United States District Court, D. Nebraska
F. Rossiter, Jr. United States District Judge
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
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.
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
(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.
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