expert] in a different specialty, ” Dura Automotive Sys. of Indiana, Inc., 285 F.3d 309, or to vouch for the truth of what another expert told him, Loeffel Steel Prods., Inc., 387 F.Supp.2d at 808. Under Rule 703, an expert may rely on hearsay in formulating his opinion, but the underlying hearsay is not admissible for the truth of the matter asserted. Loeffel Steel Prods., Inc., 387 F.Supp.2d 7at 808.

         The Court concludes that Sanders permissibly relied on figures provided by Fazio, Vice Chairman of CBRE, one of the largest commercial real estate brokers in the United States, who has participated in more than 3, 000 lease transactions and whose clients include hospitals and medical staff members. See Walker, 208 F.3d at 589 (holding that expert physician's opinion was not rendered unreliable by her partial reliance on another doctor's work and explaining that “[t]o the degree that she might have relied on faulty information, the matter certainly could be explored on cross-examination”); Main St. Mortg., Inc. v. Main St. Bancorp., Inc., 158 F.Supp.2d 510, 516 (E.D. Pa. 2001) (holding that expert Certified Public Accountant's use of capitalization rate that defendant objected to did not destroy the reliability of expert's opinions that that defendant was free to challenge expert's method for calculating lost profits through cross examination and through its own damages expert). Further, Plaintiff asserts in his response that Defendant Hall and certain other witnesses affiliated with Keystone, including Renee Breese, may be able to testify to the rental income and capitalization rate of the WACHN building. Plaintiff also asserts that he will present at trial, separate from Fazio's data, evidence about WACHN's operating expenses and the rental income paid to WACHN through Keystone. If this evidence is indeed presented at trial, it may serve to either confirm or refute the figures used by Sanders for his valuation.

         Sanders may use the figures provided by Fazio to offer an opinion within Sanders's domain of expertise in valuation-that is, he can testify that assuming a net rental income of $16 per square foot, operating expenses of $13 per square foot, and a capitalization rate of 8%, the equity value of the building would be just under $954, 000 and Plaintiff's share would be worth $191, 000. However, he cannot vouch for the accuracy of Fazio's figures for the net rental rate of the building, the most recent operating expenses, and the capitalization rate for medical office buildings in the Chicago area. In other words, Sanders cannot act as Fazio's spokesman. See In re James Wilson Assocs., 965 F.2d 160, 172-173 (7th Cir. 1992) (explaining that the expert architect could use what a consulting engineer told him to offer an opinion within the architect's domain of expertise, but he could not testify for the purpose of vouching for the truth of what the engineer had told him); Dura Automotive Sys. of Indiana, Inc., 285 F.3d at 613 (if affidavits of experts had timely been filed, expert hydrogeologist could have testified that well field was contaminated by volatile organic compounds and that if defendant's plastics plant was within the well field's capture zone, some of the contaminants may have come from that plant; however, hydrogeologist could not testify that plant was actually within well field's capture zone, as he was not an expert in mathematical models of groundwater flow and modeling on which he relied had been done by other non-testifying experts).

         Additionally, to the extent that Defendants challenge Sanders's qualifications on the basis that he has not done real estate appraisal work and does not have a real estate appraisal license, this argument fails because Sanders is a Certified Public Accountant and a Certified Valuation Analyst. As an expert in business valuation, he is sufficiently qualified to offer an opinion as to the valuation of the WACHN business. See Fed.R.Evid. 702 (an expert may be qualified “by knowledge, skill, experience, training, or education”); Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F.Supp.2d 786, 794 (N.D. Ill. 2000) (certified public accountant who specialized in business valuation was qualified to testify as an expert on the issue of damages in breach of contract suit). Sanders's admitted lack of specialization in real estate appraisal work is not a disqualifying factor; rather, it is yet another subject for cross-examination. See Walker, 208 F.3d at 589 (holding that district court abused its discretion in excluding expert testimony that employee had suffered post-traumatic stress disorder and explaining that although expert physician was not a psychiatrist or psychologist, she was qualified as a physician); Loeffel Steel Prod., Inc., 387 F.Supp.2d at 802 (business appraiser's lack of specific experience with particular machines did not disqualify him from being considered an expert to offer opinion on economic loss).

         Finally, Defendants challenge for the first time in their reply brief Sanders's use of the initial equity approach and the cost approach. However, arguments raised for the first time in a reply brief are waived. See United States v. Hughes, 970 F.2d 227, 235, n.6 (7th Cir. 1992) (arguments raised for the first time in a reply brief are waived); Forsythe v. Rosen Med. Grp., LLC, 2015 WL 127921, at *5 (N.D. Ill. Jan. 8, 2015) (denying motion in limine and explaining that argument raised for the first time in reply brief and not argued in initial motion was waived). Further, even if the Court were to consider these arguments on the merits, they are underdeveloped and do not cite any authority. Therefore, Defendants' motion to bar Plaintiff's expert Sanders's Opinion No. 5 “Damages Associated with WACHN, LLC” is denied.

         b. Opinion No. 6: WACHN Guarantee

         In Defendants' Daubert motion [309] and motion in limine No. 11 [317, at 12], Defendants seek to bar Opinion No. 6 of Plaintiff's expert Sanders on the ground that he uses an unreliable methodology. Defendants contend that Sanders' Opinion No. 6 attributes Great Lakes Bank's refusal to remove Plaintiff as a personal guarantor of the WACHN $1.42 million loan balance to the actions of Defendant Hall. To reach his opinion, Sanders relies on (1) his review of two commercial guarantees signed by Plaintiff with Great Lakes Bank, (2) the bank statements of Great Lakes Bank regarding the status of the loans as of January 2, 2014; and (3) his own “involvement with other medical practices.” Defendants argue that Sanders premised his opinion on the fact that Plaintiff dissociated from WACHN but that Sanders was in fact unsure if Plaintiff had actually dissociated.

         Defendants' motion to bar Sanders's Opinion No. 6 is denied. The Court agrees with Plaintiff that Defendants misapprehend Sanders's opinion. Sanders did not opine that Defendant Hall “was to blame for Plaintiff not being removed from his personal WACHN guarantees.” [317, at 12.] Rather, Sanders stated his opinion that (1) “a dissociated physician who is no longer entitled to the income or ownership of a medical building partnership should be released from all liabilities associated with the investments, ” (2) that “WACHN should have procured a release of Plaintiff's personal guaranty of the WACHN loan, ” and (3) “the damage to [Plaintiff] is the full extent of the available credit on the loan.” Additionally, Defendants have not shown that Sanders's reliance on his review of commercial guarantees and bank statements of Great Lakes Bank amounts to improper methodology. See Fed. R. Evid 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”); Artunduaga v. Univ. of Chicago Med. Ctr., 2016 WL 7384432, at *5 (N.D. Ill.Dec. 21, 2016) (“[I]t is proper for counsel to furnish factual assumptions to experts as long as the factual assumptions are supported by the record.”). Finally, Defendants' argument for excluding Sanders' testimony on the guarantee because he was unsure if Plaintiff had actually dissociated from WACHN fails, as this goes to weight and not admissibility.

         c. Opinion No. 3: Excess Overhead Charges

         In Defendants' motion No. 11, they challenge Sanders's opinion No. 3 that Plaintiff was wrongly charged $599, 168 for excess overhead, as compared to industry norms. Defendants argue that Sanders' reliance on Medical Group Management Association (“MGMA”) statistics for this opinion was problematic for three reasons: (1) Sanders compared the average expenses for orthopedic surgeons in the MGMA Physicians Compensation and Production Survey for Single Specialty Practices 2008 Report to the actual expenses of Keystone from 2004 to 2007, yet Plaintiff was not an orthopedic surgeon, and pain management specialists like Plaintiff generate less revenue than orthopedic surgeons; (2) the MGMA data Sanders used was the national mean for all single-specialty orthopedic surgery practice, and the national mean will be different from an orthopedic surgery practice in Illinois; (3) the MGMA recommends using caution in interpreting its data because the data may not be representative of all providers in medical practices. Additionally, Defendants take issue with the fact that Sanders conceded that a deviation from an industry norm is not per se evidence of wrongdoing or problems with the accounting systems.

         Defendants' motion to bar Sanders's Opinion No. 3 is denied. Defendants have not shown that Sanders's method in calculating Plaintiff's excess overhead charges was unreliable. Rather, Defendants merely challenge the accuracy of the statistics on which Sanders relied. Experts “may rely properly on a wide variety of sources, ” Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020 (7th Cir. 2000), and may rely on “experimental, statistical, or other scientific data generated by others in the field, ” Abbott Labs. v. Sandoz, Inc., 743 F.Supp.2d 762, 793-94 (N.D. Ill. 2010). As the Seventh Circuit has stressed, the focus of a Daubert inquiry is “not the ultimate correctness of the expert's conclusions, ” but rather “the soundness and care with which the expert arrived at her opinion[.]” Textron, 807 F.3d at 834 (citation and internal quotation marks omitted) (alteration in original). To the extent that Defendants disagree with the statistics used by Sanders and the outcome of his calculation, these arguments go to the weight of Sanders's testimony, and not admissibility. Thus, Defendants are free to explore these issues on cross-examination at trial. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (“The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact.”).

         2. Plaintiff's Challenge to Certain Testimony of Michael Pakter [314]

         Plaintiff seeks to preclude the testimony of Defendants' expert, Michael Pakter. To begin with, Plaintiff argues that much of Pakter's testimony will not provide specialized knowledge that would assist the jury in understanding the facts at issue, but rather would simply repeat the factual contentions of Defendant Hall and his associates. According to Plaintiff, Pakter's testimony purports to resolve issues of credibility of competing witness testimony, which invades the province of the jury and does not involve any expertise. In addition, Plaintiff contends that some of Pakter's testimony purports to advance legal opinions that would impinge upon the Court's role as the sole source of the relevant law in this case.

         The Court agrees with Plaintiff that many of Pakter's proffered opinions merely parrot what Defendants have told him about disputed facts or offer opinions that state legal conclusions. As explained above, an opinion witness cannot simply vouch for the testimony of a fact witness. Nor can an opinion witness interview various fact witnesses, sift through their statements, and then purport to tell the jury what those witnesses meant, understood, believed, or agreed to. And the Seventh Circuit has explained that in considering whether an expert witness's testimony will improperly invade the judge's role as the sole source of the relevant law at a trial, courts and parties must recognize the difference between “stating a legal conclusion” (which is not permitted) and “providing concrete information against which to measure abstract legal concepts” (which is permitted). United States v. Blount, 502 F.3d 674, 680 (7th Cir. 2007); Bone Care Intern., LLC v. Pentech Pharma., Inc., 2010 WL 3928598, at *14 (N.D. Ill. Oct. 1, 2010). As set out below in detail, in numerous instances the opinions expressed in Pakter's report, if repeated in court, would infringe upon the role of the jury, the Court, or both.

         However, some of the challenged portions of Pakter's report properly provide the factual assumptions on which Pakter relies for his expert opinions and thus provide context for presenting those opinions for the jury's consideration. The Court sets out below its rulings on the specific challenges:

• Plaintiffs objection No. 1 (page 16) is overruled.[5] Plaintiff takes issue with part of Pakter's rebuttal of Sanders Opinion No. 1 in which Pakter states: “The revenues and expenses of the MDSC were purposely and deliberately disclosed to [Plaintiff] and other physicians when they were included in the Bucket Reports. * * * Based on my Interviews, [Plaintiff] and other physicians routinely reviewed the Bucket Reports and requested adjustments, which they were then made with revised Bucket Reports provided.” However, this statement provides part of the factual assumptions on which Pakter relied for his conclusion that followed: “Consequently, when presented quarterly to Hall, [Plaintiff] and others [the Bucket Reports] disclosed reliably, openly and completely all the revenues and expenses of the ‘consolidated entity' for that financial quarter.” These statements provide context for Pakter's explanation of his opinion that “Sanders elected to call certain deliberate and necessary differences between QuickBooks and the Bucket Reports errors when they were purposefully only reconciling items.” [314 Exhibit A (Pakter's Expert Report), at 13.]
• Plaintiffs objection No. 2 (page 17) is overruled. Plaintiff challenges Pakter's statement that “Hall represented to me that [Plaintiff] was provided with all of the information and/or documentation he requested.” However, this statement supports Pakter's opinion that “Sanders failed to acknowledge that [Plaintiff] and others were provided access to the accounting system and proper summaries thereof, ” [314 Exhibit A, at 13]. Further, it was in response to Sanders's opinion that “[t]here was also a lack of transparency in the accounting in that the other physicians were not provided backup for the items in the Bucket Report and did not have access to this information as the majority of Keystone's financial records and invoices were maintained at [Defendant Hall's] personal residence rather than at the Keystone's offices.” [301-1 (Sanders's Expert Report), at 16.] As noted above, the experts in this case may only testify as to the facts on which they relied in formulating their opinions; they may not vouch for the accuracy of those facts. Presumably, each side will call fact witnesses (including Defendant Hall), who will testify to (and be cross-examined on) these underlying facts.
• Plaintiffs objection No. 3 (page 18) is sustained. These statements do no more than parrot facts that Defendants provided to Pakter. Additionally, Pakter's conclusion that “there are no assertions that [Plaintiff] was not credited with his revenues and billings” is improper, as that is an issue for the jury to decide at trial based on the testimony of the fact witnesses.
• Plaintiffs objection No. 4 (page 20) is sustained. These statements simply parrot what Pakter was told in interviews and do not apply any expertise. See Benson, 941 F.2d at 604-05 (concluding that the district court abused its discretion in admitting testimony of expert who “did not give helpful expert testimony that cast another witness's ...

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