The opinion of the court was delivered by: Seybert, District Judge
Still pending before the Court is the Government's motion to exclude "Debt Offset" testimony from Kenneth McGraw, who Mr. Brooks noticed as a summary witness. For the foregoing reasons, this motion is GRANTED IN PART AND DENIED IN PART.
Mr. Brooks has proffered that Mr. McGraw will provide summary testimony into the following areas: (1) unpaid salary; (2) unreimbursed expenses for business use of Mr. Brooks' personal aircraft; (3) unreimbursed expenses for business use of Mr. Brooks' Florida residence; (4) unreimbursed expenses for business use of Mr. Brooks' New York residence; (5) unreimbursed life insurance premiums; and (5) cash value of foregone benefit of having a Florida chauffer. The Court discusses each in turn.
Mr. Brooks proffers that Mr. McGraw will compare the amount of salary that Mr. Brooks was contractually entitled to with the amount of salary he actually received, based on his employment contracts and the relevant SEC filings. The Government does not object to this testimony, and the Court finds that it is relevant to the issue of Mr. Brooks' intent, among other purposes. Accordingly, the Court does not exclude this testimony.
Mr. McGraw may not, however, testify that DHB was "struggling to survive and strapped for cash" between 1996 and 2000. Docket No. 1053 at 3. Mr. McGraw is not a fact witness. And he has not been qualified as an expert on DHB's historical financial condition.
(2) Unreimbursed Business Use of Aircraft
The Government "does not object to Mr. McGraw 'relying upon and incorporat[ing] the analysis of charter expert witness, Mr. Gil Wolin, into his qualification of unreimbursed business expenses." Docket No. 1092 at 2. Consequently, Mr. McGraw may testify as a summary witness in this regard.
(3) Unreimbursed Business Use of Florida Residence
Under the terms of his 1996 and 2000 employment agreements, Mr. Brooks was entitled to have DHB reimburse him for the business use of his Florida residence. In August 2004, the terms of this arrangement changed, and DHB began paying Mr. Brooks the fair rental value of the condominium.
Mr. Brooks seeks to admit, through Mr. McGraw, evidence showing that the condominium's fair rental value between 1996 and August 2004 significantly exceeded the expenses that DHB paid to maintain that condominium (e.g., taxes and condominium fees), and did not reflect all the expenses that Mr. Brooks allegedly incurred, such as depreciation. This is not appropriate summary testimony. Mr. Brooks has proffered nothing to indicate that DHB agreed to pay him his apartment's fair rental value between 1996 and August 2004. Nor do the underlying documents reflect any such obligation. Rather, they indicate that DHB agreed only to pay Mr. Brooks' "expenses." Thus, this proffered "summary testimony" is nothing of the sort. More accurately, it is another example of Mr. Brooks' spurious attempts to argue, ex post, that he should somehow get "credit" for money that DHB never agreed to pay him, by unilaterally rewriting his agreements with the Company. As the Court has repeatedly stressed, such testimony is both irrelevant and highly confusing, especially in the absence of any evidence indicating that DHB would have agreed the terms that Mr. Brooks now feels would have been more equitable to him.
(4) Unreimbursed Business Use of New York Home
Under the terms of his 1996 and 2000 employment agreements, Mr. Brooks was entitled to reimbursement of business-related expenses associated with his New York home. In 2004, the arrangement changed. DHB's Audit Committee decided to instead reimburse Mr. Brooks for the corporate use of his New York home in a net amount of the fair rental value of the allocable share of the ...