Landeen v. Phonebillit, Inc.
| Decision Date | 11 September 2007 |
| Docket Number | No. 1:04-cv-1815-LJM-WTL.,1:04-cv-1815-LJM-WTL. |
| Citation | 519 F.Supp.2d 844 |
| Parties | Cindy LANDEEN, Petitioner/Counterclaim Defendant, v. PHONEBILLIT, INC. and Mirror Media Company, Respondents/Counterclaim Defendants. Steven V. Sann, Respondent/Intervenor/Counterclaim Plaintiff, v. Neil Lucas, Respondent/Intervenor/Counterclaim Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Patrick Joseph Dietrick, Thomas David Collignon, Collignon & Dietrick, Indianapolis, IN, for Petitioner.
Debra McVicker Lynch, Sommer Barnard Attorneys, PC, Jeffrey B. Fecht, John Mark McKinzie, Timothy Hemenway Button, Riley Bennett & Egloff LLP, Indianapolis, IN, for Respondents.
Daniel K. Burke, Michael A. Dorelli, G. Ronald Heath, Hoover Hull LLP, Stephen Edwards Plopper, Stephen Plopper & Associates, Indianapolis, IN, for Respondent/Intervenor/Counterclaim Plaintiff.
Jon O'Neal Shields, Shields Law Firm PC, Missoula, MT, Greg A. Small, Marc T. Quigley, Mark J.R. Merkle, Krieg Devault, Patrick F. Mastrian, III, Brett Y. Hoy, Dina M. Cox, John Mark McKinzie, John Carl Trimble, Lewis & Wagner, Indianapolis, IN, for Respondent/Intervenor/Counterclaim Defendant.
This cause is now before the Court on Petitioner/Counterclaim Defendant's, Cindy Landeen ("Landeen"), First Motion for Summary Judgment, Landeen's Motion for Oral Argument on Summary Judgment, Landeen's First Motion to Strike Portions of the Affidavit of Steven V. Sann, respondent/intervenor/counterclaim defendant's, Neil Lucas ("Lucas") (Landeen and Lucas, collectively, "Defendants"), Motion for Summary Judgment, Lucas' Motion to Bar Expert Testimony, Lucas' Motion to Preclude Expert Testimony, and respondent/intervenor/counterclaim plaintiffs, Steven V. Sann ("Sann"), Motion to Preclude Testimony of John Deckard.
The Court has considered the parties' arguments and for the reasons stated herein, rules as follows: Landeen's Motion for Oral Argument on Summary Judgment is DENIED; Landeen's. First Motion for Summary Judgment is GRANTED in part and DENIED in part; Landeen's First Motion to Strike Portions of the Affidavit of Steven V. Sann is GRANTED in part and DENIED in part; Lucas' Motion to Bar Expert Testimony is GRANTED; Lucas' Motion to Preclude Expert Testimony is GRANTED; Lucas' Motion for Summary Judgment is GRANTED in part and DENIED in part; and Sann's Motion to Preclude Testimony of John Deckard is GRANTED.
Lucas has moved to bar or preclude any expert testimony or reports proffered by Sann because Sann failed to disclose his expert witnesses within the time frame allowed by the Case Management Plan in this case. Through several orders in this cause written by Magistrate Judge Lawrence and the instant Judge, the Court has concluded that Sann's failure to follow the Case Management Plan and to seek in a timely manner leave of the Court to exceed the deadlines therein for disclosure of expert witnesses justified denying Sann leave to submit expert reports or testimony beyond the deadline. For the reasons stated in those orders, Lucas' instant motions to bar or preclude expert testimony and/or reports are GRANTED.
Sann has moved to preclude the proposed testimony and/or affidavit of Lucas' expert, John Deckard ("Deckard"). Lucas proffered Deckard's report in support of his defense against Sann's claims that Lucas committed legal malpractice in the formation of and representation of the corporate entities that were original defendants in this suit, PhoneBlLLit, Inc. ("PBI"), and Mirror Media Co. ("MMC"). Sann contends that Deckard's report is nothing but legal conclusions without factual foundation and without evidence that Deckard is unusually qualified to testify to the standard of care for a lawyer. Moreover, Sann asserts that Deckard's testimony would not be helpful to the Court in deciding an issue of malpractice because that is particularly within the understanding of the Court. As a result, Sann argues, the Court should preclude Lucas from relying upon Deckard's testimony.
The Court agrees with Sann that Deckard's report amounts to a series of legal conclusions without any analysis of the facts of the case. However, the Seventh Circuit has ruled that the nature of the statements alone is not sufficient justification to preclude the testimony because Federal Rule of Evidence 705 ("Rule 705") "allows experts to present naked opinions." Mid-State Fertilizer Co. v. Exch. Nat'l Bank of Chi., 877 F.2d 1333, 1339 (7th Cir.1989). But, as Sann also points out, an expert's testimony must also meet the requirements of Rule 702, which requires that the specialized knowledge of the individual "assist the trier of fact to understand the evidence or to determine a fact in issue" and be "qualified ... by knowledge, skill, experience, training, or education...." Fed.R.Evid. 702. Although the Court has no doubt that Deckard has considerable experience as a lawyer in the Indianapolis community, there is no specialized training, experience, or education in Deckard's background that would qualify him as an expert on matters of legal malpractice. Moreover, the issues pertaining to legal malpractice are not matters for which the trier of fact in this case, the Court, needs assistance.
For these reasons, Sann's Motion to Preclude Testimony of John Deckard is GRANTED.
Landeen contends that portions of Sann's affidavit in support of his opposition to Landeen's First Motion for Summary Judgment should be striken because they do not meet the requirements of Federal Rule of Civil Procedure 56(e) ("Rule 56(e)"). Landeen challenges Sann's statements in paragraphs 42, 44-47, 49-53, 55, 57, 59-61, 64, 66, 68-74, 80-87, 98, and 102-03. Landeen alleges that the Court should strike each of these paragraphs of Sann's affidavit because they are outside of Sann's personal knowledge, conclusory, or hearsay. Sann objects to the general nature of Landeen's objections, because Landeen has not set forth contrary facts or specifically alleged why the statements are outside Sann's personal knowledge, are conclusory, are improper opinion, or are hearsay.
Although the Court agrees with Sann that Landeen's motion lacks certain specifics with respect to the particular rules of evidence upon which she makes her objections, the Court disagrees with Sann that Landeen's motion is not specific enough for the Court to decide whether the Court should strike the statements in the relevant paragraphs for the stated reasons. There is no doubt that "broad-brushed, conclusory allegations" are insufficient on summary judgment to create an issue of fact. Scaife v. Cook County, 446 F.3d 735, 740 (7th Cir.2006). Accordingly, the Court addresses each of Landeen's challenges in turn.
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