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United States v. Talmage

United States District Court, D. Utah

April 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RONALD B. TALMAGE, et al., Defendants.

          MEMORANDUM DECISION AND ORDER DENYING MOTION TO EXCLUDE TESTIMONY OR LIMIT TESTIMONY OF GARY D. OLSEN

          David Nuffer United States District Judge.

         Defendants Western Land & Livestock LLC and Western Reserve Mortgage LLC (collectively, the “Western Entities”) filed a motion (the “Motion”)[1] to exclude or limit the testimony of Gary D. Olsen, a retained expert witness for Plaintiff United States of America, based on Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.[2] Because Olsen's opinions are within the reasonable confines of his expertise and are also sufficiently reliable and relevant, the Motion is DENIED.

         BACKGROUND

         This action concerns a dispute between the Western Entities and the United States regarding the ownership of certain real property, referred to as the “Liberty Property, ” on which the United States seeks to foreclose to satisfy the tax obligations of Defendants Ronald B. Talmage and Annette C. Talmage.[3] In anticipation of trial, the United States retained Olsen, a licensed CPA and forensic accountant, to provide expert testimony related to the nature of the Western Entities' interest in the Liberty Property and associated transactions.[4] Based on the evidence he has reviewed, Olsen is of the opinion that: (1) the Western Entities and their principal, John Wadsworth, “have not paid anything related to the Liberty Property on a net basis”;[5] (2) Wadsworth received far more from entities associated with the Talmages than he paid to them;[6] and (3) it cannot be concluded that certain payments “were part of an overall Ponzi scheme allegedly perpetrated by Mr. Talmage.”[7]

         The Western Entities seek to exclude each of these three opinions.

         DISCUSSION

         Rule 702 of the Federal Rules of Evidence establishes the standard for the admissibility of expert testimony.

         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.[8]

         It is the responsibility of “the trial judge [to] ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”[9] District courts are given “broad latitude” in deciding “how to determine reliability” and in making the “ultimate reliability determination.”[10] However, exclusion of expert testimony is the exception rather than the rule.[11]Often the most appropriate way to attack shaky-but-admissible evidence is through vigorous cross-examination and the presentation of contrary evidence.[12]

         Determination of the admissibility of expert testimony involves a three-step process. First, determine whether the expert is qualified.[13] Second, determine whether the expert's opinion is reliable based on an assessment of its underlying reasoning and methodology.[14] And, third, determine whether the subject of the opinion is relevant.[15]

         Olsen qualifies as an expert.

         The Western Entities only challenge Olsen's qualifications as an expert with respect to his third opinion, which is that it cannot be concluded, based on available evidence, that certain payments were part of an overall Ponzi scheme. The Western Entities contend that Olsen is not qualified to give this opinion because he ...


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