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Ross University School of Medicine, Ltd v. Brooklyn-Queens Health Care

December 7, 2012

ROSS UNIVERSITY SCHOOL OF MEDICINE, LTD.,
PLAINTIFF,
v.
BROOKLYN-QUEENS HEALTH CARE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge

REPORT AND RECOMMENDATION/ MEMORANDUM AND ORDER

In this breach of contract action, plaintiff Ross University School of Medicine, Ltd. ("Ross") and defendants Brooklyn-Queens Health Care, Inc. ("BQHC") and Wyckoff Heights Medical Center ("Wyckoff") (collectively, "defendants") have cross-moved for partial summary judgment. Specifically, Ross seeks summary judgment on its breach of contract claim against BQHC, both as to liability and the amount of damages that Ross incurred as a result of the alleged breach. Ross also moves to dismiss several of defendants' affirmative defenses. As for defendants' motion for summary judgment, they seek to dismiss two limited aspects of Ross's breach of contract claim -- namely, piercing the corporate veil and specific performance. Not to be outdone, Ross has filed two additional motions in connection with the summary judgment cross-motions -- a motion to strike certain paragraphs contained in defendants' Rule 56.1 Statement and a motion to preclude defendants' rebuttal damages expert.

On July 18, 2012, the Honorable Kiyo A. Matsumoto referred all pending motions in this matter to the undersigned magistrate. See Order (July 18, 2012). For the reasons stated below, this Court denies Ross's motions to strike and to preclude defendants' expert, and recommends that Ross's and defendants' respective motions for partial summary judgment be granted in part and denied in part.

BACKGROUND*fn1

Ross, which operates a medical school in the Caribbean commonwealth of Dominca, regularly contracts with hospitals around the United States to obtain clerkship positions for its medical students. See Defendants' Rule 56.1 Statement of Undisputed Facts in Support of Partial Summary Judgment ("Def. 56.1") ¶¶ 36-37, Electronic Case Filing Docket Entry ("DE") #97-1. The instant litigation arises out an alleged promise by defendants to guarantee Ross a certain number of medical clerkship positions in exchange for, among other things, Ross's up-front "prepayments" totaling approximately $13 million. See generally Second Amended Complaint ("SAC"), DE #24.

I. The Ross-BQHC Agreement

In 2006, in the wake of the bankruptcy of New York-based St. Vincent's Catholic Medical Centers ("St. Vincent's"), defendant Wyckoff entered into an agreement with St. Vincent's to acquire two of its hospitals -- Mary Immaculate Hospital ("Mary Immaculate") and St. John's Queens Hospital ("St. John's"). See Def. 56.1 ¶¶ 13-15, DE #97-1; Asset Purchase Agreement (May 9, 2006), DE #97-7. Wyckoff, which operates a hospital in Brooklyn under the same name, ultimately decided that it did not want to directly own Mary Immaculate and St. John's and it therefore made certain changes to its corporate structure.*fn2

See Def. 56.1 ¶ 25, DE #97-1. First, Wyckoff created an affiliate called Caritas Health Care, Inc. ("Caritas"),*fn3 which would directly acquire Mary Immaculate and St. John's (hereinafter collectively referred to as the "Caritas Hospitals"). See Caritas Corporate Records, DE #97-10. Second, Wyckoff renamed a pre-existing affiliate, WHMC Properties, as defendant BQHC. See WHMC Properties Corporate Records, DE #97-13 at 10.*fn4 Finally, Wyckoff made BQHC the sole parent of both Wyckoff and Caritas. See Def. 56.1 ¶ 24, DE #97-1.

In August 2006, while Wyckoff was seeking regulatory approval of Caritas's acquisition of the Caritas Hospitals, Wyckoff's Chief Executive Officer ("CEO"), Dominick Gio ("Gio"), wrote to Ross (hereinafter, the "Gio Proposal Letter"). See Letter to Nancy Perri (Aug. 21, 2006), DE #106-5. At that time, Ross had a clerkship agreement with Wyckoff with respect to Wyckoff's namesake hospital*fn5 and a separate agreement with St. Vincent's with respect to Mary Immaculate and St. John's. See Pl. Resp. 56.1 ¶ 2, DE #102 at 28; Def. 56.1 ¶ 37, DE #97-1. In the Gio Proposal Letter, Wyckoff's CEO informed Ross, among other things, that Wyckoff would be sponsoring the Caritas Hospitals and that there were plans to expand the number of clerkships at those facilities; he invited Ross to invest in additional prepaid clerkships. See Gio Proposal Letter at 1-2, DE #106-5.
In the months following the Gio Proposal Letter, negotiations with Ross over clerkship placements at the Caritas Hospitals continued. See Def. 56.1 ¶ 38, DE #97-1. Julius Romero, who was in charge of clerkships at Wyckoff and the Caritas Hospitals, was the point-person for these negotiations regarding the Caritas Hospitals.*fn6 See, e.g., Email from Julius Romero (Oct. 5, 2006) ("10/5/06 Romero Email"), DE #106-11; Email from Julius Romero (Oct. 24, 2006), DE #106-12; Email from Julius Romero (Oct. 31, 2006) ("10/31/06 Romero Email"), DE #106-14; see also Deposition Transcript of Julius Romero (July 1, 2010) ("Romero Tr.") at 114-15, DE #97-24.

On December 28, 2006, Ross and BQHC -- the parent entity of Caritas and Wyckoff -- entered into a final agreement, in which Ross agreed to pay $5 million as a "prepayment" for a guaranteed number of medical clerkships at the Caritas Hospitals (the "Agreement"). See Affiliation Agreement between Ross and BQHC, DE #97-41. Under the Agreement, as clerkships were provided, the contractually agreed-upon rate would be credited against Ross's prepayment, until such time as the balance of Ross's prepayment was exhausted. Caritas, which directly owned the Caritas Hospitals, was not a party or signatory to the Agreement, although it is referred to in the Agreement as the BQHC subsidiary that "own[ed] and operate[d]" the Caritas Hospitals. See id., DE #97-41 at 2. BQHC's other subsidiary, Wyckoff, was not expressly mentioned in the Agreement. See generally Agreement. Critical to the dispute in this case, Exhibit B to the Agreement provided the following:

In the event the [Caritas] Hospitals are not operative, and [Ross] is not in material breach of the Agreement, BQHC agrees to provide [Ross] with an equivalent number of clerkships as agreed to herein at one or more of its facilities.

See id., DE #97-41 at 10 (hereinafter, the "Equivalent Clerkship Provision"). The term "facilities" was not defined in the Agreement.

II. Caritas's Financial Troubles and Subsequent Amendments to the Agreement

On December 28, 2006, in accordance with the Agreement, Ross deposited $5 million into a bank account specifically requested by Romero. See Email from Susan O'Leary (Dec. 28, 2006), DE #110-12 (listing fund beneficiary as Caritas Healthcare); Email from Julius Romero (Dec. 22, 2006) ("12/22/06 Romero Email"), DE #110-10. The bank account was in the name of Caritas, not BQHC. See id.; Ross JP MorganChase Bank Statement (Dec. 2006), DE #110-11. In the days following the Agreement's execution, Wyckoff's then-Chief Financial Officer ("CFO") transferred more than $6 million from Caritas to Wyckoff. See Email from Dominick Gio (March 2, 2007), DE #97-51 at 3. The parties dispute whether these transfers were authorized. Compare Def. 56.1 ¶ 57 (claiming that transfers from Caritas were made "without authorization"), with Pl. Resp. 56.1 ¶ 57, DE #102.

Less than two months after Ross and BQHC executed the Agreement, a BQHC senior vice president contacted the New York State Department of Health ("NYSDOH") concerning "working capital shortfalls at Caritas" and notified the NYSDOH that "Caritas ha[d] 7 to 10 days of cash left and time [wa]s of the essence . . . ." See Email from Edward Dowling (Feb. 8, 2007), DE #107-14 at 4. The NYSDOH, in investigating whether to grant Caritas an emergency loan, discovered that Wyckoff owed Caritas more than $6.7 million. See Special Board Meeting Minutes (Mar. 12, 2007), DE #107-16 at 4. As a condition to loaning Caritas money, the NYSDOH required that Caritas retain an outside consulting firm to oversee the restructuring of BQHC, Caritas and Wyckoff. See Deposition Transcript of Harold McDonald (June 27, 2011) ("McDonald Tr.") at 87-89, DE #105-4. To this end, defendants retained FTI/Cambio, LLC ("FTI"), and, in July 2007, Thomas Singleton ("Singleton") of FTI was named Chief Restructuring Officer of BQHC. See id.; Deposition Transcript of David Hoffman (June 1, 2011) at 94-95, DE #105-3. In this position, Singleton was responsible for overseeing the day-to-day management of BQHC, Caritas and Wyckoff. See Memorandum from Emil Rucigay (July 30, 2007), DE #106-29 (Singleton "has been charged with the responsibility to assume full and overall management authority of BQHC, Wyckoff and Caritas . . . ."); McDonald Tr. at 88, DE #105-4 (NYSDOH insisted that Singleton "be given control, management control," of BQHC, Wyckoff and Caritas).

As a means of generating additional capital for Caritas during this period, Singleton, along with Gio and Romero, started to negotiate with Ross to expand its clerkship agreement with BQHC. See Wyckoff Board Meeting Minutes (Dec. 20, 2007) ("12/20/07 Minutes"), DE #107-18 at 5. Subsequently, on December 5, 2007, BQHC and Ross amended the Agreement, whereby Ross agreed to pay another $4 million in exchange for additional guaranteed clerkship placements at the Caritas Hospitals (the "First Amendment"). See Amendment to Affiliation Agreement (Dec. 5, 2007), DE #106-25. Romero and BQHC CFO Paul Goldberg signed the First Amendment on behalf of BQHC. See First Amendment, DE #106-25 at 5. A few weeks later, Singleton informed the Wyckoff Board of Trustees that the First Amendment had been entered into and that, pursuant to it, Ross had paid Caritas $3.7 million. See 12/20/07 Minutes, DE #107-18 at 5.*fn7

A few months later, Ross and BQHC entered into a second amendment to the Agreement, pursuant to which Ross would make an additional payment of $4 million in exchange for further increasing the number of clerkships (the "Second Amendment"). See Second Amendment to Affiliation Agreement (Feb. 28, 2008), DE #106-26.*fn8 The Second Amendment was signed by Romero, as Assistant Vice President of Medical Education of BQHC, and Singleton, as CEO of BQHC. See Second Amendment, DE #106-26 at 6.

According to the terms of the Second Amendment, and consistent with an accompanying letter agreement executed the same day,*fn9 in the event the Caritas Hospitals did not have the capacity to provide the increased number of clerkships guaranteed in the Second Amendment, then "BQHC shall deliver thirty five (35) core clerkship slots*fn10 at Wyckoff Heights Medical Center ('Wyckoff') to replace the remaining core clerkship slots the [Caritas] Hospitals are unable to deliver at such time" (hereinafter the "Capacity Provision"). See Second Amendment, DE #106-26 at 3. Thus, the Second Amendment's Capacity Provision applied where the Caritas Hospitals were operating but were unable to provide the requisite number of clerkships due to overcapacity. In contrast, the Agreement's Equivalent Clerkship Provision applied in the event the Caritas Hospitals were "not operative." See Agreement, DE #97-41 at 10. Tellingly, neither the First Amendment nor the Second Amendment modified or referenced the Equivalent Clerkship Provision contained in the original Agreement.

Ultimately, the funds paid by Ross pursuant to the First and Second Amendments were not sufficient to save Caritas. On February 6, 2009, Caritas filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of New York. See Def. 56.1 ¶ 63, DE #97-1. Thereafter, the Caritas Hospitals ceased operations. See id. ¶ 66. A number of Ross students who were slated to begin clerkships at the Caritas Hospitals were initially transferred to Wyckoff, see Email from John St. James (Mar. 5, 2009) ("3/5/09 St. James Email"), DE #93-14 at 2, but Wyckoff eventually took the position that it was not obligated to provide the clerkships guaranteed under the Agreement. See Confidential Memorandum from Patrick Unzicker (Oct. 7, 2009) ("10/7/09 Memorandum"), DE #97-55 at 2.

III. The Instant Litigation

On April 6, 2009, Ross commenced this litigation against BQHC, see Complaint, DE #1, and, a few months later, served an amended complaint adding Wyckoff as a second defendant. See Amended Complaint (Aug. 20, 2009), DE #20. Shortly thereafter, on September 22, 2009, Ross filed a Second Amended Complaint. See generally SAC, DE #24. In the Second Amended Complaint, Ross asserted a breach of contract claim against BQHC, see SAC ¶¶ 54-64, and sought to hold Wyckoff vicariously liable for BQHC's breach, pursuant to the equitable doctrine of piercing the corporate veil. See id. ¶¶ 65-80. In terms of remedies, Ross requested specific performance of the Agreement, as well as damages "for the costs of replacing clerkships slots lost to Ross." See SAC at 13. Following the conclusion of discovery, the parties cross-moved for partial summary judgment.

A. Ross's Motion for Partial Summary Judgment

Ross argues that it is entitled to summary judgment on various aspects of its breach of contract claim against BQHC. First, Ross contends that under the plain language of the Agreement's Equivalent Clerkship Provision, BQHC was obligated to provide an equivalent number of clerkships at one or more of its facilities in the event the Caritas Hospitals ceased to operate. See Plaintiff Ross University's Memorandum of Law in Support of Its Motion for Partial Summary Judgment ("Pl. SJ Mem.") at 8-9, DE #95. As it is undisputed that BQHC did not provide the clerkships, Ross requests that summary judgment be granted on the issue of BQHC's breach of the Agreement. See id.

Ross also seeks summary judgment on various affirmative defenses. See id. at 9-12. Specifically, Ross moves to dismiss the Fourth, Fifth, Seventh and Eighth Affirmative Defenses - impossibility, ulta vires, lack of authority, and mutual mistake, respectively - because it is undisputed that defendants have not returned to Ross the more than $6.2 million in prepayments that remain unearned. See id. In addition, Ross contends it is entitled to summary judgment on defendants' Sixth Affirmative Defense, which denies liability on the ground that BQHC acted as agent for its disclosed principal, Caritas. See id. at 11-12.

Finally, Ross moves for partial summary judgment as to damages. See id. at 4-8. In particular, Ross argues that defendants' rebuttal damages expert, Anthony G. Duffy ("Duffy"), conceded that Ross was damaged, at a minimum, in the amount of $12,876.134. See id. at 6-7. Further, assuming that the Court grants Ross's separate motion to preclude Duffy as an expert, see infra pp. 14-18, Ross asserts that it is entitled to summary judgment as to damages in the amount of $20,089,501, i.e., the total calculated by Ross's damages expert. See Pl. SJ Mem. at 7, DE #95.

B. Defendants' Motion for Partial Summary Judgment

Defendants move for partial summary judgment on two issues. First, defendants challenge Ross's attempt to hold Wyckoff responsible for BQHC's breach because, defendants contend, Ross cannot meet the heavy burden required to pierce BQHC's corporate veil. See Def. SJ Mem. at 14-23, DE #97-2. Second, defendants move for summary judgment on the equitable remedy of specific performance, pursuant to which Ross requests a court order requiring BQHC to direct Wyckoff to provide Ross with the clerkships to which Ross claims it was entitled under its Agreement with BQHC. See id. at 23-27. In particular, defendants contend that such an order would be improper, as it would require BQHC to take actions in contravention of Article 28 of New York's Public Health Law. See id.

C. Ross's Motions to Strike and Preclude

In response to defendants' motion for partial summary judgment, Ross moves to strike several paragraphs set forth in Defendants' Rule 56.1 Statement of Undisputed Facts, DE #97-1, on the ground that the facts asserted therein are conclusory, improper legal argument or inadmissible. See Plaintiff Ross University's Motion to Strike Portions of Defendants' 56.1 Statement ("Pl. Strike Mem.") at 2-6, DE #108. In addition, Ross separately moves to preclude proof from defendants' damages expert, Anthony Duffy. See Plaintiff Ross University's Memorandum of Law in Support of Its Motion to Preclude Defendants' Expert Witness ("Pl. Exp. Mem.") at 1-3, DE #99. Because the outcome of these two stand-alone motions necessarily impacts the evidence and facts considered by the Court in determining the underlying partial summary judgment motions, the Court will first address Ross's motions to strike a portion of defendants' Rule 56.1 Statement and to preclude defendants' expert.

ROSS'S MOTION TO STRIKE

Ross moves to strike several paragraphs set forth in Defendants' Rule 56.1 Statement, which Ross characterizes as containing conclusory statements and improper legal arguments and as relying on inadmissible evidence. See Pl. Strike Mem. at 2-6, DE #108. Defendants disagree, arguing that Ross has failed to meet the "heavy burden" required to justify striking defendants' statements. See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Strike ("Def. Strike Opp.") at 1, DE #118 (citing Pharmacy, Inc. v. Am. Pharm. Partners, Inc., No. 05-CV-776 (DRH) (AKT), 2007 WL 2728898, at *1 (E.D.N.Y. Sept. 14, 2007) (noting that motions to strike are generally disfavored)).

In the Eastern and Southern Districts of New York, Local Civil Rule 56.1 requires that a motion for summary judgment be accompanied by "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." U.S. Dist. Ct. Rules S. & E.D.N.Y., Local Civ. R. 56.1; see also Fed. R. Civ. P. 56(c). "The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001). "Statements in an affidavit or Rule 56.1 statement are inappropriate if they are not based on personal knowledge, contain inadmissible hearsay, are conclusory or argumentative or do not cite to supporting evidence." Epstein v. Kemper Ins. Cos., 210 F.Supp.2d 308, 314 (S.D.N.Y. 2002).

In response to Ross's challenge to defendants' Rule 56.1 Statement, defendants argue, inter alia, that it is appropriate to quote and describe legal statutes (such as Article 28 of the Public Health Law) to provide context for the factual issues in the case. See Def. Strike Opp. at 2, DE #118. Defendants further contend that their characterization of the evidence and use of "descriptive adjectives" does not warrant striking entire Rule 56.1 paragraphs as argumentative. See id. at 3-4.

Even assuming that certain of defendants' clauses cross the line, the drastic measure sought by Ross is not warranted here. Indeed, courts in this Circuit frequently deny motions to strike paragraphs in Rule 56.1 statements, and simply disregard any improper assertions. See, e.g., Mihalik v. Credit Agricole Cheuvreux N. Am., No. 09 Civ. 1251(DAB), 2011 WL 3586060, at *4 (S.D.N.Y. July 29, 2011) (despite improper assertions, court "decline[d] to engage in the time-consuming task of formally striking each statement at issue [and] [i]nstead, follow[ed] the practice of several other courts in the district" and "disregard[ed] any statements that lack[ed] support or [were] otherwise inadmissible"); M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F.Supp.2d 205, 209 (E.D.N.Y. 2010) ("in the exercise of its broad discretion," court denied motion to strike portions of Rule 56.1 statement but held that challenged portions would not be considered); Primmer v. CBS Studios, Inc., 667 F.Supp.2d 248, 255 (S.D.N.Y. 2009) (denying motion to strike where court would "disregard any materials contained in the affidavits or Local Rule 56.1 Counterstatement that [it] found to be improper"). Ross has articulated no reason to follow a different course in this case. Consequently, the Court denies Ross's motion to strike but will disregard any statement that is conclusory, argumentative or unsupported by admissible evidence. See, e.g., Def. 56.1 ¶¶ 6-8, DE #97-1 (setting forth legal interpretation of Article 28 regulation as undisputed fact); id. ¶ 18 (citation to news articles).*fn11

ROSS'S MOTION TO PRECLUDE DEFENDANTS' EXPERT

As an initial matter, before addressing Ross's objections to defendants' rebuttal damages expert, Anthony G. Duffy, the Court summarizes the damage calculations being asserted by Ross's own expert, Dr. Elizabeth Davis ("Davis"). In her expert report (which was issued on August 31, 2011 and revised on October 25, 2011), Davis broke down Ross's total damages into three separate components: (1) the balance of the prepayments, including contractually-specified interest that remained unearned as of June 30, 2011 (hereinafter, the "Prepayment Balance"); (2) the incremental costs incurred by Ross (through June 30, 2011) to replace clerkship rotations that were lost after the Caritas Hospitals ceased to operate (hereinafter, the "Present Replacement Costs"); and (3) the future incremental costs, for the period from July 1, 2011 through January 31, 2018, that Ross will likely incur in replacing clerkship rotations through the lifetime of the Agreement (hereinafter the "Future Replacement Costs"). See Expert Report of Elizabeth Kroger Davis (revised Oct. 25, 2011) ("Davis Report"), DE #119 at 6. In her report, Davis calculated the Prepayment Balance as $6,277,266; the Present Replacement Costs as $1,073,501; and the Future Replacement Costs as $12,738,735. See id.

Duffy's rebuttal to the Davis Report did not specifically address or contest the first two components calculated by Davis. See Rebuttal Expert Report of Anthony G. Duffy ("Duffy Report"), DE #121 at 19 (citing Davis Report in setting forth calculation of Prepayment Balance and Present Replacement Costs). Duffy did, however, object to Davis's methodology in estimating the Future Replacement Costs, which Duffy calculated as $5,525,367. See id.

Ross now moves to preclude defendants from offering proof from Duffy, their damages expert. First, Ross argues, to the extent that Duffy merely "adopts" Davis's calculation of the first two components, the Court should preclude Duffy's testimony under Rule 403 of the Federal Rules of Evidence ("FRE") as cumulative of Davis's Report. See Pl. Exp. Mem. at 1-2, DE #99. Second, Ross argues that Duffy's opinions should be precluded under Rule 702 of the FRE; according to Ross, Duffy is not qualified as an expert on damages in this matter because Duffy conceded at his deposition that he lacked expertise in the area of medical clerkship pricing. See Pl. Exp. Mem. at 4-7, DE #99.

I. Cumulative Testimony

Ross's motion to preclude based on the "cumulative" nature of Duffy's testimony can be swiftly rejected. First, where, as here, no trial date has been set, preclusion on this basis is premature. See United States v. Jamil, 707 F.2d 638, 643 (2d Cir. 1983) (reversing trial court's pretrial ruling that evidence was cumulative: "At this stage of the litigation, when the trial has not yet commenced and no evidence has yet been put before a jury, it is premature to conclude that this evidence is cumulative."). In any event, the Duffy Report makes clear that Duffy did not draw any conclusions as to the reasonableness of the first two components of Davis's analysis. See Duffy Report, DE #121 at 4-5 (stating that he did not assess the reasonableness of Davis's calculation of the Prepayment Balance or Present Replacement Costs). Thus, because Duffy does not purport to offer any opinion on those aspects, his report is not cumulative.*fn12

II. Duffy's Qualifications as an Expert

Ross's challenge to Duffy's qualifications is likewise unavailing. A court enjoys broad discretion in determining whether an expert is qualified. See United States v. Russo, 74 F.3d 1383, 1394 (2d Cir. 1996); Valentin v. N.Y. City, No. 94 CV 3911(CLP), 1997 WL 33323099, at *14 (E.D.N.Y. Sept. 9, 1997). "In considering a witness's practical experience and educational background as criteria for qualification, the only matter the court should be concerned with is whether the expert's knowledge of the subject is such that his opinion will likely assist the trier of fact in arriving at the truth." Valentin, 1997 WL 33323099, at *14.

Duffy is a partner with the financial consulting firm Bonadio & Co., LLP and "has extensive experience working on hundreds of engagements related to predictive cash flows and business valuation[.]" See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Preclude ("Def. Exp. Opp.") at 9, DE #116. In addition to being a Certified Public Accountant, Duffy has also been designated as an Accredited Business Valuator by the American Institute of Certified Public Accountants, as well as a Certified Valuation Analyst by the National Association of Certified Valuation Analysts. See id.

Despite Duffy's educational and professional experience, Ross seeks to preclude his opinions on the basis of his qualifications because, when asked at his deposition whether he considered himself to be "an expert about the pricing of clerkship rotations provided by hospitals to medical schools," he replied in the negative. See Pl. Exp. Mem. at 1, DE #99. At his deposition, however, Duffy also testified that he does consider himself an expert in the field of calculating the present value of expected future payments -- which forms the basis for his criticism of the third component of Davis's damage calculation. See Deposition Transcript of Anthony G. Duffy at 84, DE #117; see generally Duffy Report, DE #121. Further, courts in this Circuit liberally construe expert qualification requirements, and, as such, have not required preclusion solely because an expert "witness lacks expertise in the specialized areas directly pertinent" to the case. See Arista Records LLC v. Lime Grp. LLC, No. 06 CV 5936 (KMW), 2011 WL 1674796, at *3 (S.D.N.Y. May 2, 2011) (collecting cases); Sullivan v. Ford Motor Co., No. 97 Civ. 0593 (RCC), 2000 WL 343777, at *5 (S.D.N.Y. Mar. 31, 2000) ("One [who is] knowledgeable about a particular subject need not be precisely informed about all details of the issues raised in order to offer an opinion.") (internal quotations and citation omitted); Valentin, 1997 WL 33323099, at *15 ("[T]he lack of extensive practical experience directly on point does not necessarily preclude the expert from testifying."). Moreover, as defendants note in their opposition papers, Ross's own expert, Davis, admittedly has no prior experience evaluating medical school clerkships. See Def. Exp. Opp. at 10, DE #116. In fact, Ross fails to articulate why clerkship placements are so unique that the opinion of a general business valuation expert would be rendered unsuitable.

Finally, to the extent that Ross's challenge to Duffy's qualification as an expert is based on a critique of Duffy's methodology, see Pl. Exp. Mem. at 5-6, DE #99, these arguments are best left for the jury. See Clarke v. LR Sys., 219 F.Supp.2d 323, 333 (E.D.N.Y. 2002) ("Disputes about the strength of an expert's credentials, faults in the expert's decision to use a particular methodology, or the lack of textual authority for an expert's opinion 'go to the weight, not the admissibility, of his testimony.'") (citations omitted); Valentin, 1997 WL 33323099, at *15 ("Once the determination is made that a witness is properly qualified as an expert by training and experience, the weight to be accorded his testimony is a matter for the jury to decide."). While Ross may view Duffy's method as less reliable or accurate than that employed by Davis, nothing in the record reflects that Duffy was relying on "junk science" in reaching his conclusions, such that the Court should act as a gate-keeper for the jury. See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

Therefore, Ross's motion to preclude expert proof from ...


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