United States District Court, D. Utah
FIRST AMERICAN TITLE INSURANCE COMPANY and FIRST AMERICAN TITLE COMPANY, LLC, Plaintiff,
NORTHWEST TITLE INSURANCE AGENCY, LLC; MICHAEL SMITH; JEFF WILLIAMS; and KRISTI CARRELL, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART  MOTION IN LIMINE TO EXCLUDE REPORT
[SIC] AND TESTIMONY OF RICHARD S. HOFFMAN
Nuffer United States District Judge
“seek the exclusion of the testimony of Richard S.
Hoffman, the damages expert designated by Plaintiffs . . .
.” “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.” Mr. Hoffman offers opinions in three
a. Lost Profits;
b. Disgorgement of Profits; and
c. Extra Expenses.
challenge all these opinions and Mr. Hoffman's
qualifications, assumptions and methodology.
Rule of Evidence 702 governs the motion.
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.
do not dispute that Mr. Hoffman is generally qualified to do
damages calculations.” 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.
Mr. Hoffman's Qualifications and Assumptions
“challenge Mr. Hoffman's qualifications to make
critical assumptions specific to the title and escrow
industry” and to his use of data supplied by First
American in developing his opinions. 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
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.
Mr. Hoffman's Methods and Opinions
Failure to Attribute Damage by Claim or Defendant
assume, as they did in their Motion in Limine to Preclude
Certain Damages Evidence,  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.” 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