United States District Court, E.D. Arkansas, Western Division
KRISTINE G. BAKER, District Judge.
There are several matters currently pending before the Court regarding the parties' respective witnesses and motions in limine. Three motions are ripe-Welsco's motion to strike Mr. Brace's expert Joe L. Wohlgemuth (Dkt. No. 60), Mr. Brace's motion to exclude testimony on damages from Adam Kohler (Dkt. No. 66), and Mr. Brace's motion to strike, or in the alternative, objections to the consideration of, Mr. Kohler's affidavit (Dkt. No. 86). Six other motions-Mr. Brace's five motions in limine (Dkt. Nos. 94, 97, 100, 103, 111) and Welsco's motion in limine (Dkt. No. 106)-are not ripe in in that neither party responded to the other's motion or motions in limine after the Court continued the trial of this case.
I. Welsco's Motion To Strike Joel L. Wohlgemuth
The Court first considers Welsco's motion to strike Mr. Brace's expert Joel L. Wohlgemuth (Dkt. No. 60). Mr. Brace has responded (Dkt. No. 82), and Welsco has replied (Dkt. No. 119). Mr. Brace states in his expert disclosures that Mr. Wohlgemuth, an attorney, will provide testimony "regarding whether Oklahoma law applies to the issues in this case and whether the non-compete provisions of Plaintiff's agreement with Defendant [are] valid and enforceable under Oklahoma law and, more particularly, whether it was reasonable under the circumstances for Defendant to believe Oklahoma law would apply to his employment agreement." (Dkt. No. 60-1, at 3). Mr. Wohlgemuth's expert report lists his opinions that Oklahoma's choice-of-law principles govern this case, the non-compete is unenforceable under Oklahoma law, and it was reasonable for Mr. Brace to believe Oklahoma law would apply and invalidate, at a minimum, the noncompete portion of the employment agreement (Dkt. No. 60-2).
Welsco moves to strike Brace's designation of Mr. Wohlgemuth and to preclude Mr. Wohlgemuth from testifying at trial or any hearing in this matter. Welsco argues that Mr. Wohlgemuth's proposed testimony is improper because it purports to instruct the Court as to the applicable law. The Court agrees, at least in regard to the first two matters on which Mr. Wohlgemuth proposes to opine. Further, Mr. Brace has not made the case as to why testimony as to the third matter on which Mr. Wohlgemuth proposes to opine-whether it was reasonable under the circumstances for Mr. Brace to believe Oklahoma law would apply to his employment agreement-is relevant or admissible. Without more, the Court will not permit Mr. Wohlgemuth to testify as to this matter. For these reasons, at this time, the Court will not permit Mr. Wohlgemuth to testify at any hearings or the trial of this case.
The issue of the appropriate choice of law is a question of law for the Court. See Jones v. Winnebago Indus., Inc., 460 F.Supp.2d 953, 959 (N.D. Iowa 2006) (citing cases). This Court has ruled that Arkansas law governs this case. Even if there were predicate facts to be determined by the jury on the choice-of-law issue, Mr. Wohlgemuth's testimony would be improper. Expert testimony on a legal conclusion will not assist the trier of fact and, therefore, is inadmissible. Berg v. Johnson & Johnson, 940 F.Supp.2d 983, 1000 (D.S.D. 2013) (citing United States v. Wells, 63 F.3d 745, 753 (8th Cir. 1995) ("[I]nstruction on the law is the function of the court, not a defense expert."), rev'd on other grounds, 519 U.S. 482 (1997); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) ("The legal conclusions were for the court to make. It was an abuse of discretion to allow the testimony.")); see also United States v. Cross, 113 F.Supp.2d 1282, 1285 (S.D. Ind. 2000) (stating that allowing an attorney to offer expert opinion on the ultimate issue of law would allow the jury to infer that it could look to the expert for legal guidance); Pivot Point Int'l, Inc. v. Charlene Products, Inc., 932 F.Supp. 220, 225 (N.D. Ill. 1996) (excluding expert testimony on whether certain items were copyrightable and stating that "in a trial there is only one legal expert-the judge.").
In his response, Mr. Brace denies that Mr. Wohlgemuth's testimony is intended to instruct the Court or the jury as to the law or otherwise tell the Court or the jury what conclusions to reach. Rather, Mr. Brace contends that Mr. Wohlgemuth's testimony will assist the jury in considering whether it was reasonable for Mr. Brace to rely on his attorney's advice that Oklahoma law governed the noncompete agreement. Mr. Brace fails to explain how this is relevant to any issue the jury will be called to decide. Moreover, if for some reason the jury is called upon to make any reasonableness determinations, Mr. Wohlgemuth's testimony may impermissibly instruct the jury as to what conclusion to reach. See United States v. Klaphake, 64 F.3d 435, 438-39 (8th Cir. 1995) (upholding the district court's ruling excluding testimony by a lawyer as to the legality of a trust agreement where the defendant asserted a defense of reasonable reliance).
The Court grants Welsco's motion to the extent Welsco seeks to exclude Mr. Wohlgemuth's testimony. For these reasons, at this time, the Court will not permit Mr. Wohlgemuth to testify at any hearing or the trial in the case.
To the extent Welsco moves to strike Mr. Brace's expert designation of Mr. Wohlgemuth, the motion is denied. Welsco has not explained why Mr. Brace's designation of Mr. Wohlgemuth should be stricken. Welsco does not argue that Mr. Brace failed to disclose timely Mr. Wohlgemuth or committed some other discovery violation that would merit striking Mr. Wohlgemuth's designation.
II. Mr. Brace's Motion To Exclude Testimony On Damages From Adam Kohler
The Court next considers Mr. Brace's motion to exclude testimony on damages from Mr. Kohler (Dkt. No. 66), along with Welsco's response (Dkt. No. 90), and Mr. Brace's reply (Dkt. No. 125). Welsco has identified Mr. Kohler, Welsco's Chief Operating Officer ("COO") and former Chief Financial Officer ("CFO"), as Welsco's corporate representative who will testify to the issue of Welsco's damages allegedly caused by Mr. Brace's actions.
Mr. Brace argues that Mr. Kohler is not qualified to provide expert testimony or any other type of testimony with respect to Welsco's alleged lost profits and that Mr. Kohler's testimony and calculations of Welsco's alleged lost profits are fundamentally flawed and do not meet the level of reliability required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the outset, the Court notes that Welsco did not specifically identify Mr. Kohler as an expert witness. Rather, Mr. Brace has raised the issue and characterized Mr. Kohler as an expert, apparently in order to raise his expert witness challenges, as Mr. Brace incorrectly suggests that Welsco is required to present expert testimony on damages. That said, Welsco has responded that Mr. Kohler's testimony is admissible either as lay opinion testimony under Rule 701 of the Federal Rules of Evidence or as expert testimony under Rule 702.
As stated in the Court's Opinion and Order on the parties' motions for summary judgment, the Court agrees with Welsco that Mr. Kohler is qualified under Rule 701 to give lay opinion testimony regarding Welsco's alleged damages. The Court will address Mr. Brace's arguments under Rule 702, to the extent that Welsco has responded and asserted that Mr. Kohler's testimony is also proper under Rule 702.
Mr. Brace first argues that Mr. Kohler is not qualified to give to expert testimony. Rule 702 provides in part that a witness may qualify as an expert "by knowledge, skill, experience, training, or education." Fed.R.Evid. 702. Mr. Brace argues that Mr. Kohler currently is not qualified to render an opinion as a Certified Public Accountant ("CPA") because his CPA license expired over a decade ago and because he has not satisfied the minimum educational requirements for maintaining an active CPA license. Setting aside for the moment that Welsco has not disclosed Mr. Kohler as a retained-CPA expert, Mr. Brace has offers no legal ...