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White v. Richert

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

August 28, 2019

ANNA M. WHITE, Plaintiff,
v.
ELIZABETH K. RICHERT, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          Sidney Schenkier Magistrate Judge

         At the center of this case is a family dispute over the proceeds of the Robert L. Richert Trust (the "Robert Trust")-a trust created by the deceased brother and uncle of the plaintiff and defendant, respectively-and which version of the Robert Trust is indeed the genuine version. To that end, each party engaged a forensic document examiner to opine on the authenticity of portions of what has generally been referred to throughout this matter as the Robert Trust Version C (doc. # 173, Am. Compl., Ex. C: Robert Trust Version C).

         A bench trial is scheduled to begin on September 9, 2019. The parties agreed by stipulation to present their written expert witness reports at trial in lieu of live testimony (doc. # 296). Now, each party has moved to strike the other party's handwriting expert's report. Before the Court is plaintiffs motion to strike the expert report of Thomas W.Vastrick (doc. #314: Pl.'s Mot.), defendant's motion to strike the expert report of Robin D. Williams (doc. #315: Def.'s Mot.) and both parties' responses to the motions (doc. # 317: Pl.'s Resp.; doc. #318: Def.'s Resp.). For the reasons set forth below, we grant in part and deny in part plaintiffs motion to strike and deny defendant's motion to strike.

         I.

         For the relevant background, we refer in large part to our previous memorandum opinion and order granting defendant summary judgment as to Count I of plaintiff s Amended Complaint and denying summary judgment as to Count II of the Amended Complaint. See White v. Richert, No. 15 C 8185, 2018 WL 4101512 (N.D. Ill. Aug. 28, 2018). In June 2008, Robert Richert (plaintiffs brother and defendant's uncle) executed the Robert Trust and put the title to his residence in Arizona into the trust. White, 2018 WL 4101512, at *2. Discovery in the case revealed three versions of the Robert Trust, which we will call versions A, B and C. Id.[2] Versions A and B were produced by a third party, Fidelity, in response to a subpoena from plaintiff. Id. at *7. Version C was produced by defendant. Id. When deposed, defendant testified that the original Version C was stolen by unknown persons prior to the filing of this lawsuit and then, shortly before her deposition, a copy of Version C was placed in her mailbox by some also unknown person. Id.

         In both Versions A and B of the Robert Trust, Paragraph 5.4.1 states that:

If the Settlor's residence is part of the trust estate or is owned by the Settlor at the time of his death, then the Settlor's residence, personal effects, household goods, automobile(s), and any interest he may have in any insurance policies thereon, shall be distributed to Elizabeth K. Richert, the Settlor's niece. If at the time of the Settlor's death, the Settlor's residence is not part of the trust estate or is not owned by the Settlor, then forty-seven percent (47%) of the trust estate shall be distributed to Elizabeth K. Richert, the Settlor's niece.

Id. at *3 (emphasis added).[3] By contrast, in Version C of the Robert Trust, Paragraph 5.4.1 states that:

If the Settlor's residence is part of the trust estate or is owned by the Settlor at the time of his death, then the Settlor's residence, personal effects, household goods, automobile(s), and any interest he may have in any insurance policies thereon, shall be distributed to Elizabeth K. Richert, the Settlor's niece. In addition to the Settlor's residence, forty-seven percent (47%) of the trust estate shall be distributed to Elizabeth K. Richert, the Settlor's niece.

Id. (emphasis added).

         It is undisputed that when Mr. Richert died on November 9, 2009, his Arizona residence was part of the Robert Trust. White, 2018 WL 4101512, at *3. That means that under any version of the Robert Trust, Mr. Richert's "residence, personal effects, household goods, automobile(s), and any interest he may have in any insurance policies thereon" were to be distributed to defendant. See id.

         This is where the differences between paragraph 5.4.1 in Versions A and B and paragraph 5.4.1 in Version C come into play. Under Versions A and B of the Robert Trust, if Mr. Richert's residence was not part of the trust estate or owned by him when he died, only then was defendant entitled to 47 percent of the trust estate. But as already noted, the residence was part of the trust estate; thus, according to paragraph 5.4.1 of Versions A and B, the 47 percent estate distribution to defendant was not triggered. Under paragraph 5.4.1 of Version C, though, 47 percent of the trust estate is to be distributed to defendant regardless of whether Mr. Richert's residence was part of the trust estate. In short, pursuant to paragraph 5.4.1 of Version C, defendant is entitled to 47 percent of Mr. Richert's trust estate; under paragraph 5.4.1 of Versions A and B, she is not. See also White, 2018 WL 4101512, at *8.

         Plaintiffs sole remaining count against defendant in this case (Count II) arises out of these differences (see doc. #173: Am. Compl.). Plaintiff alleges that defendant breached her fiduciary duty as trustee of the Robert Trust "by creating a 'counterfeit' version of the Robert Trust (Version C), which she allegedly 'altered and forged' to 'aggrandize and unlawfully take 47% of the trust proceeds she was not entitled to.'" White, 2018 WL 4101512, at *6 (quoting Am. Compl., ¶¶ 27- 28). Plaintiff engaged Mr. Williams and defendant engaged Mr. Vastrick as forensic document examiners to opine about certain handwriting on the different versions of the trust.

         II.

         Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) govern the admissibility of expert testimony including when, as here, jurisdiction rests on diversity. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 778 (7th Cir. 2017). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         "In Daubert, the Supreme Court interpreted Rule 702 to require the district court to act as an evidentiary gatekeeper, ensuring that an expert's testimony rests on a reliable foundation and is relevant to the task at hand." Gopalratnam, 877 F.3d at 778 (internal quotations omitted). In performing our gatekeeping role under Rule 702 and Daubert, we must "engage in a three-step analysis before admitting expert testimony." Id. at 779 (internal quotations omitted). Specifically, we "must evaluate: (1) the proffered expert's qualifications', (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony." Id. (emphases in original). As the gatekeeper, we have '"broad latitude' to determine how to evaluate expert testimony," United States v. Hill, 818 F.3d 289, 297 (7th Cir. 2016) (citation omitted), particularly where "the usual concerns of [Rule 702]-keeping unreliable expert testimony from the jury-are not present," as is the case in a bench trial. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010). Indeed, for a bench trial, our gatekeeping role is "necessarily different"; because we are both the gatekeeper and factfinder, "the need to make such decisions prior to hearing the testimony is lessened." In re Salem, 465 F.3d 767, 777 (7th Cir. 2006), disapproved of on other grounds by In re Anderson, 917 F.3d 566, 569-71 (7th Cir. 2019).

         "[T]he party seeking to introduce the expert witness testimony bears the burden of demonstrating that the expert witness testimony satisfies the [Daubert] standard by a preponderance of the evidence." Gopalratnam, 877 F.3d at 782 (second alteration in original and internal quotations omitted). However, "rejection of expert testimony is the exception rather than the rule." Fed.R.Evid. 702 advisory committee's note to 2000 amendment.

         A.

         Neither party develops an argument challenging Mr. Vastrick's or Mr. Williams's qualifications. Therefore, the first aspect of our gatekeeper role (evaluating proffered expert's qualifications) is not at issue. Regardless, the materials submitted with the expert reports show that both Mr. Vastrick's and Mr. Williams's ...


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