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First American Title Insurance Company v. Northwest Title Insurance Agency, LLC

United States District Court, D. Utah

November 26, 2016

FIRST AMERICAN TITLE INSURANCE COMPANY and FIRST AMERICAN TITLE COMPANY, LLC, Plaintiff,
v.
NORTHWEST TITLE INSURANCE AGENCY, LLC; MICHAEL SMITH; JEFF WILLIAMS; and KRISTI CARRELL, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART [265] MOTION IN LIMINE TO EXCLUDE REPORT [SIC] AND TESTIMONY OF RICHARD S. HOFFMAN

          David Nuffer United States District Judge

         MOTION OVERVIEW

         Defendants “seek the exclusion of the testimony of Richard S. Hoffman, the damages expert designated by Plaintiffs . . . .”[1] “First American engaged Mr. Hoffman and his company, Lone Peak Valuation Group, to calculate certain damages it [allegedly] suffered as a result of the [alleged] unlawful conduct committed by Defendants.”[2] Mr. Hoffman offers opinions in three principal areas:

a. Lost Profits;
b. Disgorgement of Profits; and
c. Extra Expenses.[3]

         Defendants challenge all these opinions and Mr. Hoffman's qualifications, assumptions and methodology.

         DISCUSSION

         1. Governing Standards

         Federal Rule of Evidence 702 governs the motion.

         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.

         “Defendants do not dispute that Mr. Hoffman is generally qualified to do damages calculations.”[4] But they challenge his qualifications in this case and assumptions, methods and application of methods. Defendants specific challenges will be discussed in separate sections that follow.

         2. Mr. Hoffman's Qualifications and Assumptions

         Defendants “challenge Mr. Hoffman's qualifications to make critical assumptions specific to the title and escrow industry”[5] and to his use of data supplied by First American in developing his opinions.[6] The rules expressly permit experts to rely on data provided by others: “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”[7]

         Mr. Hoffman's qualifications in his field are evident and he has identified in his report and deposition the assumptions he has made outside his field as to the title and escrow industry. Defendants may contest these assumptions in cross examination or by independent testimony.

         3. Mr. Hoffman's Methods and Opinions

         a. Failure to Attribute Damage by Claim or Defendant

         Defendants assume, as they did in their Motion in Limine to Preclude Certain Damages Evidence, [8] that First American's expert report and expert testimony will be the exclusive sources of proof of causation and fault. Defendants may be correct that “[t]he ‘competition' of each of the Individual Defendants -the only FATCO employees allegedly contractually obligated not to compete - was different in nature, and had discrete, differing effects.”[9] And the same could be said of “solicitation” and other alleged wrongs. One would assume that in the course of presentation of evidence, proof will be given sufficient to enable the jury to assess causation, as to defendant and claim, and thus the gap between Hoffman's report and the requirements for ...


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