Delay v. Rosenthal Collins Grp., LLC

• Decision Date: 21 November 2012
• Docket Number: Civil Action 2:07-CV-568
• Parties: TODD J. DELAY, Plaintiff, v. ROSENTHAL COLLINS GROUP, LLC, Defendant.
• Court: U.S. District Court — Southern District of Ohio

TODD J. DELAY, Plaintiff,

v.ROSENTHAL COLLINS GROUP, LLC, Defendant.

Civil Action 2:07-CV-568

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

November 21, 2012

Magistrate Judge King

OPINION AND ORDER

This matter is before the Court, with the consent of the parties pursuant to 28 U.S.C. § 636(c), for consideration of Plaintiff Todd J. Delay's Motion in Limine to Exclude Defendants' Experts ("Plaintiff's Motion in Limine"), Doc. No. 118. Defendant Rosenthal Collins Group, LLC ("RCG" or "defendant"), opposes Plaintiff's Motion in Limine. Response to Plaintiff Todd J. Delay's Motion in Limine to Exclude Defendants' Experts ("Defendant's Response"), Doc. No. 121. Plaintiff has filed a reply. Reply Brief of Plaintiff Todd J. Delay in Further Support of his Motion in Limine to Exclude Defendants' Experts ("Plaintiff's Reply"), Doc. No. 122. Also before the Court is Defendant Rosenthal Collins Group, L.L.C.'s Motion in Limine to Exclude Portions of Plaintiff's Expert Report and Testimony ("Defendant's Motion in Limine"), Doc. No. 123. Plaintiff opposes Defendant's Motion in Limine. Plaintiff Todd J. Delay's Memorandum in Opposition to Defendant's Motion in Limine, Doc. No. 125. For the reasons that follow, Plaintiff's Motion in Limine is DENIED. Defendant's Motion in Limine is GRANTED.

I. Background

In January 2002, plaintiff became the branch manager of defendant's Columbus, Ohio office. Final Pretrial Order, Doc. No. 113, p. 4. Defendant is a Futures Commission Merchant operating numerous trading desks on the floors of the Chicago Board of Trade and the Chicago Mercantile Exchange. Id. at p. 3. Plaintiff registered with the Commodity Futures Trading Commission ("CFTC"), a federal agency with responsibility for administering and enforcing the Commodity Exchange Act ("CEA"), 7 U.S.C. § 1, et seq., as an "Associated Person" of defendant. Final Pretrial Order, Doc. No. 113, p. 4. In September 2005, the CFTC filed a civil action (the "Nebraska Action") against plaintiff alleging, inter alia, that he violated the CEA by manipulating the October 2003 Feeder Cattle Futures Contract, by attempting to manipulate the October 2003 Feeder Cattle Futures Contract, and by knowingly delivering false, or misleading, or knowingly inaccurate reports concerning market information that tended to affect the price of feeder cattle. Id. The claims asserted in that action involved acts undertaken by plaintiff during the time that he was an employee and Associated Person of defendant. Id.

Two of the five charges brought against plaintiff in the Nebraska Action were dismissed after the first day of trial. Id. at p. 5. The remaining three charges proceeded to trial and, on November 17, 2006, final judgment was entered in plaintiff's favor on all claims. Id. Plaintiff brought this action on June 15, 2007, seeking indemnification for all expenses, including attorneys' fees, associated with the Nebraska Action.

This matter is set for trial to the Court beginning December 10, 2012. Order, Doc. No. 114. The contested issues remaining for decision are:

Whether Plaintiff was acting within the scope of his employment and agency with respect to the CFTC's allegations in Count 1, Count 2, and Count 3 of the Nebraska [A]ction.

Whether Plaintiff was faultless with respect to the allegations in the Nebraska [A]ction.

Whether Plaintiff's claim is barred by one or more of RCG's affirmative defenses.

Final Pretrial Order, Doc. No. 113, pp. 5-6.

On October 12, 2012, plaintiff filed Plaintiff's Motion in Limine, asking that the Court exclude the testimony and reports of defendant's experts, Burton Meyer and Robert D. Murphy, Ph.D. Plaintiff's Motion in Limine, p. 2. Mr Meyer opines that plaintiff's involvement in the cash market for feeder cattle in Nebraska (the actions giving rise to the Nebraska Action) were "not part of the business activities of RCG and were beyond the scope of the written Agreement between RCG and Delay." Expert Report of Burton J. Meyer ("Meyer Report"), attached to Plaintiff's Motion in Limine as Exhibit A, at p. 7. Dr. Murphy opines that plaintiff's actions were "not necessary to correctly perform his role" with defendant. See Expert Report of Rob D. Murphy ("Murphy Report"), attached to Plaintiff's Motion in Limine as Exhibit B, at pp. 17-18.

On November 7, 2012, defendant filed Defendant's Motion in Limine, asking that the Court exclude portions of the report and testimony of plaintiff's expert, Steven Manaster, Ph.D. Defendant's Motion in Limine, p. 1. Dr. Manaster opined that plaintiff's actionsfell within the scope of his employment with defendant. Expert Report of Steven Manaster ("Manaster Report"), attached to Defendant's Motion in Limine as Exhibit A, at p. 4.

II. Standard

The purpose of a motion in limine is to ensure the evenhanded and expeditious management of trials by eliminating evidence that is clearly inadmissible. See Ind. Ins. Co. v. General Elec. Co. , 326 F.Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)). A court should exclude evidence on a motion in limine only when that evidence is determined to be clearly inadmissible on all potential grounds. Id. When a court is unable to determine whether or not certain evidence is clearly inadmissible, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice can be resolved in the proper context. Id. Whether or not to grant a motion in limine falls within the sound discretion of the trial court. Branham v. Thomas Cooley Law Sch., 68 9 F.3d 558, 560 (6th Cir. 2012) (citing United States. v. Talley, 194 F.3d 758, 765 (6th Cir. 1999)).

III. Discussion

Plaintiff's Motion in Limine and Defendant's Motion in Limine request that the Court exclude the testimony and reports of experts. Rule 702 of the Federal Rules of Evidence governs the use 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.

Fed. R. Evid. 702. Rule 702 confers upon trial judges the role of "gatekeeper" when considering the use of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). This Court has previously explained its gatekeeping role:

The trial court's gate-keeping role is two-fold. First, a court must determine whether the proffered testimony is reliable. See Daubert, 509 U.S. at 590. The reliability assessment focuses on whether the reasoning or methodology underlying the testimony is scientifically valid. Id. The expert's testimony must be grounded in the methods and procedures of science and must be more than unsupported speculation or subjective belief. Id. Thus, the proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3rd Cir. 1994).

The Supreme Court in Daubert set out four non-exclusive factors to aid in the determination of whether an expert's methodology is reliable: (1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community. Daubert, 509 U.S. at 593-94. See also Deal v. Hamilton County Bd. of Ed., 392 F.3d 840, 851 (6th Cir. 2004). The Court in Kumho Tire stressed that, in assessing the reliability of expert testimony, whether scientific or otherwise, the trial judge may consider one or more of the Daubert factors when doing so will help determine that expert's reliability. Kumho Tire, 526 U.S. at 150. The test of reliability is a "flexible" one, however, and the four Daubert factors do not constitute a "definitive checklist or test" but must be tailored to the facts of the particular case. Id. (quoting Daubert, 509 U.S.at 593); see also Ellis v. Gallatin Steel Co. , 390 F.3d 461, 470 (6th Cir. 2004). The particular factors will depend upon the unique circumstances of the expert testimony involved. See Kumho Tire Co. , 526 U.S. at 151-52.

The second prong of the gate-keeping role requires an analysis of whether the expert's reasoning or methodology can be properly applied to the facts at issue; that is, whether the opinion is relevant to the facts at issue. See Daubert, 509 U.S. at 591-93. This relevance requirement ensures that there is a "fit" between the testimony and the issue to be resolved by the trial. See United States v. Bonds, 12 F.3d 540, 555 (6th Cir. 1993). Thus, an expert's testimony is admissible under Rule 702 if it is predicated upon a reliable foundation and is relevant.

The gatekeeper role, however, is not intended to supplant the adversary system or the role of the jury; rather, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. The judge's role is simply to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value. Wellman v. Norfolk and W. Ry. Co., 98 F.Supp.2d 919, 923-24 (S.D. Ohio 2000).

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