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Wischermann Partners, Inc. v. Nashville Hospitality Capital LLC

United States District Court, M.D. Tennessee, Nashville Division

August 13, 2019

WISCHERMANN PARTNERS, INC., et al., Plaintiffs/Counter-Defendants,
v.
NASHVILLE HOSPITALITY CAPITAL LLC, Defendant/Counter-Plaintiff,
v.
PAUL WISCHERMANN, Defendant.

          HOLMES MAGISTRATE JUDGE

          ORDER AND MEMORADUM OPINION

          WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE

         Pending 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.

         I.STANDARD OF REVIEW

         Federal 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         “[T]he 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.

         However, 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).

         II. ANALYSIS

         The 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).

         A. Pinkowski's ...


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