United States District Court, M.D. Tennessee, Nashville Division
WISCHERMANN PARTNERS, INC., et al., Plaintiffs/Counter-Defendants,
NASHVILLE HOSPITALITY CAPITAL LLC, Defendant/Counter-Plaintiff,
PAUL WISCHERMANN, Defendant.
ORDER AND MEMORADUM OPINION
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
before the Court is the Motion to Exclude the Testimony of
Nashville Hospitality Capital LLC's Expert Witness, C. G.
Pinkowski filed by Plaintiff/Counter-Defendant Wischermann
Partners, Inc. (“Wischermann Partners”),
Plaintiff Wischermann Hospitality Employer LLC, and Defendant
Paul Wischermann (collectively “the Wischermann
Parties”). (Doc. No. 136). Defendant/Counter-Plaintiff
Nashville Hospitality Capital LLC (“NHC”) filed a
Response in Opposition (Doc. No. 151) and the Wischermann
Parties filed a Reply. (Doc. No. 161). For the reasons
discussed below, the Motion is DENIED.
Rule of Evidence 702 governs the admissibility of an expert
witness's testimony at trial. Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993). Under Rule 702,
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
trial judge has discretion in determining whether a proposed
expert's testimony is admissible based on whether the
testimony is both relevant and reliable.” Palatka
v. Savage Arms, Inc., 535 Fed.Appx. 448, 453 (6th Cir.
2013) (quotation omitted). The Court's task is to assess
“whether the reasoning or methodology underlying the
testimony is scientifically valid and... whether that
reasoning or methodology properly can be applied to the facts
in issue.” Daubert, 509 U.S. at 592-93. In
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137
(1999), the Supreme Court extended Daubert to
nonscientific expert testimony, requiring that, “where
such testimony's factual basis, data, principles,
methods, or their application” are called sufficiently
into question, the trial judge must determine whether the
testimony has “a reliable basis in the knowledge and
experience of [the relevant] discipline.” Kumho
Tire, 526 U.S. at 149.
the court will not exclude expert testimony “merely
because the factual bases for an expert's opinion are
weak.” Daniels v. Erie Ins. Grp., 291
F.Supp.3d 835, 840 (M.D. Tenn. 2017) (quoting Andler v.
Clear Channel Broad., Inc., 670 F.3d 717, 729 (6th Cir.
2012)). “Indeed, rejection of expert testimony is the
exception rather than the rule-the gatekeeping function
established by Daubert was never intended to serve
as a replacement for the adversary system.”
Id. (internal quotation marks and citation omitted).
Rule 702 does not “require anything approaching
absolute certainty.” Tamaraz v. Lincoln Elec.
Co., 620 F.3d 665, 671-72 (6th Cir. 2010) (citing
Daubert, 509 U.S. at 590). Under Daubert,
experts are “permitted wide latitude in their opinions,
including those not based on firsthand knowledge, so long as
the expert's opinion has a reliable basis in the
knowledge and experience of the discipline.” Dilts
v. United Grp. Servs., LLC, 500 Fed.Appx. 440, 445 (6th
Cir. 2012) (quoting Daubert, 509 U.S. at 592).
Wischermann Parties seek to exclude the testimony, expert
report, and surrebuttal expert report of NHC's expert
witness, Charles Pinkowski (“Pinkowski”). (Doc.
No. 136). Pinkowski is the founder of his Memphis based
consulting company, Pinkowski & Company, and has
“more than forty years of experience in the hospitality
industry both in the field of consulting and national chain
hotel development.” (Doc. No. 151-2 at 3). Pinkowski is
expected to testify regarding the financial impact to NHC as
a consequence of Paul Wischermann and Wischermann
Partners' alleged actions. (Doc. No. 151-2).