Commercial Litigation and Arbitration

Expert Testimony Need Not be “Complicated,” Just Helpful — “Basic Math” Damages Testimony Admissible under 702 — Alternatively, under 1006 as Summary

From WWP, Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579 (8th Cir. Jan. 12, 2011):

In a motion in limine, WWFS asked the district court to bar Kirchner from testifying at trial. WWFS argued Kirchner's testimony did "not meet the helpful requirement of Fed. R. Evid. 702 and Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)], and therefore, should be excluded." WWFS stressed Kirchner made only simple mathematical calculations to arrive at his damages calculation***.

The district court denied WWFS's motion, finding Kirchner relied on his experience as a forensic accountant, "analyz[ed] a substantial amount of financial data," and applied reliable methods in forming opinions that would help the jury understand the evidence. The district court averred WWFS's "challenges to[]Kirchner's failure to consider and account for certain factors goes to the weight of his testimony rather than admissibility."***

There is not, as WWFS suggests, an implicit requirement in Fed. R. Evid. 702 for the proffered expert to make complicated mathematical calculations. See In re Prempro Prods. Liab. Litig., 514 F.3d 825, 831 (8th Cir. 2008) (holding district court did not abuse its discretion in failing to exclude expert testimony that represented "an exercise in basic math using simple deductive reasoning"). Forensic accountants routinely rely, "surely to no one's surprise, on the books and records and financial information . . . provided." Forklifts of St. Louis, Inc. v. Komatsu Forklift, USA, Inc., 178 F.3d 1030, 1035 (8th Cir. 1999). WWFS's attacks on Kirchner's methodology lack merit.

[Footnote 7] Responding to a similar argument, in which a party argued proffered expert testimony was inadmissible under Fed. R. Evid. 702 because the expert "merely perform[ed] 'simple math calculations . . . which the average sixth-grader would be able to perform when equipped with a calculator, pencil and paper,'" one federal judge aptly observed:

[W]hat is a simple mathematical computation to one person may be mind-numbingly complicated to another. [I]f these calculations are as simple as defendants suggest they are . . . , then those jurors who are mathematically knowledgeable will immediately so recognize and wonder why the plaintiffs utilized a CPA to prove the obvious.

Arnold v. Ambulance Serv. of Bristol, Inc., No. 2:06-CV-105, 2007 WL 5117409, *1 (E.D. Tenn. Aug. 21, 2007).

And even if Kirchner's testimony were inadmissible under Fed. R. Evid. 702 because it was too straightforward, it was admissible under the purpose and rationale of Fed. R. Evid. 1006 (summaries of voluminous writings). See SEC v. Amazon Natural Treasures, Inc., 132 F. App'x 701, 703 (9th Cir. 2005) (unpub. mem. op.); cf. United States v. Jennings, 724 F.2d 436, 441-43 & n.8 (5th Cir. 1984).

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