Expert Report Is Not “Talisman against Summary Judgment” — Expert Is “Entitled to His Opinion” But Expert’s View of Facts Doesn’t Preclude Summary Judgment (Good Quotes)

Dalberth v. Xerox Corp., 2014 U.S. App. LEXIS 17357 (2d Cir. Sept. 8, 2014):

2. The Interaction Between the Daubert and Summary Judgment Rulings

We also address briefly Plaintiffs' assertion that, having qualified Saunders as an expert, summary judgment should not have been granted. Despite Plaintiffs' protestations, the district court's Saunders Ruling is not contradicted by its later summary judgment opinion. Rather, the substance of the Saunders Ruling was that the court: (1) accepted Saunders's proffered methodology, 746 F. Supp. 2d at 411-12; (2) concluded that "Prof. Saunders could show that the alleged corrective disclosures contained new information that was material," id. at 412; and (3) decided that Saunders relied on an "approach that is recognized in the literature," id. at 413-14. Properly read in context, the district court's conclusion that "Prof. Saunders could show that the alleged corrective disclosures contained new information that was material," id. at 412 (emphasis added), was not a decision that, as a matter of law or fact, Saunders had established anything at that point in the litigation. Further, it is not clear that the district court was considering the full summary judgment record when deciding the Daubert motions.

"The court performs the same role at the summary judgment phase as at trial; an expert's report is not a talisman against summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). While it is perhaps uncommon for the court to have credited the expert's opinion in a Daubert ruling only to grant summary judgment without any discussion of that expert's opinion, "summary judgment is not per se precluded because there are conflicting experts." In re Omnicom Grp., 597 F.3d at 512. An expert may be entitled to his opinion, but he is not entitled to a conclusion that his view of the facts necessarily precludes summary judgment. Here, because we conclude that the information about the CBO Reorganization's negative effects on operations and sales was known to the market prior to September 16, 1999, Professor Saunders's opinion about the corrective disclosures is, "as a matter of law, unsustainable on this record." See id. at 513.


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