United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford United States District Judge
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
The Majority of Mr. Gregory's Testimony is not Lay
Rule of Evidence 701-Opinion Testimony by Lay
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).
Mr. Gregory characterized the reports he was asked to compile
(the "Gregory Reports") 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 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
A. I definitely took into account that it wasn't a
monthly transaction, that the region seemed to have that
A. Again, if documentation was provided, we might not be