Schatzki et al v. Weiser Capital Management, LLC et al, No. 1:2010cv04685 - Document 226 (S.D.N.Y. 2013)
Court Description: OPINION: The in limine motions of the rt S are granted in part and denied in part as set forth above. The action will be tried on January 15, 2014. Any additional pretrial matters will be address at a pretrial conference at noon on January 13,2014. (Signed by Judge Robert W. Sweet on 12/3/2013) (js)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - --------- ---------------------------x DEBRA SCHATZKI and BPP WEALTH, INC., Plaintiffs, -against- 10 Civ. 4685 OPINION WEISER CAPITAL MANAGEMENT, LLC, WEISERMAZARS, LLP and HOITSZ (A/K/A "CARIJN") MICHEL, Defendants. -- ---- -----------------------------x A P PEA RAN C E S: for Plaintiff LAWLER MAHON & ROONEY LLP 36 West 44th Street, Suite 1400 New York, NY 10036 By: Albert K. Lawler, Esq. Christopher S. Rooney, Esq. James J. Mahon, Esq. for Defendants STARK & STARK, P.C. 993 Lenox Dr Lawrenceville, NJ 08543 By: Scott I. Unger, Esq. Sweet, D.J. The Defendants evidence Plaintiffs have made a motion have to made be six presented similar at the in motions t al of limine and the with this respect to action. The disposition of these motions follows. The Plaintiffs' Motion With Respect To The Testimony Of Reich And Love Is Granted In Part And Denied In Part Hans-Linard Reich the Defendants to ("Reich") testify is an expert prof about whether Defendants red by had a justification for preventing the disclosure of confidential data to Schatzki following opinion witnesses to relating to the Regulation but not as to any ng conce This proposed testimony s of Regulation S-P. Reich may testify with relates to the ef respect to facts her termination. its application instruct the jury as because to "[iJt is not for applicable principles law, but for the judge." H of L.P. v. Schneider --~--------~--~--~--------------------- 379 F. Supp. 2d 461, 470 (S.D.N.Y. 2005) (quoting Marx & Co., Inc. v. Diners' Club Inc., 550 F.2d 505, 509-10 (2d Cir.), cert. denied, 2d 134 434 U.S. "u:] t is legal opinions, axiomat 861, 98 S. Ct. that legal 188, an expert conclusions, 54 L. is or not Ed. (1977)). admitted to provide interpret legal terms; those roles at 470. fall Under so Fed. ly with R. the province of the court." Id. Evid. 704, "an expert issue of fact within the jury's province, testimony stating ultimate legal may [but] conclusions opine on an he may not give based on those facts." U.S. v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991). In Marx & Co. v. Diners' 550 F.2d 505, the Second Circuit was presented with an appeal from a jury verdict in favor of the plaintiffs on a breach of contract claim arising from the defendant's alleged ilure to use its best ef rts to make for sold to the in part on a registration plaintiff effective, statement where the shares verdict that was it based rebuttal testimony from an expert in securities regulation. The Second Circuit held that the trial judge had properly permitted the expert to testify with regard to the practices and procedures ordinarily followed by attorneys and corporations in the course of filing a registration statement and following up with the SEC to ensure that it becomes effective. Marx & Co. v. Diners Club, 550 F.2d at 509. However, erred when the Circuit Court held that the trial allowed the practices of the securit expert to go beyond the court customary s industry and give his opinion as to the legal standards that he believed to arise from the parties' 2 contract and which he believed should have governed the defendant's conduct. Id. In the Court's words: Recognizing that an expert may testify to an timate fact, and to the practices and usage of a trade, we think care must be taken lest, in the field of securities law, he be allowed to usurp the function of the judge. In our view, the practice of using experts in securities cases must not be permitted to expand to such a point, and hence we must conclude that the leeway allowed to [the expert] was highly prejudi al to the appellant. Id. at 512. Reich's opinion as the to meaning and proper interpretation of the legal obligations imposed by Regulation S P, as they apply to the facts of this case are precluded. Victor J. damages. Love ("Love") is proffered with respect to He may testify as to matters contained in his reports but not as to matters which are not contained in his reports. Defendants' Motion To Bar Testimony Of Schatzki And Edelman With Respect To BPP Wealth Inc. Is Denied Defendants seek to bar the testimony of Debra Schatzki ("Schatzki") Relevance is and Brian Edelman the principal ("Edelman") obj ection 3 to on the value of BPP. the testimony of its owners with respect to the value of BPP Wealth, entity formed Defendants. by Schatzki According to prior the to her ("BPP"), an relationship Plaintiff, marks and processes to the Defendants. Inc. BPP with licensed The history, the certain background and value of BPP are relevant to Plaintiffs' damage contentions. Defendants' Motion To Bar The Report Of Childs Is Denied Richard expert by Childs Plaintiffs ("Childs") with respect has to been proffered damages. as Defendants an have moved to bar his testimony under Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), on the grounds that his testimony is based on gross receipts, an unreliable accounting method, his testimony is disconnected from the cts of the case and Childs time periods. The Defendants' adequacy of the testimony. led to consider the relevant contentions go to the weight and However, it has not been established that Childs is unqualified as a C.P.A. to testify. The motion to bar his testimony is denied. The Defendants' Motion To Inquire Into The Indictment Of Childs Is Denied Defendants seek leave under Fed. R. d. 608 (b) to cross examine Childs concerning an indictment in 1990 involving 4 an alleged fraud in connection with a Newark, Inc. According to Childs, expunged and sealed. Childs furniture store, Supreme the indictment was dismissed, omitted his employment at Supreme Newark, Inc. from his resume. The indictment occurred more than twenty years ago and did not result in a conviction. Childs deposition that he omitted the employment testified may cross-examine were brought against him Childs in ago rms. with the omission of his employment at Supreme Newark, charges his thirty-two-years as not relevant to the work he currently per Defendants in respect Inc. connection to and that with that employment. The nature of the dismissed and expunged charges is un i y prejudicial and will be barred from the cross- examination. Defendants' Motion To Exclude Plaintiff's Exhibit 147 Is Denied Defendants 147 as (a/k/a attached have moved to exclude is one-page email from Defendant ("Michelli ) to Schatzki to hearsay. It Carijn) Michel a summary of a expenses attributed ("Berlin"), former CEO of WCM. Michel testi 5 Plaintiffs' to Exhibit Hortsz which Jordan Be is in ed she prepared the summary by 2008. listing Beech ion ---"---- based on the Cinema, expenses Inc. v. Twentieth (2d Cir. 622 F.2d 1106 business in WCM accounting 1980), records are records Century-Fox for Film held that "summa admissible on the s issue of provides that an evidence of its damages." Id. at 1110. In original content addition, writing is is Fed. not admissible would be offered (i) if required the at trial, 1004 (c) and party other against whom has control of the original, notice that the content of the proof Evid. R. and (iii) the (ii) original is put on gina 1 would be the subject of 0 fails to produce the original at that at the trial. Plaintiffs have put trial of this action, 147, which is information a that Defendants they intend to offer P summary prepared by one is contained maintained by another Defendant business, is and as on notice such and an admission of a the in in the admissible party-opponent of intiffs' t Exhibit Defendants accounting of records ordinary course of both a record as for the business reasons that its are discussed above. If the Defendants wish to dispute the content and accuracy Plaintiffs' original of records of the Exhibit amounts 6 147, paid to they or can provide the attributable to Jordan lin In 2008 at the trial. A.F.L. Kalck, (S.D.N.Y. S.p.A. 1989) v. cf. i E.A. party, if opponent the had Co., Cinema, R. 722 Inc., Evid. F. of over the 622 the writing document, F.2d can that the document, secondary dence 12, at 16 1110 opposing show the demanded he that the document from the opponent and that the opponent has produce 1004 (c) ; Supp. last in the control of proponent control Karay Beech (" [W] here that writing was See Fed. may be failed to used to illustrate the existence of the document."). Defendants' motion to exclude Plaintiffs' Exhibit 147 is denied. Defendants' Motion To Exclude The Testimony Of Donnelly Is Granted In Part And Denied In Part Defendants have moved to exclude the Donnelly, the CPA grounds engaged in conclusion; ("Donnelly"), that a his op Plainti ffs I ion that ip quasi-partne his opinion on or the testimony of Ed expert WCM and the to damages I on Plaintiffs were joint venture loss represented reconstruction of the SmartOffice database is of on is a in legal the sed on opinions Iman, an interested layperson; and his opinion of the cost re-hire and re-train WCM workforce 7 is flawed in that, as a matter of law, an employee cannot sue for training given to the workforce based on unjust enrichment. Testimony by Donnelly characterizing the of the Plaintiffs and Defendants as a relationship joint venture or quasi partnership will be excluded as inappropriate legal opinion. Donnelly's valuation of the SmartOffice database using cts provided by Edelman will be permitted. Given that no basis has been established for an unjust en chment claim against WCM resulting from Schatzki's training s employees, testimony by Donnelly on that subject will be barred. Defendants' testimony is with motion respect granted in part and denied above. 8 to in part Donnelly's as set forth Conclusion The in limine motions of the part and denied in part as set rt S are granted rth above. The action will be tried on January 15, 2014. Any additional pretrial matters will be addres at a pretrial conference at noon on January 13, 2014. It is so ordered. New York, NY December3 , 2013 ROBERT W. SWEET 9
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