Catipovic v. Turley

• Decision Date: 18 April 2014
• Docket Number: No. C 11–3074–MWB.,C 11–3074–MWB.
• Parties: Branimir CATIPOVIC, Plaintiff, v. Mark TURLEY, Roland Fagen, and Fagen, Inc., Defendants.
• Court: U.S. District Court — Northern District of Iowa

68 F.Supp.3d 983

Branimir CATIPOVIC, Plaintiff

v.Mark TURLEY, Roland Fagen, and Fagen, Inc., Defendants.

No. C 11–3074–MWB.

United States District Court, N.D. Iowa, Central Division.

Signed April 18, 2014.

Kevin J. Visser, Paul D. Gamez, Simmons, Perrine, Moyer & Bergman, PLC, Cedar Rapids, IA, for Plaintiff.

Elizabeth R. Meyer, William E. Hanigan, Michael C. Richards, Sharon K. Malheiro, Davis, Brown, Koehn, Shors & Roberts, PC, Des Moines, IA, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE

MARK W. BENNETT, District Judge.

TABLE OF CONTENTSI.INTRODUCTION  989II.LEGAL ANALYSIS  989A.Overlapping Challenges  9891.Opinions of the plaintiff's expert  989a.Arguments of the parties  989b.Analysis  9912.Evidence concerning the Dunafoldvar Ethanol Facility  993a.Turley's challenge  994b.The Fagen Defendants' challenge  995c.Catipovic's challenge  9973.Unpleaded claims  998a.Arguments of the parties  998b.Analysis  9984.Undisclosed damages  999a.Arguments of the parties  999b.Analysis  10005.Relative wealth  1000a.Arguments of the parties  1000b.Analysis  10016.Settlement negotiations  10027.Turley's October 2012 letter to Wendland  1003a.Arguments of the parties  1003b.Analysis  1004B.Defendant Turley's Remaining Evidentiary Challenge  10081.Mr. Murphy's travel restrictions  10082.Arguments of the parties   10083.Analysis  1009C.Catipovic's Remaining Evidentiary Challenges  10091.Categories of evidence already addressed or not disputed  10102.Expert testimony as to facts and inferences  1010a.Arguments of the parties  1010b.Analysis  10113.Expert or lay opinions on credibility of others  1011a.Arguments of the parties  1011b.Analysis  10124.Statements or reports of persons not present to testify or be cross-examined  1013a.Arguments of the parties  1013b.Analysis  10135.Demands for items that have not been the subject of discovery  1014a.Arguments of the parties  1014b.Analysis  1014D.The Fagen Defendants' Remaining Evidentiary Challenges  10141.Roland Fagen's alleged offer of money to Wendland  1014a.Arguments of the parties  1015   b.Analysis  10162.The exclusivity agreement between Turley and the Fagen Defendants  1017a.Arguments of the parties  1017b.Analysis  10183.References to filing of or rulings on pretrial motions.  1019III.CONCLUSION  1019

I. INTRODUCTION

Plaintiff Branimir Catipovic, a Massachusetts citizen who is once again an Iowa resident, asserts claims in this case arising from the failure of an alleged partnership to develop ethanol production facilities in Eastern Europe. Catipovic seeks to recover damages for breach of contract and unjust enrichment from defendant Mark Turley, an Irish investor now living in Hungary, and damages for unjust enrichment from defendant Roland Fagen, a Minnesota citizen, and his Minnesota company, defendant Fagen, Inc., which is engaged in commercial and industrial contracting and engineering services, focusing primarily on the ethanol plant industry. Although the parties—along with non-party Walt Wendland—originally discussed building an ethanol plant in Osijek, Croatia, such a plant was never built. Rather, Turley and the Fagen Defendants eventually collaborated in the building of an ethanol facility, now in operation, in Dunafoldvar, Hungary, (the Dunafoldvar Ethanol Facility) without Catipovic's (or Wendland's) involvement.

This case was set for a jury trial to begin on April 14, 2014, but the trial was recently continued to begin on November 12, 2014. It is now before me on three evidentiary motions, filed in anticipation of the April 14, 2014, trial date: (1) defendant Turley's February 28, 2014, Motion In Limine (docket no. 131), seeking to exclude eight categories of evidence; (2) plaintiff Catipovic's February 28, 2014, Motion In Limine (docket no. 132), seeking to exclude thirteen categories of evidence; and (3) the Fagen Defendants' February 28, 2014, Motion In Limine (docket no. 133), seeking to exclude eleven categories of evidence, some of which overlap categories of evidence that defendant Turley also seeks to exclude. I believe that resolving the evidentiary motions now may facilitate trial preparations, notwithstanding that the trial has been continued for several months. Moreover, further evidentiary motions are unlikely, because, in the April 2, 2014, Trial Management Order, resetting the jury trial to begin on November 12, 2014, I expressly stated, “No further motions in limine shall be filed without permission of the court.” Trial Management Order (docket no. 163), § V.

I find the parties' written submissions sufficient to address the evidentiary issues presented, without oral arguments. Therefore, I will resolve these motions on the parties' written submissions.

II. LEGAL ANALYSIS

The various motions now before me include challenges to several overlapping categories of evidence. Thus, rather than consider the evidentiary issues motion-by-motion, I will first consider the overlapping categories of challenged evidence, then turn to each party's remaining evidentiary challenges.

A. Overlapping Challenges

1. Opinions of the plaintiff's expert

The first category of evidence that both defendant Turley and the Fagen Defendants seek to exclude is any testimony or opinions from Catipovic's expert, Michael Ott, pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). To the extent that Mr. Ott may attempt to expand his opinions beyond those presented in his February 19, 2013, written report, Turley also seeks to exclude such expanded opinions as untimely.

a. Arguments of the parties

Turley argues that, although Mr. Ott intends to offer opinions regarding the value of Catipovic's damages, his education was not in finance, business valuation, or economics, but in biochemistry. Turley argues that Mr. Ott's generalized experience in biotechnology does not qualify him as an expert on the relevant issues here. Turley also argues that Mr. Ott's opinions in his February 19, 2013, written report are not supported by sufficient facts or data to be admissible, because they are based on data from the Center for Agricultural and Rural Development (CARD) at Iowa State University, concerning ethanol production in Iowa, not data from Hungary or even Europe. Turley argues that Mr. Ott's reliance on irrelevant data also demonstrates that his opinions are entirely speculative. Turley contends that the speculative nature of Mr. Ott's opinions is also apparent from his reliance on what Turley describes as “fictitious” numbers for production at the Dunafoldvar Ethanol Facility, before it became operational; his calculations of profits with no adequate explanation for how the factors used were derived; and his failure to consider the divergent cost structures between Iowa and Hungary. Turley points out that, at the time of his Motion In Limine, Mr. Ott had made no attempt to supplement his opinions with additional information about the actual performance of the Dunafoldvar Ethanol Facility, even though the defendants had provided some of that information to him. The Fagen Defendants essentially echo Turley's criticisms of Mr. Ott's opinions. They add that Mr. Ott has failed to itemize or explain any damages that can be claimed from the Fagen Defendants or any basis for his opinion that the value of the work that Catipovic provided to the defendants is $2 million.

In response to the defendants' challenges to his expert, Catipovic argues that Mr. Ott's CV demonstrates his extensive experience in the financial aspect of the renewable energy business, including ethanol. Catipovic argues that Mr. Ott's experience includes raising over $150 million for various renewable energy businesses, and that his current employment is with a venture capital group, performing due diligence on new business opportunities in renewable energy and making recommendations based on market strength and business models. Catipovic points out that Mr. Ott also provided an amended and supplemented expert report after the defendants filed their Motions In Limine and after they belatedly produced financial data from the Dunafoldvar Ethanol Facility. Catipovic contends that the defendants' belated disclosures have allowed Mr. Ott to dispense with the data and market information from the United States market that he was forced to use when actual financial data from Europe was not available. Catipovic contends that the amended and supplemented report moots most of the defendants' criticisms of Mr. Ott's original opinions and demonstrates sufficient, not-speculative bases for his opinions. Catipovic also points out that the defendants criticize Mr. Ott's reliance on the same sort of information about United States ethanol production that the defendants used to tout their European ethanol project to prospective investors. Catipovic argues that, as to damages from unjust enrichment of the Fagen Defendants and Turley, Mr. Ott's opinions are adequate, because they are based on valuations of the contributions of sufficiently similar promoters. Finally, Catipovic contends that the weight to be given to his expert's opinions is for the jury to decide.

In reply, Turley argues that Mr. Ott still lacks the necessary qualifications to offer expert opinions in this matter, because of his lack of education or training in the field of business valuations or any specific experience with foreign business valuations. Turley also argues that Catipovic should not be allowed to offer untimely disclosed opinions that Mr. Ott has now concocted, because the defendants are not to blame for any delays in the disclosure of pertinent financial data, and because Mr. Ott waited too long to supplement his report in March 2014, after receiving some of the “new” information on which that report is based, which was disclosed in 2012 and 2013. The Fagen Defendants add that Mr. Ott has offered no adequate analysis to demonstrate the range of...