United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on Top Rank's motion in limine
for an order excluding the expert testimony of Leon R.
Margules. Filing 99. Top Rank's motion will be denied.
discussed in more depth in the accompanying Memorandum and
Order on Top Rank's motion for summary judgment, this
litigation concerns an "Agreement and Release"
entered into by Top Rank and TKO Boxing Promotions, TKO's
rights under which have been assigned to Mittendorf. Filing
117-2. Under the Agreement and Release, Top Rank was required
to pay Mittendorf a fee equal to eight percent of boxer
Terence "Bud" Crawford's purse when Top Rank
promoted one of Crawford's title defense bouts. Filing
117-2 at 2.
the issues the parties disagree about is whether
Crawford's "unification bouts" against Viktor
Postol and Julius Indongo were "title defenses"
within the meaning of the Agreement and Release.
Seefiling 52 at 4-6; filing 53 at 3-4; filing 100 at
1-2. The parties also disagree about whether the gate
participation bonuses paid to Crawford for bouts in Omaha
under his 2014 promotional rights agreement should be
considered part of his "purse" for purposes of
calculating the fee payable to Mittendorf under the Agreement
and Release. Seefiling 116 at 5-6.
is a lawyer and an experienced boxing promoter. Filing 102 at
3-4. Based on that experience, Margules opines that the
recognized definition of a title defense bout, in the
business of boxing, is "a bout held between one champion
and another fighter (challenger), for a sanctioning
body's belt and recognition as its champion in a
particular weight class." Filing 102 at 5. According to
Margules, the Postol and Indongo bouts were "title
defense" bouts because Crawford was defending his
existing title in each bout and Top Rank paid the sanctioning
fees for the bouts. Filing 102 at 5-6. Margules also opines
that compensation based on gate receipts is part of
Crawford's "purse" under the promotional rights
agreement. Filing 102 at 6.
Rank argues that Margules' opinions are inadmissible
pursuant to Fed.R.Evid. 702. An expert witness may give his or
her opinion if it will help the trier of fact understand the
evidence or determine a fact in issue. Rule 702. Such
testimony is not objectionable merely because it embraces an
ultimate issue to be decided by the trier of fact.
Fed.R.Evid. 704(a). A trial court may, however, exclude
opinion testimony if it is so couched in legal conclusions
that it supplies the fact finder with no information other
than what the witness believes the verdict should be.
Williams v. Wal-Mart Stores, Inc., 922 F.2d 1357,
1360 (8th Cir. 1990).
Rank begins by arguing that Margules'
"'expert' testimony amounts to nothing more than
his opinion on how this Court should interpret the contracts
that are at issue in this dispute." Filing 100 at 2. Top
Rank argues that the "central focus" of
Margules' report "is his application of those
definitions to the facts of this case in order to reach the
ultimate conclusions that Terence Crawford's bouts with
Viktor Postol and Julius Indongo constituted 'Title
Defenses' under the Agreement and Release . . . ."
Filing 121 at 2. Top Rank asserts that his opinion testimony
is inadmissible because it "invades the province of the
Court." Filing 100 at 2.
Court recognizes that expert testimony on legal matters is
not admissible. Southern Pine Helicopters, Inc. v.
Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th
Cir. 2003). But courts have frequently recognized the value
of expert testimony defining terms of a technical nature and
testifying as to whether such terms have acquired a
well-recognized meaning in the business or industry.
Nucor Corp. v. Nebraska Pub. Power Dist., 891 F.2d
1343, 1350 (8th Cir. 1989); accord Lakeside Feeders, Inc.
v. Producers Livestock Mktg. Ass'n, 666 F.3d 1099,
1111 (8th Cir. 2012).
expert testimony as to the industry meaning of technical
words in a contract is admissible. Arkla Expl. Co. v.
Boren, 411 F.2d 879, 882 (8th Cir. 1969); see
Sancom, Inc. v. Qwest Commc'ns Corp., 683 F.Supp.2d
1043, 1056 (D.S.D. 2010); Ways v. City of Lincoln,
206 F.Supp.2d 978, 991 (D. Neb. 2002); see also
Beanland v. Chicago, R. I. & P. Ry. Co., 480
F.2d 109, 116 (8th Cir. 1973); Megarry Bros. v. U.S. for
Use of Midwestern Elec. Const., Inc., 404 F.2d 479,
486-87 (8th Cir. 1968). "[E]xpert testimony that
purports to explain the legal meaning of a term is
forbidden . . . but testimony defining a term of art
as it is used within a given field may be allowed."
Ways, 206 F.Supp.2d at 991; accord Elia v.
Roberts, No. 1:16-CV-557, 2017 WL 4844296, at *5 (E.D.
Cal. Oct. 25, 2017); Sancom, 683 F.Supp.2d at 1052.
principles are applicable here: to the extent Margules
proposes to testify to the meaning of the term "title
defense" in the boxing business, that testimony is not
objectionable as invading the province of the Court. Nor is
Margules invading the province of the Court by specifically
opining on the Postol and Indongo bouts. Testimony that a
specific item or event fits within the meaning of a term may
be admissible under Rule 702 even if it embraces an
"ultimate issue." Ways, 206 F.Supp.2d at
instance, assume that two businesses enter into a contract
for the sale of a quantity of "left-handed monkey
wrenches, " but the buyer refuses delivery, insisting
the products aren't what was ordered. It would certainly
be appropriate for a qualified expert to opine on what
"left-handed monkey wrench" means in the relevant
field. See Megarry Bros., 404 F.2d at 486.
But it would also be appropriate for the expert to testify
that the particular product at issue either did, or
didn't, meet that definition. See id.;
Ways, 206 F.Supp.2d at 991; see also Nucor
Corp, 891 F.2d at 1350. Margules is proposing to do
essentially the same thing here. And the finder of fact is
free to accept such an opinion, in whole or in part-or the
tendered opinion may be rejected.
fact, the best argument for excluding Margules' testimony
might be one that Top Rank does not advance: that extrinsic
evidence of what "title defense" means in boxing is
inadmissible because the term isn't ambiguous.
CompareOrion Fin. Corp. of S. Dakota v. Am.
Foods Grp., Inc., 281 F.3d 733, 740 (8th Cir. 2002),
with Megarry Bros., 404 F.2d at 486-87; see also
Elbow Lake Co-op. Grain Co. v. Commodity Credit Corp.,
251 F.2d 633, 637 (8th Cir. 1958). There is a strong argument
to be made that a unification bout is simply a combination of
a title defense and a title challenge, and accordingly is
included in a "title defense" within the meaning of
the Agreement and Release. It is, in fact, Top Rank that
seeks to avoid what might otherwise be seen as a clear
contractual obligation by invoking a technical understanding
of the term "title defense"-and if ...