United States District Court, S.D. Mississippi, Northern Division
WAYNE E. FERRELL, JR.; JAMES W. NOBLES, JR.; and ANGELO DORZIAS PLAINTIFFS/ COUNTER-DEFENDANTS
TAB TURNER a/k/a C. TAB TURNER, CLYDE TALBOT TURNER, CLYDE T. TURNER, CLYDE TAB TURNER and TAB CLYDE TURNER, and TURNER & ASSOCIATES, P.A. DEFENDANTS/ COUNTER-PLAINTIFFS
T. WINGATE UNITED STATES DISTRICT COURT JUDGE
THIS COURT is Turner's Motion to Exclude John G. Corlew
(hereinafter referred to as “Corlew”) as an
Expert Witness [Docket no. 188]. Corlew is
an attorney duly authorized to practice law in Mississippi
since 1968. [Docket no. 147-1].
motion, Turner asks this court to exclude Corlew as an expert
witness because Corlew's expert report contains
statements or opinions that are not permitted under Federal
Rules of Evidence 7021" name="FN1" id=
"FN1">, 703, and 704. Turner also says that
Corlew's Expert Report fails to comply with F.R.C.P.
26(a)(2) because it does not identify with
specificity which agreement he relied upon to formulate his
plaintiffs oppose Turner's motion saying that
Corlew's expert report complies with with Federal Rules
of Evidence 702, 703, and 704 and F.R.C.P. 26.
Federal Rules of Evidence
discussing Rule 702 of the Federal Rules of Evidence, the
United States Fifth Circuit Court of Appeals has clearly
We agree that merely being a lawyer does not disqualify one
as an expert witness. Lawyers may testify as to legal matters
when those matters involve questions of fact. See e.g.,
Huddleston v. Herman & MacLean, 640 F.2d 534, 552 (5th
Cir. Unit A March 1981), aff'd in part, rev'd in part
on other grounds, 459 U.S. 375, 103 S.Ct. 683');">103 S.Ct. 683, 74 L.Ed.2d 548
(1983)(lawyer could testify that language in a boilerplate
contract was standard because the effect of the language went
to scienter). However, “it must be posited as an a
priori assumption [that] there is one, but only one, legal
answer for every cognizable dispute. There being only one
applicable legal rule for each dispute or issue, it requires
only one spokesman of the law, who of course is the
judge.” Specht v. Jensen, 853 F.2d 805, 807 (10th
Cir.1988) (internal citations omitted).
Askanase v. Fatjo, 130 F.3d 657');">130 F.3d 657, 672-73 (5th Cir.
[A]n expert's testimony is proper under Rule 702 if the
expert does not attempt to define the legal parameters within
which the jury must exercise its fact-finding function.
However, when the purpose of testimony is to direct the
jury's understanding of the legal standards upon which
their verdict must be based, the testimony cannot be allowed.
In no instance can a witness be permitted to define the law
of the case.
Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir.
plaintiffs fail to address either Askanase v. Fatjo,
130 F.3d 657');">130 F.3d 657, 672-73 (5th Cir. 1997) or Specht v.
Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988). Instead,
says the plaintiffs, “[i]n Huss v. Gayden, the
5th Circuit held that, ‘Experts qualified by
‘knowledge, skill, experience, training or education
may present opinion testimony to the jury'' Huss
v. Gayden, 1 F.3d 442');">571 F.3d 442, 452 (5th Cir. 2009) (citing Fed
R. Evid. 702).” Further, says the plaintiffs,
“Federal Rule of Evidence 704 states, ‘An opinion
is not objectionable just because it embraces an ultimate
issue'. Fed R. Evid. 704.” This court is
unpersuaded by the plaintiffs' cursory treatment of
Turner's challenge to Corlew as an expert witness and his
court has reviewed Corlew's expert report and finds that
it clearly invades the province of the court and the jury.
[Docket no. 147-1]. Corlew's expert report opines about
several issues of ultimate fact which the finder of fact must
determine and uses Corlew's legal conclusions to do so.
For example, in his report Corlew opines “[t]he Fee
Sharing Agreement is a binding contract” and [e]ach of
the Plaintiff counsel in the Fee Sharing Agreement owed
fiduciary duties to the other counsel.” [Docket no.
147-1, P. 4]. Corlew's opinions touch all the various
legal issues in this matter: the existence of a contract; the
breach of fiduciary duty; the breach of good faith and fair
dealing; Turner's ethical obligations; that the Fee
Sharing Agreement excludes payment of expenses to Turner; and
that Turner breached both the contract and the fiduciary duty
he owed to the plaintiff. This court cannot allow
Corlew's expert opinion as it runs afoul of the Federal
Rules of Evidence and Askanase v. Fatjo, 130 F.3d
657, 672-73 (5th Cir. 1997).
Federal Rule of Civil Procedure 26(a)(2)
court is unpersuaded by Turner's argument that
Corlew's report fails to comply with F.R.C.P. 26(a)(2).
Turner alleges that Corlew's report states that he relied
upon a Fee Sharing Agreement “executed by all plaintiff
counsel pursuant to the contract and assignment” but it
is unclear which agreement to which Corlew is referring.
Allegedly, there are three (3) different agreements which are
at the heart of the the lawsuit sub judice: the Fee
Split Agreement; the Fee Sharing Agreement; and the
Contingent Fee Agreement. Turner and the plaintiffs signed
the Fee Split Agreement. The plaintiffs retort that
Corlew's Expert Report clearly indicates that he relied
upon the Fee ...