Commercial Litigation and Arbitration

Experts: Under Daubert, Court Evaluates Methodology, Not Conclusion — Reliance on Other Expert — Substantial Justification/Harmless Error Factors — Where Supplemental Opinion Decreases Damages, Opponent Not Impermissibly Blindsided

Bresler v. Wilmington Trust Co., 2017 U.S. App. LEXIS 6880 (4th Cir. April 20, 2017) (majority opinion):

In this appeal, we consider breach of contract claims brought by Fleur Bresler (Fleur) and her son, Sidney Bresler (Sidney) (collectively, the plaintiffs), as Co-Personal Representatives of the Estate of Charles S. Bresler (the Estate). A jury determined [*2]  that defendants Wilmington Trust Company and Wilmington Brokerage Services Company (collectively, Wilmington) breached an agreement to lend money for the acquisition, maintenance, and certain investments relating to life insurance policies obtained for Charles S. Bresler (Charlie)1 and his wife, Fleur. The jury awarded the plaintiffs around $23 million in damages. The district court determined post-trial that Wilmington also had breached an agreement to return certain funds to the Estate upon Charlie's death, and ordered Wilmington to return those funds in accordance with the parties' agreement.

1   In accordance with the naming conventions in the plaintiffs' brief, we refer to Charles Bresler as "Charlie."

Wilmington appeals, arguing that: (1) the district court erred in admitting testimony from the plaintiffs' expert witness; (2) the jury verdict, including the jury's award of damages, was not supported by the evidence; and (3) additional terms of the district court's order also were not supported by the evidence. Upon our review, we affirm the district court's judgment.



We state the evidence in the light most favorable to the plaintiffs, the prevailing parties at trial. See King v. McMillan, 594 F.3d 301, 306 (4th Cir. 2010). The evidence at trial showed that the parties' dispute involved an estate-planning strategy known as "premium financing." [*3]  In the particular type of premium financing at issue here, an individual establishes an Irrevocable Life Insurance Trust (ILIT), which acquires one or more life insurance policies and pays the insurance premiums with loans obtained from a third-party lender. Each insurance policy consists of two components: (1) the face value of the policy, and (2) an investment component whereby the death benefit, or the amount that is paid to the insurance beneficiaries when the insured dies, increases if the policies retain excess funds above those required to cover the cost of the insurance and related expenses.

The process of investing in the insurance policies by making payments exceeding the minimum required amount is known as "overfunding." Through this technique, the policy funds grow because the insurance company pays interest on the policies acquired by the ILIT at a specified crediting rate. The goal of overfunding is to borrow from the third-party lender at an interest rate that is lower than the crediting rate, which causes the value of the policies to grow more quickly than the amount of the debt incurred.

During this process of overfunding, the funds in the policies accrue without being [*4]  subject to taxation.2 After the insured dies, the insurance company pays a portion of the death benefit from the policies to the third-party lender to repay the ILIT's outstanding loans, and thereafter pays the remainder of the death benefit to the ILIT, also without being subject to taxation. After the loans are repaid, the funds remaining in the ILIT, known as the "net-in-trust," pass tax-free to the ILIT's beneficiaries.

2   The funds in the policies that exceed the cost of insurance constitute the "account value."


Charlie was a successful entrepreneur in the Washington, D.C. area, and was a co-founder and Chairman of the Board of Directors of Bresler & Reiner, Inc. (B&R), a publicly traded company engaged in real estate development and commercial property management.3 By 2003, Charlie was 75 years old and had established a net worth of $150 million.

3   Charlie's son, Sidney, held various officer-level positions at B&R, and became the company's CEO in 2005.

In 2002, Wilmington began development of a premium financing product. Wilmington and B&R had a prior business relationship, and in 2003, a Wilmington employee who had been managing Wilmington's relationship with B&R introduced Edmond Ianni, a Wilmington corporate vice president, to Charlie's attorney, Larry Shaiman. In March 2003, aware of Charlie's significant assets, Ianni and another Wilmington account executive approached Shaiman [*5]  to discuss the possibility of Wilmington developing for Charlie and Fleur a "tax-saving wealth creation and preservation strategy."

Throughout Shaiman's and Charlie's discussions with Ianni, Charlie expressed reservations about entering into an arrangement that would require him to post a significant amount of collateral. During the course of their conversations, Ianni sent Charlie and Shaiman spreadsheets detailing net-in-trust projections to be derived from a premium financing arrangement. Unlike the spreadsheets Wilmington frequently used with other customers, the spreadsheets Ianni sent to Charlie omitted a column identifying payments of collateral. On November 10, 2003, Ianni sent Shaiman an email stating that any collateral Wilmington required from Charlie would be "minimal," because "the value of the . . . trust's . . . main asset (namely, the significant, growing cash value of the policy, as well as the increasing death benefit) is substantial; that, as you know, will serve as the significant source for satisfaction of the trust's outstanding loan to [Wilmington]."

Eleven days later, on November 21, 2003, Ianni sent Charlie a letter (the November 21 letter) detailing a proposed [*6]  premium financing arrangement, in which Wilmington would lend to an ILIT established by the Breslers (the Trust) "the annual premium plus allowable overfunding ($5.5 million) to acquire and maintain" several "second-to-die" life insurance policies4 for Fleur and Charlie with a combined face value of $50 million. The November 21 letter proposed a "blended fixed" crediting rate of 5.675 percent, and a "favorable" interest rate of 1.5 percent above LIBOR5 "on terms required by the lender." Wilmington projected that after Fleur and Charlie both died, the net-in-trust would be between "$40.6 million to over $45.5 million," with tax savings of between "$24.5 million to over $115 million."

4   In a "second-to-die" life insurance policy, the insurer pays the death benefit to the policy beneficiaries upon the death of both insureds.

5   The London Interbank Offered Rate, or LIBOR, is a fluctuating benchmark interest rate used by several banks around the world. Investopedia, (last visited Jan. 27, 2017).

In the November 21 letter, Ianni also attempted to clarify "any misunderstanding of the collateral pledge aspect" of the arrangement. According to Ianni, Wilmington would require from Charlie a collateral pledge amount of between $2.9 and $4.2 million in the first year. Ianni indicated that "[t]he amount of the needed collateral going forward obviously will depend in part on the aggregate cash surrender value of the trust's assets (namely, of the insurance) and will be reviewed periodically." Charlie rejected the [*7]  requirements for collateral stated in the November 21 letter, based on his understanding that the parties already had agreed that ongoing payments of collateral would not be required.

After further negotiations, in January 2004, Wilmington and Charlie executed three written agreements: (1) an irrevocable life insurance trust agreement (Trust Agreement) establishing the Trust; (2) an investment management agreement establishing an investment management account; and (3) a collateral pledge agreement. The Trust Agreement named Wilmington as trustee and the five children of Fleur and Charlie, including Sidney, as the Trust's beneficiaries.

The parties dispute whether Charlie and Ianni ultimately agreed that Charlie would make ongoing collateral payments. However, Charlie made an initial collateral payment to Wilmington in the amount of $3.7 million, for deposit into the investment management account. Wilmington later loaned funds to the Trust to acquire three "second-to-die" life insurance policies for Charlie and Fleur, with a combined face value of $50 million, and overfunded the policies in 2004.


The events culminating in the present litigation occurred in 2005, after the first year [*8]  of overfunding had concluded.6 At that time, Wilmington informed Charlie that he was required to post additional collateral before Wilmington would provide another $5.5 million loan to the Trust to cover the cost of the insurance premiums and overfunding contributions. Charlie rejected Wilmington's demand, and maintained that the parties' agreement required only that he provide the initial $3.7 million payment of collateral. Because the parties could not resolve their differences concerning the posting of collateral, Charlie provided an additional $1.3 million in collateral to prevent the policies from lapsing. Those funds were placed in the investment management account.

6   Also in 2005, Wilmington terminated Ianni, stating, among other things, that he had "lost credibility" and had "engaged in questionable sales practices."

Accordingly, in 2005, Wilmington lent the Trust $702,338 to cover only the cost of the life insurance premiums, and did not overfund the policies after 2004. However, the parties continued in their efforts to resolve the issue regarding additional collateral payments until 2007, when Wilmington stopped making any payments for the policies. At that time, Wilmington and Charlie entered into a series of tolling agreements memorializing their dispute "regarding the process by which the structure and proposal of the insurance [*9]  program was portrayed by agents of [Wilmington]," and agreeing to maintain their rights to take legal action if negotiations proved unsuccessful.

Around the same time, Ianni sued Wilmington in Delaware state court, seeking allegedly outstanding commissions. In that suit, Wilmington filed a counterclaim asserting that Ianni had misrepresented to certain Wilmington customers, including Charlie, the requirements for posting collateral related to the life insurance trust agreements.

In September 2009, Charlie and his son, Sidney, filed suit against Wilmington in Maryland state court alleging breach of contract, negligence in managing the Trust and the life insurance policies, breach of fiduciary duty, negligent misrepresentation, fraud, and violation of the Delaware Consumer Fraud Act relating to Wilmington's failure to overfund the policies.7 Wilmington removed the case to federal district court in November 2009, based on diversity jurisdiction under 28 U.S.C. § 1332.

7   Highland Capital Brokerage (Highland), a Highland representative, Ianni, and two other Wilmington employees also were named as defendants in the action. The district court later dismissed the claims against Ianni. The claims against the Highland representative eventually were dismissed, and Highland later was dismissed through a settlement agreement. The other two Wilmington employees remain parties to the litigation.

At around the same time, in October 2009, Fleur and Charlie obtained term life insurance policies on Fleur's life (the replacement policies), because Fleur and Charlie were concerned that Wilmington would allow their original policies to lapse. [*10]  The replacement policies carried a fixed death benefit of $17.5 million, had no investment component, and required an annual premium payment of between $1.4 and $1.5 million.

In early 2010, Wilmington resumed lending the Trust enough money to make the minimum premium payments. Charlie died in October 2010, and Sidney and Fleur, as personal representatives of Charlie's estate, became the plaintiffs in the present litigation. In February 2012, Sidney sent a letter to Wilmington demanding that it terminate the investment management agreement and return to Charlie's estate the collateral being held in the investment management account. Sidney relied on a provision in the investment management agreement stating that "the agreement shall be terminated upon [Wilmington]'s receiving written notice of the death of [Charlie]. Upon such termination, [Wilmington] shall deliver to . . . the executor or Administrator of [Charlie]'s estate, . . . all of the property held by it hereunder, if any."

Wilmington refused to return the collateral held in the investment management account. In September 2012, Fleur and Sidney, as co-personal representatives of Charlie's estate, initiated a second lawsuit against [*11]  Wilmington in Maryland state court, alleging that Wilmington breached an agreement to return funds held in the investment management account to Charlie's estate upon receiving notice of Charlie's death. Fleur and Sidney sought a declaratory judgment, specific performance of Wilmington's contractual obligations, and monetary relief. Wilmington removed the case to federal court, again based on diversity jurisdiction under 28 U.S.C. § 1332. The district court consolidated the two cases, and scheduled a jury trial to resolve only the breach of contract claims against Wilmington.8

8   The court held in abeyance the non-contract claims pending the outcome of the breach of contract claims. Following the trial, the court decided to continue holding these claims in abeyance pending the outcome of the present appeal, and severed and assigned the claims a new docket number.


The consolidated trial began in January 2014, and lasted for three weeks. During the trial, the plaintiffs argued that under an oral agreement between Charlie and Ianni, acting on Wilmington's behalf, the final premium financing arrangement required Charlie to post as collateral only the initial amount of $3.7 million. The plaintiffs asserted that the policies themselves served as the primary collateral for the arrangement. According to the plaintiffs, the parties had agreed that when Fleur and Charlie died, Wilmington's loans would be repaid in full from the proceeds of the death benefit. The plaintiffs contended that Wilmington [*12]  had received millions of dollars in commissions from the insurance companies, as well as management fees, and had charged the Trust several million dollars in interest. Thus, the plaintiffs argued that Wilmington breached its agreement with Charlie when it demanded additional collateral payments and refused to lend the Trust $5.5 million annually to pay the premiums and overfund the policies through Fleur's life without the payment of further collateral.

In its defense, Wilmington argued that Charlie and Shaiman were experienced businessmen who understood that funds in excess of Charlie's initial pledge of collateral would be required to support the premium financing arrangement. Wilmington asserted that the November 21 letter noted the possibility of future collateral payments, and that Charlie eventually agreed that the amount of additional collateral would be assessed on a yearly basis. Wilmington contended that it never would have agreed, particularly in the absence of a written contract, to lend the Trust $5.5 million every year until Fleur's demise while requiring merely $3.7 million in collateral funding.

In addition to contesting liability, the parties also disputed the existence [*13]  and proper calculation of damages. In particular, the parties disagreed whether the plaintiffs' expert witness, Robert E. Pugh, had accurately calculated the amount of the net-in-trust.

Pugh, an accountant, presented two sets of damages calculations. In the first set, he calculated the "present shortfall" of the net-in-trust, or the difference between (1) what the net-in-trust would have been at the time of trial in January 2014 had Wilmington lent the $5.5 million annually, and (2) what the existing amount of the net-in-trust was at the time of trial, given that Wilmington had failed to overfund the policies since 2004.9 Pugh ultimately determined that the value of the "present shortfall" of the net-in-trust was around $10.7 million.

9   We recognize that the net-in-trust will be disbursed to the ILIT's beneficiaries after Fleur dies.

In his second set of damages calculations, Pugh calculated the "future" net-in-trust shortfall over the period between 2014 and the projected end of Fleur's life (future shortfall), which, according to mortality tables developed by the Social Security Administration, and the parties' stipulation, would occur in 2019. Pugh's future shortfall calculation included two scenarios: (1) the future shortfall if Wilmington began overfunding, or lending, the full [*14]  $5.5 million per year, between 2014 and 2019; and (2) the future shortfall if Wilmington lent only the minimum amount necessary to maintain the life insurance policies. Accordingly, Pugh made two total net-in-trust shortfall calculations, combining the present shortfall calculation with each of the two different future shortfall estimates. These two total net-in-trust shortfall calculations amounted to: (1) $17.8 million if Wilmington began overfunding the policies immediately and continued to do so through 2019, and (2) around $19.5 million if Wilmington made only the minimum life insurance premium payments through 2019.

Wilmington argued in response that even if it had breached an agreement to overfund the policies, Charlie did not suffer any damages because he had not made any payments himself to maintain the policies. Wilmington also vigorously challenged the accuracy of Pugh's calculations, asserting that they were "riddled with mistakes" and were wholly unreliable.

In a special verdict, the jury concluded that: (1) Wilmington had agreed to lend funds to pay the life insurance policy premiums for the duration of Charlie's and Fleur's lives; (2) Wilmington's commitment was not contingent [*15]  on Charlie agreeing to post additional annual collateral; (3) Wilmington was not authorized by the parties' agreement to establish an annual amount that Charlie and Fleur would be required to pay as collateral; (4) Wilmington was required to overfund the policies; (5) Wilmington breached the agreement in March 2005 by requiring that Charlie pledge an additional $1.3 million in collateral; (6) Wilmington breached the agreement by failing to make loans each year to pay the premiums on the life insurance policies and by failing to overfund the policies beyond the first year; and (7) Wilmington was obligated to make premium payments for each year that the policies remained in effect.

The jury adopted Pugh's damages calculations, determining that Wilmington owed the plaintiffs either $17.8 million if Wilmington began overfunding the policies immediately, or $19.5 million if Wilmington were to make only the minimum premium payments through 2019. The jury also concluded that Wilmington owed the plaintiffs $3.9 million to reimburse the plaintiffs for part of the costs they incurred in obtaining the replacement policies.

The district court denied Wilmington's post-trial motion for judgment as [*16]  a matter of law, as well as Wilmington's alternative motions to amend the verdict, to set a new trial, and to require a remittitur. Ultimately, the court entered final judgment ordering Wilmington to continue lending "sufficient funds to pay the minimum premiums required to maintain in force the Policies until the death of Fleur Bresler," to pay the plaintiffs about $23 million in damages, and to return about $5 million in collateral to the Estate.10 Wilmington noted a timely appeal from the district court's judgment.

10   After the jury rendered its verdict, the district court resolved in the plaintiffs' favor their claim that under the investment management agreement, Wilmington was required to return to the Estate the collateral that was being held in the investment management account.


On appeal, we first consider Wilmington's challenges to the admissibility of Pugh's testimony. Wilmington argues: (1) that the district court was required under Rule 37 of the Federal Rules of Civil Procedure to exclude Pugh's testimony, because the plaintiffs violated certain provisions governing expert witness disclosures; and (2) alternatively, that the court should have excluded Pugh's testimony as analytically invalid under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We address both of these arguments in turn.


Wilmington asserts that the district court abused its discretion in admitting Pugh's testimony and in allowing his use of a particular exhibit setting forth his calculation methodology. Wilmington primarily contends that the court disregarded [*17]  the requirements of Rule 26: (1) by permitting the plaintiffs to use the exhibit depicting Pugh's net-in-trust formula and calculations, when this information was submitted after the deadline for such disclosures and was not included in Pugh's expert witness report; and (2) by permitting Pugh to testify regarding his updated calculations.

According to Wilmington, the district court's decision to admit Pugh's testimony disrupted the trial and deprived Wilmington of an adequate opportunity to cross-examine Pugh. Wilmington thus argues that it is entitled to a new trial or, alternatively, to the exclusion of Pugh's testimony and entry of judgment in Wilmington's favor. We disagree with Wilmington's arguments.

We review a district court's discovery rulings, as well as its decision to admit particular expert testimony, for abuse of discretion. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 260 (4th Cir. 2005) (admission of expert testimony); Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 236 (4th Cir. 2004) (discovery rulings). In the absence of a stipulation or court order stating otherwise, Rule 26 requires litigants to provide opposing counsel with a written report prepared and signed by an expert witness who may testify at trial. Fed. R. Civ. P. 26(a)(2)(A)-(B). The expert witness' report must contain, among other things, "a complete statement of all opinions [*18]  the [expert] witness will express and the basis and reasons for them," "the facts or data considered by the witness in forming them," and "any exhibits that will be used to summarize or support them." Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii). A party must make required expert witness disclosures "at the times and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D).

A litigant also is required to supplement information provided in its expert witness report and during the expert witness' deposition "if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1)(A), (e)(2). Unless the court orders otherwise, a party must supplement or correct such information regarding the expert witness' opinion and report at least thirty days before trial. Fed. R. Civ. P. 26(e)(2), (a)(3)(B).

The purpose of Rule 26(a) is to allow litigants "to adequately prepare their cases for trial and to avoid unfair surprise." Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 (4th Cir. 2014). Accordingly, a party who fails to comply with the expert witness disclosure rules is prohibited from "us[ing] that information or witness to supply evidence . . . at a trial, unless the failure was substantially [*19]  justified or is harmless." Fed. R. Civ. P. 37(c)(1).

District courts are accorded "broad discretion" in determining whether a party's nondisclosure or untimely disclosure of evidence is substantially justified or harmless. Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014) (quoting S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)). In making this determination, district courts are guided by the following factors:

   (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

S. States, 318 F.3d at 597. The first four factors listed above relate primarily to the harmlessness exception, while the last factor, addressing the party's explanation for its nondisclosure, relates mainly to the substantial justification exception. Id. The party failing to disclose information bears the burden of establishing that the nondisclosure was substantially justified or was harmless. Wilkins, 751 F.3d at 222 (citations omitted).

Applying these principles, we agree with Wilmington that the plaintiffs did not timely disclose Pugh's net-in-trust formula and calculations. Nevertheless, we conclude that the district court did [*20]  not abuse its discretion in allowing use of the exhibit and in admitting Pugh's testimony. We ultimately reach this result based on our conclusion that the untimely nature of the plaintiffs' disclosures was harmless and did not materially affect Wilmington's defense in the litigation, including during the trial. The relevant facts in this dispute chart our path leading to this conclusion.

In June 2012, the plaintiffs served on the defendants a copy of a report (the June 2012 report) drafted by Pugh, their expert witness on accounting issues. In his report, Pugh presented an opinion regarding the present value11 of an investment mechanism that would have received an annual contribution of $5.5 million between January 2013 and January 2019, and was subject to a 3.57 percent crediting rate. Pugh qualified his opinion by stating that his calculations were subject to amendment based on information regarding an actual award of damages or other court rulings, as well as on additional data revealed during the litigation about the applicable crediting rates.

11   Pugh explained that a present value is "the current worth of a future sum of money or stream of cash flows given a specified rate of return."

Pugh also stated in the June 2012 report that he could provide an opinion regarding the "current valuation of 'underfunding.'" He explained [*21]  that:

   Plaintiffs seek damages equal to the loss caused by the failure of Wilmington to overfund the three insurance policies . . . . I have been asked to perform calculations commencing in 2005. I have not performed a calculation which takes into account various costs and expenses related to the insurance policies, nor have I taken into account the payments made to the insurance carriers . . . .

(emphasis added). Pugh clarified that, instead, he had "calculated the current value of annual payments of $5,500,000 commencing in January 2005 and concluding in January 2012." Additionally, Pugh stated that at trial, he might "use a chart which depicts the variables and the conclusion described in [his] opinion."

On July 3, 2012, the court granted the parties' joint motion requesting an extension of certain deadlines regarding their expert witness disclosures. Under the court's order, the parties were required by August 21, 2012 to provide supplemental expert witness reports and corrections to existing expert witness reports. The order further provided that discovery concerning expert witness opinions would conclude on October 23, 2012. Under the court's pretrial procedures, the parties also [*22]  were required to provide an "update of damages claimed or relief sought" no later than five days before the first day of trial.

Also in July 2012, Wilmington provided the plaintiffs with a copy of a report from Wilmington's expert witness, Kevin Stephens, an accountant. Wilmington had retained Stephens to review the June 2012 report submitted by Pugh. Stephens criticized the June 2012 report for, among other things, its failure to incorporate calculations regarding the financing costs and costs of insurance associated with the premium financing arrangement. Stephens also provided exhibits in his report, which included: (1) financing costs between 2005 and 2020, under various scenarios applying differing financing rates; (2) the "actual cost of insurance and other policy expenses" for all three policies between the years 2005 and 201212; (3) the "guaranteed maximum cost of insurance rates" under each of the three policies; and (4) the projected cost of insurance for the different policies.13 According to Stephens, these figures should have been deducted from Pugh's figures to calculate the account value, death benefit, and net-in-trust.

12   Stephens noted that "[a]nnual statements for the various policies we[re] not available for each year."

13   At trial, Stephens testified that he intended his projected cost of insurance figures "to represent a floor amount," rather than the actual costs of insurance.

On October 29, 2013, the parties filed a Joint Proposed [*23]  Pre-trial Order (Pretrial Order), in which the plaintiffs set forth their estimates of the present and future net-in-trust shortfalls caused by Wilmington's failure to overfund. The Pretrial Order also indicated that Pugh would testify regarding "the reasonableness of the net in trust calculations," and stated that Pugh would "present opinion testimony on the shortfall . . . using the figures provided by [Stephens]." The next day, the court canceled the December 2013 trial date, and set the trial to begin on January 7, 2014.

In early November 2013, the plaintiffs provided Wilmington with a "thumb drive" containing one of the plaintiffs' exhibits, labeled "PX174." Exhibit PX174 depicted Pugh's calculations of the net-in-trust shortfall, or the difference between the net-in-trust allegedly promised by Wilmington and the reduced net-in-trust resulting from Wilmington's breach. Exhibit PX174 also included an interactive spreadsheet. An individual using the spreadsheet could enter values for certain variables to produce an outcome representing the net-in-trust. In addition to crediting rates, the formula in the spreadsheet contained estimates of variables such as the costs of insurance and [*24]  other expenses, which Pugh had based in part on information provided by Stephens's report. The plaintiffs concede that the formula was not included in the June 2012 report submitted by Pugh.

During a hearing that took place three days before trial on January 4, 2014, the district court declined Wilmington's request to exclude Pugh's testimony on the ground that exhibit PX174 contained a new formula that had not been disclosed before the deadlines for expert witness disclosures. The court noted that Wilmington had use of exhibit PX174, and the formula contained within that exhibit, for well over one month before the hearing, and that the court would have permitted Wilmington to depose Pugh again had Wilmington requested to do so.

The case proceeded to trial. Before Pugh was called to testify in the plaintiffs' case-in-chief, the plaintiffs presented the testimony of Patricia Wilson, a Wilmington employee. Wilson testified regarding the value of the premium financing investment, stating that the actual loan balance on the investment was $13.6 million, and that the current insurance death benefit was around $50 million.

After this testimony, the plaintiffs presented Pugh as their expert [*25]  witness on Friday, January 17, 2014. When Pugh stated that he was capable of updating his spreadsheet to incorporate Wilson's figures, Wilmington objected. At that point, the district court limited Pugh's testimony to the information he had provided before trial, but allowed him to inform the jury that application of Wilson's figures would result in a decrease of the amount of damages Pugh had calculated.

As Pugh's testimony unfolded, however, it became clear that Pugh needed to make additional changes to his calculations in light of Wilson's testimony, in order to calculate more accurately the net-in-trust shortfall. When Pugh started to testify regarding future shortfall estimates, the district court stopped the questioning, stating that the testimony had devolved into "hopeless confusion."14 The court ruled that Pugh needed to make changes to his spreadsheet by entering the information provided during Wilson's testimony and making any other necessary updates. The court told counsel that the court was "concerned about [the] jury understanding what's happening in [this] case."

14   The court made this remark to counsel during a bench conference.

Accordingly, after Wilmington did not object to Pugh being excused as a witness to "work on [his] numbers" over [*26]  the weekend before resuming his testimony, the plaintiffs proceeded in their case-in-chief and called their next witness to testify. After the weekend, the plaintiffs recalled Pugh to present his revised calculations. Pugh explained the changes he had made to his figures in response to some errors identified by defense counsel, and in response to financial information presented by Wilson in her trial testimony, including the actual loan balance and death benefit identified by Wilson.

Wilmington subjected Pugh to lengthy and rigorous cross-examination on both his original calculations and his amended figures, questioning him about matters including his choice of values for interest rates and the costs of maintaining the insurance policies. Wilmington did not present its own damages calculation.

Given this sequence of events, we agree with Wilmington that the plaintiffs violated the disclosure requirements for expert witnesses in Rule 26. See Fed. R. Civ. P. 26(a)(2)(D), (a)(3)(B). Exhibit PX174 contained a net-in-trust formula and associated calculations that Pugh considered in forming his ultimate opinion, which therefore should have been included in the June 2012 report. See Fed. R. Civ. P. 26(a)(2)(B)(i)-(iii). Even if we were to view exhibit PX174 as being a [*27]  supplement to the June 2012 report, that exhibit was not provided to Wilmington until November 2013, well beyond the parties' agreed deadline. See Fed. R. Civ. P. 26(a)(2)(D), (a)(3)(B).

Nonetheless, upon review of the Southern States factors, we conclude that the district court did not abuse its discretion in admitting Pugh's testimony, because the plaintiffs' noncompliance with Rule 26 was harmless in the context of the events that transpired.15 See S. States, 318 F.3d at 597. With regard to the first Southern States factor, we observe that any surprise resulting from the plaintiffs' belated disclosure of exhibit PX174 and the net-in-trust calculation was minimal. Wilmington had been notified in a timely manner in the June 2012 report that Pugh would testify regarding the value that the policies would have yielded if Wilmington had met its overfunding commitments through 2019. The June 2012 report also stated that depending on additional information Pugh could obtain at a later date, he might use an updated chart or spreadsheet in the course of the litigation. Thus, Wilmington was aware from the June 2012 report that damages related to the plaintiffs' anticipated net-in-trust was a central issue in the case, and that Wilmington's decision whether to [*28]  overfund the policies necessarily would impact the value of the policies and, consequently, the amount of the net-in-trust.

15   In addressing whether to admit the plaintiffs' delayed disclosures, the district court did not discuss individually the factors enumerated in Southern States. However, the district court was not required to do so. Wilkins, 751 F.3d at 222.

Also, it was undisputed that the very goal of the premium financing arrangement, which Wilmington emphasized in its proposals to Charlie, was to produce a sizable net-in-trust upon Fleur's and Charlie's deaths. Pugh ultimately updated his calculations from the June 2012 report. Some of these updates were reflected in exhibit PX174, in which Pugh incorporated certain cost estimates and other information included in Stephens's report. In addition, Pugh's testimony reflected changes made to incorporate information that Wilson, Wilmington's own employee, presented in her testimony.

And, decisively, the collective result of these changes was a decrease in the amount of damages calculated. Thus, the present case does not involve a situation in which a defendant was "blindsided" by an expert witness' testimony that damages would be greater, or from a different source, than the witness earlier had indicated. Pugh's updated calculations actually decreased his estimates regarding the net-in-trust shortfall. Accordingly, we conclude that any surprise to Wilmington [*29]  caused by the plaintiffs' belated disclosure of exhibit PX174, and Pugh's related testimony regarding the net-in-trust shortfall, was inconsequential. See Howe v. City of Akron, 801 F.3d 718, 748-50 (6th Cir. 2015) (concluding that plaintiffs' late disclosure of expert witness' back-pay calculations was harmless, in part because defendant possessed information relevant to calculations and knew plaintiffs were reconsidering their calculations, which plaintiffs had realized might be flawed).

We next consider the second Southern States factor, and address Wilmington's ability to cure any purported surprise. See 318 F.3d at 597. We observe that Wilmington had access to exhibit PX174 and its associated net-in-trust formula for nearly two months before the trial began. During that period, Wilmington did not seek to depose Pugh or to take any other steps to mitigate the purported surprise caused by the plaintiffs' delayed disclosure of the net-in-trust formula. Moreover, the record before us does not indicate that an earlier disclosure of exhibit PX174 and Pugh's updated calculations would have enabled Wilmington to conduct additional cross-examination of Pugh or to introduce competing evidence at trial.16 See Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir. 2004); see also Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) ("[T]he expert disclosure rule is intended to provide [*30]  opposing parties [a] reasonable opportunity to prepare for effective cross examination and . . . arrange for expert testimony from other witnesses." (internal quotation marks and citations omitted)). Thus, the record does not show that Pugh's supplementary calculations and their timing affected Wilmington's ability to conduct its defense in any material respect.

16   Wilmington did not present its own damages calculation to the jury, relying instead on its attempts to discredit Pugh's calculations. Notably, Wilmington does not contend that its failure to present its own calculations was a result of the plaintiffs' delayed disclosures, rather than a strategic decision that Wilmington made during the course of the litigation.

The third Southern States factor is "the extent to which allowing the evidence would disrupt the trial." 318 F.3d at 597. The record before us does not indicate any significant disruption caused by the district court's decision to admit exhibit PX174 and to permit Pugh to testify concerning his updated calculations. Cf. S. States, 318 F.3d at 598 (agreeing with district court's finding that allowing "continuance to accommodate [expert witness'] third opinion would have significantly disrupted the trial," because continuing and presenting case anew would render "much of the parties' trial preparation . . . obsolete").

We observe pursuant to the fourth Southern States factor that Pugh's testimony was vital evidence, because it provided the basis for the jury's damages award. See id. at 597. And, with regard to the fifth Southern States factor, the plaintiffs have not provided a [*31]  sufficient explanation for their delay in disclosing exhibit PX174 in a timely manner. See id. at 598-99. These two factors weigh in Wilmington's favor in the Southern States analysis. Nonetheless, given that any surprise to Wilmington at trial was minimal, and that Wilmington had an opportunity to cure any surprise from exhibit PX174 that may have affected the preparation of its defense, we cannot say that the district court abused its discretion in declining to exclude exhibit PX174 and Pugh's testimony under Rule 37. See id. at 597 (recognizing the district court's "broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless" under Rule 37(c)(1)).


We next address Wilmington's contention that the district court should have excluded Pugh's testimony under the principles expressed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Wilmington argues that Pugh's testimony was inadmissible because his calculations: (1) erroneously incorporated cost of insurance values from Stephens's model to calculate the "with overfunding" net-in-trust shortfall up to the date of trial; (2) used "an invalid interest spread" to project the future net-in-trust shortfall; and (3) improperly discounted the future net-in-trust [*32]  shortfall to present value.

We find no merit in Wilmington's arguments. We review for abuse of discretion a district court's evidentiary rulings regarding the reliability of an expert opinion. Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005). We conclude that although Pugh's testimony was unclear at various points during the trial, the district court did not abuse its discretion in declining to exclude Pugh's testimony under Daubert.17

17   Wilmington also asserts that, in forming his opinions, Pugh impermissibly relied on Randy Whitelaw, a professional in the insurance industry with experience in premium financing, because Whitelaw did not testify and Wilmington thus was unable to cross-examine him. We disagree. While an expert witness may not bolster the reliability of his own opinion by testifying about a non-testifying expert witness' credentials and opinion, see United States v. Tran Trong Cuong, 18 F.3d 1132, 1144 (4th Cir. 1994), Pugh relied on Whitelaw for information about general premium financing concepts, and did not rely on the opinions Whitelaw prepared for the present litigation. See Fed. R. Evid. 703.

Under Rule 702 of the Federal Rules of Evidence, an expert witness' testimony must, among other things, be "based on sufficient facts or data," and must be "the product of reliable principles and methods." Fed. R. Evid. 702(a)-(d). Courts are required to act as "gatekeepers" to ensure that expert testimony is relevant and reliable. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 588).

In fulfilling its gatekeeping function, a district court "must conduct a preliminary assessment" to determine whether the methodology underlying the expert witness' testimony is valid. Id. (internal quotation marks omitted) (quoting Daubert, 509 U.S. at 592-93). District courts have "considerable leeway" in determining the manner in which they evaluate an expert witness' reliability. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In assessing the validity of the methodology employed by a proposed expert witness, a court may consider whether the expert witness' theory or technique: (1) "can [*33]  be or has been tested"; (2) "has been subjected to peer review and publication"; (3) "has a high known or potential rate of error"; and (4) is generally accepted "within a relevant scientific community." Cooper, 259 F.3d at 199.

To determine whether an opinion of an expert witness satisfies Daubert scrutiny, courts may not evaluate the expert witness' conclusion itself, but only the opinion's underlying methodology. TFWS, Inc. v. Schaefer, 325 F.3d 234, 240 (4th Cir. 2003). Moreover, "questions regarding the factual underpinnings of the [expert witness'] opinion affect the weight and credibility" of the witness' assessment, "not its admissibility." Structural Polymer Grp. v. Zoltek Corp., 543 F.3d 987, 997 (8th Cir. 2008).

In the present case, Wilmington's Daubert challenge amounts to a disagreement with the values Pugh chose to assign to certain variables, including the cost of insurance and future interest rates. While Wilmington may have preferred that Pugh use higher costs of insurance in his formula, along with other values more favorable to Wilmington, Pugh's failure to do so did not require the district court to exclude Pugh's opinion under Daubert. Cf. Tyger Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137, 143 (4th Cir. 1994) (holding that district court abused its discretion in admitting expert opinion that conflicted directly with uncontroverted record evidence). Rather, such challenges to the accuracy [*34]  of Pugh's calculations "affect the weight and credibility" of Pugh's assessment, not its admissibility. See Zoltek Corp., 543 F.3d at 997.






WYNN, Circuit Judge, concurring in part and dissenting part:

I agree with the majority opinion that sufficient evidence supported the jury's conclusions (1) that Defendant Wilmington Trust Company ("Wilmington Trust") and Charlie Bresler ("Charlie") entered into a "premium financing" contract; (2) that, pursuant to that contract, Wilmington Trust agreed to lend $5.5 million per year to an irrevocable trust established by Charlie to pay premiums on and "overfund" three life insurance policies purchased by the trust; and (3) that the contract required that Wilmington Trust return collateral posted by Charlie upon Charlie's death. I also agree with the majority opinion that disclosures and damages testimony by Plaintiffs' accounting expert violated [*50]  Federal Rule of Civil Procedure 26 in numerous ways.

Notwithstanding Plaintiffs' myriad violations of Rule 26, the majority opinion concludes that the district court did not abuse its discretion in admitting the damages testimony on grounds that Plaintiffs' noncompliance was "harmless." See Fed. R. Civ. P. 37(c)(1). But the district court never concluded that Plaintiffs failed to comply with Rule 26, and therefore never exercised its discretion to admit the evidence on harmlessness grounds. Accordingly, plenary, rather than abuse-of-discretion, review applies to the district court's decision to admit the damages testimony. Indeed, the application of deferential review is particularly unwarranted because Plaintiffs repeatedly mislead, intentionally or otherwise, the district court regarding information essential to determining whether Plaintiffs complied with Rule 26 and whether any violation of Rule 26 was harmless. In so doing, Plaintiffs deprived the district court of the opportunity to exercise its discretion in an informed manner, undermining the rationale for applying abuse-of-discretion review on appeal.

Under this Court's precedent, the damages testimony--which Plaintiffs first disclosed after the close of expert discovery, after the court had ruled on the parties' [*51]  motions for summary judgment, and after the deadline for submitting pre-trial motions--was not harmless. See Wilkins v. Montgomery, 751 F.3d 214, 223 (4th Cir. 2014). On the contrary, Plaintiffs' noncompliance with Rule 26 deprived Wilmington Trust of the opportunity to depose the expert regarding his damages opinion, to prepare rebuttal reports, and, therefore, to effectively challenge the expert's damages testimony at trial--testimony from which the jury directly drew its multi-million dollar damages award. "[I]t would be a miscarriage of justice to allow [the] award to stand, where that award was brought about by plaintiffs' misleading the court." Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 37 (1st Cir. 2006). Accordingly, I dissent.



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