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Ferrari Club of America, Inc. v. Bourdage

United States District Court, W.D. New York

April 25, 2017

FERRARI CLUB OF AMERICA, INC., Plaintiff,
v.
LEON BOURDAGE, Defendants.

          DECISION AND ORDER

          Elizabeth A. Wolford United States District Judge

         INTRODUCTION

         Defendant Leon Bourdage ("Defendant") has filed a motion in limine to exclude the testimony and reports of Shawn Gregory. (Dkt. 97). The Ferrari Club of America, Inc. ("Plaintiff or "FCA") intends to present Mr. Gregory to provide testimony at trial. (See Dkt. 77; Dkt. 79 at 4-5). Mr. Gregory is a certified public accountant retained by Plaintiff to "perform financial audits of two separate bank accounts [to which] Defendant had access [ ] during his tenure as Chairperson of the 2007 National Meet, and as Chairman of the FCA's Empire State Region ("ESR") from 2009-2010." (Dkt. 79 at 5). Plaintiff anticipates that Mr. Gregory will testify as to the "procedures he employed in gathering relevant information and documentation in connection with the financial audits, along with his findings and conclusions." Id. He will also testify about "Defendant's failure to cooperate with his efforts to obtain relevant information and documentation in connection with the aforementioned financial audits." Id. For the reasons set forth below, this Court finds that Mr. Gregory may testify as a lay witness and he may testify as a summary witness. However, he may not provide expert testimony.

         DISCUSSION

         I. The Majority of Mr. Gregory's Testimony is not Lay Testimony

         Federal Rule of Evidence 701-Opinion Testimony by Lay Witnesses-provides:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701. Subsection (c) was appended in 2000 and the Rule was "amended to eliminate the risk that the reliability requirements set forth in Rule 702 [Testimony by Expert Witnesses] [would] be evaded through the simple expedient of proffering an expert witness in lay witness clothing." Fed.R.Civ.P. 701 advisory committee's note to 2000 amendment. Under this new version of the Rule, "if an 'opinion rests "in any way" upon scientific, technical, or other specialized knowledge, its admissibility must be determined by reference to Rule 702, not Rule 701.'" DVL, Inc. v. Niagara Mohawk Power Corp., 490 F.App'x 378, 381 n.3 (2d Cir. 2012). Thus, to qualify under Rule 701, the opinion should be based on the "reasoning processes familiar to the average person in everyday life." United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005).

         Here, Mr. Gregory characterized the reports he was asked to compile (the "Gregory Reports"[1]) as "a little bit different" from typical bookkeeping. (Dkt. 97-4 at 6). He stated that it was a "write-up of taking financial information and putting it into a financial statement format, balance sheet, profit and loss, and then ... as best [he] could, determining the expenses and categorizing them and then providing information to the executive committee as far as [his] findings." (Id. at 6-7). He described this project as "a little more detailed than what [he does] for other businesses" because he was "asked to analyze a little bit more [due to] the fact that [he was not] provided any information, any receipts, so [he] had to provide [his] professional opinion." (Id. at 7). Mr. Gregory's professional opinion as a certified public accountant is not an opinion formed on the basis of reasoning processes familiar to the average person. See, e.g., Wechsler v. Hunt Health Sys., Ltd., 198 F.Supp.2d 508, 529 (S.D.N.Y. 2002) (finding that an accountant's statement beginning with "In my understanding as a Texas certified public accountant . . ." was "clearly an opinion based upon his expert knowledge."). Other excerpts from Mr. Gregory's deposition[2] indicate as much as well. For example, Mr. Gregory categorized four transactions relating to telephone charges as suspect because they were inconsistent:

Q. If you look at the next page for telephone, this is on P000603, it looks like there are four separate transactions that were identified in the report, and I assume these were put in the report because there was no documentation substantiating the expense, correct?
A. There's no documentation, plus they are so inconsistent, there were only four of them in four years, that it seemed out of line to have telephone expense running through the club.
Q. So you took into consideration that there wasn't a-like a monthly or weekly-type payment, it was kind of spread out?
A. I definitely took into account that it wasn't a monthly transaction, that the region seemed to have that expense.
Q. Okay.
A. Again, if documentation was provided, we might not be having ...

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