Distinguishing between fact evidence and opinion evidence is important; a witness cannot provide both, as opinions offered by a fact witness are not admissible. Still, a fact witness may offer a summary of her testimony by way of an affidavit.
This case is like the gift that keeps on giving! Readers may remember that the previous edition of the Expert's Examiner discussed two decisions in this matter that pertained to the disqualification of experts. The instant decision relates to two fact witnesses proposed by the SEC, Erin Smith and Patrick McCluskey, whom the defense asserts are really offering opinions. Since they were not timely identified as experts by the SEC, Defendants seek exclusion of the pair's testimony during the summary judgment phase, when Ms. Smith and Mr. McCluskey submitted affidavits summarizing their expected statements. Their expected role will be to provide summaries of voluminous exhibits and introduce prepared charts that also summarize the evidence. Defendants claim that the Smith-McCluskey testimony will inevitably involve expert testimony that must be barred as the opinions of untimely disclosed experts. Not so, the Court responds: "As reflected in their declarations, the witnesses are not functioning as experts, but as summary witnesses."
From a legal standpoint, the statistical facts that arise from the data and are summarized in these witnesses' testimony is not opinion, even though these witnesses may have determined the methodology by which the data set was amassed. "The admission of summary evidence -- whether by chart or through a summary witness -- is governed by" Fed. R. Evid. 1006. That Rule allows proponents to use summaries, charts, or calculations when the underlying documents are so voluminous or bulky as not to be "conveniently examined." Summary witnesses may not [u]surp the function of the jury to decide what to infer from the evidence."
That a witness testifies to the assumptions she made in presenting her analysis of data does not constitute expert testimony. Rather, such explanations relate to a description of methodology. While such decisions may be subjective, their reasonableness may be tested through cross-examination. Defendants claim that Ms. Smith became an expert when she "manipulated the data," but the Court finds no instance of, or evidence submitted by Defendants suggesting, manipulation of the data. The assumptions she made and disclosed were "an appropriate response by a summary witness to confusing or incomplete data. Similarly, Mr. McClusky also inferred a hierarchy of the Lek personnel from the data", which the Defendants point to as expert testimony, but the Court sees these inferences as flowing directly from the evidence. "It does not reflect use of expertise to opine upon the evidence." The motion in limine is denied.
(ed: In a subsequent decision, issued August 17, the Court denied a new motion by Defendants to add two expert witnesses, saying their addition to the list of witnesses was untimely and would prejudice the SEC's case. This case is moving quickly towards trial. Jury selection is scheduled for mid-October, according to the PACER docket entries.)
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