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Broom, Clarkson, Lanphier & Yamamoto v. Kountze

United States District Court, D. Nebraska

January 13, 2017

BROOM, CLARKSON, LANPHIER & YAMAMOTO, Plaintiff,
v.
EDWARD KOUNTZE, individually and as Personal Representative of the Estate of Denman Kountze, Jr. in Collier County, Florida, Defendant.

          ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on dueling Motions in Limine filed by plaintiff Broom, Clarkson, Lanphier & Yamamoto (“Broom Clarkson”) (Filing No. 136) and defendant Edward Kountze (“Kountze”) (Filing No. 139). Largely raising the same basic arguments and counterarguments, each party attempts to exclude the opinions and testimony of the other's expert while preserving that of their own. For the reasons below, both Motions in Limine are denied.

         I. BACKGROUND

         This case arises from a dispute over legal fees. Broom Clarkson, a Nebraska law firm, alleges Kountze retained a member of the firm to provide legal fees but has refused to pay in full for services rendered. Broom Clarkson seeks $376, 601.76 in unpaid legal fees. Kountze counters that the firm “overbilled for legal services and performed work that was unnecessary, excessive, and unreasonable.” The parties have each retained an expert to support their respective positions. The question before the Court is whether to exclude either of those expert witnesses.

         II. DISCUSSION

         A. Legal Standard

         The admissibility of expert testimony in federal court is primarily governed by Federal Rules of Evidence 702 and 703. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993). Under Rule 702,

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.

Rule 703 permits an expert to “rely on otherwise inadmissible hearsay evidence in forming his opinion if the facts and data upon which he relies are of a type reasonably relied upon by experts in his field.” Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir. 1997). If such facts and data are otherwise inadmissible, “the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed.R.Evid. 703.

         The party offering expert testimony must prove by a preponderance of the evidence that the “witness is qualified” and the “evidence is admissible.” Fed.R.Evid. 104(a); Daubert, 509 U.S. at 592 n.10. The Court “acts as a ‘gatekeeper, ' admitting expert testimony only if it is both relevant and reliable.” United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003). The Court must not “invade the province of the jury, ...


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