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Ferrell v. Turner

United States District Court, S.D. Mississippi, Northern Division

March 6, 2018

WAYNE E. FERRELL, JR.; JAMES W. NOBLES, JR.; and ANGELO DORZIAS PLAINTIFFS/ COUNTER-DEFENDANTS
v.
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

          ORDER

          HENRY T. WINGATE UNITED STATES DISTRICT COURT JUDGE

         BEFORE 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].

         By his 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">[1], 703[2], and 704[3]. Turner also says that Corlew's Expert Report fails to comply with F.R.C.P. 26(a)(2)[4] because it does not identify with specificity which agreement he relied upon to formulate his opinion.

         The 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.

         I. Federal Rules of Evidence

         In discussing Rule 702 of the Federal Rules of Evidence, the United States Fifth Circuit Court of Appeals has clearly established that:

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. 1997).

[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. 1988).

         The 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 report.

         This 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).

         II. Federal Rule of Civil Procedure 26(a)(2)

         This 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 ...


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