Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spear v. Fenkell

United States District Court, E.D. Pennsylvania

December 23, 2016

SPEAR, et al.
v.
FENKELL, et al.

          MEMORANDUM

          RICHARD A. LLORET UNITED STATES MAGISTRATE JUDGE

         The Fenkell Parties have moved to exclude expert testimony from Samuel Halpern, Michael Mittleman, and Nick Bubnovich, under under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Doc. No. 635. The Alliance Parties have opposed this motion. Doc. No. 658. For the reasons explained below, I will deny the motion.

         The Third Circuit requires three things of an expert's opinion before it can be admitted under Rule 702: “qualification, reliability and fit." Schneider v. Fried, 32o F.3d 396 404 (3d Cir. 2003). The Fenkell Parties focus their attack against all three experts on reliability. The purpose of the reliability requirement “is to make certain an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (emphasis added). Reliability is not a high standard. In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994)). To a lesser extent, the Fenkell Parties also attack the “fit” of the experts' testimony. I will deny the motion to exclude as to all three expert witnesses.

         Samuel Halpern

         As for Mr. Halpern, the Alliance Parties proffer three opinions:

As set forth in his opening report, Halpern will offer three overall opinions in this case: (A) “Mr. Fenkell's process for engaging Stonehenge on behalf of the ESOP and Alliance was not reasonable, in light of applicable standards and practices for investment due diligence by fiduciaries”; (B) “The terms of the Stonehenge Agreements-including but not limited to the structure and amount of fees the ESOP and Alliance agreed to pay Stonehenge (reflected in the Fee Agreements)- were not reasonable”; and (C) “DBF's receipt of fees from Stonehenge was not reasonable in light of applicable investment standards and practices for fiduciaries.” (See Daubert-19.)

Doc. No. 658, at 18. The Alliance Parties assert that Mr. Halpern's opinions are grounded in his more than three decades of experience as an investment professional and practicing attorney concentrating in ERISA regulated investments. Id. The Fenkell Parties allege that Halpern's testimony is unreliable because it is based “solely on his subjective belief and unsupported speculation.” Doc. No. 635 at 10. As a result, the Fenkell parties urge that Mr. Halpern's testimony is not relevant and is not helpful to the finder of fact. Id.

         When discussing practical business matters, rather than academic theories, reliability “depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.” States v. Fernwood Hotel & Resort, 2014 WL 198568, at *3 (M.D. Pa. Jan. 15, 2014) (quoting United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000)); see Schneider, 32o F.3d at 406 (explaining that a cardiologist's experience rendered his testimony reliable). This case is about financial transactions. There are sufficient indicia of reliability in Halpern's experience, and in his application of that experience to the facts of this case, to warrant permitting his testimony. The Fenkell Parties will be free to exploit any potential weaknesses through cross-examination at trial.

         Michael Mittleman

         I have opined that Mr. Mittleman's testimony need not be excluded, in denying the Stonehenge Parties' motion to exclude his testimony (Doc. No. 627). I adopt the same reasoning in denying the Fenkell Parties' motion to exclude Mr. Mittleman's testimony. I find that Mr. Mittleman is qualified and that the testimony is reliable. His testimony appears to be reasonably based on his years of experience in structured transactions and asset-backed securities transactions. His testimony and expertise also appear to fit at least part of the services supplied by the Stonehenge Parties. In short, it appears reasonably likely that Mr. Mittleman's testimony will assist the trier of fact. Rule 702.

         Nick Bubnovich

         The Alliance Parties intend to proffer the testimony of Mr. Bubnovich for the proposition that (1) Mercer was not independent insofar as Alliance management, and not the Compensation Committee, hired Mercer; and (2) the Compensation Committee should have been informed about the DBF Consulting payments in approving Fenkell's compensation. Doc. 658 at 5. The Fenkell Parties argue that Bubnovich's testimony is not reliable “because it is based on subjective belief rather than authoritative materials.” Doc. No. 635 at 12-14.

         As discussed above, reliability concerning practical business matters depends primarily on knowledge and experience of the expert, and not on methodology. Mr. Bubnovich's experience as a compensation consultant and his application of that experience to the facts of this case, lend itself to sufficient reliability.

         Finally, I note this is a bench trial. I choose to follow Judge Pollock's reasonable admonition, in Alco Industries, Inc. v. Wachovia ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.