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Diamond Consortium, Inc. v. Manookian

United States District Court, E.D. Texas, Sherman Division

July 10, 2017

DIAMOND CONSORTIUM, INC.; DAVID BLANK
v.
BRIAN MANOOKIAN; CUMMINGS MANOOKIAN, PLC; BRIAN CUMMINGS

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiffs' Motion to Strike the Expert Designation of Martin Rapaport (Dkt. #246). Having considered the pleadings, the Court finds the motion should be denied.

         BACKGROUND

         On February 3, 2017, Defendants Brian Manookain (“Manookian”), Brian Cummings (“Cummings”), and Cummings Manookian, PLC served their First Amended Expert Disclosure (the “Amended Disclosure”) (Dkt. #246, Exhibit 1). The Amended Disclosure designates Martin Rapaport (“Rapaport”) as an expert witness as follows:

Mr. Rapaport is a non-retained expert on matters concerning the diamond industry, specifically diamond grading standards and practices. Mr. Rapaport has expert knowledge of the different grading laboratories and their practices, namely EGL-I and GIA, which form the basis of the underlying claims between Defendants and Plaintiffs. Mr. Rapaport, should he be called to testify at trial, will be expected to testify regarding the matters set forth in his article “Honest Grading” published in November 2014.”

(Dkt. #246, Exhibit 1 at pp. 5-6). Plaintiffs argue Rapaport should not be treated as a non-retained expert in this case, and even if he could, his expert designation does not comply with Federal Rule of Civil Procedure 26(a)(2)(C).

         On June 9, 2017, Plaintiffs filed the pending Motion to Strike the Expert Designation of Martin Rapaport (Dkt. #246). On June 23, 2017, Defendants filed a response (Dkt. #259). On June 30, 2017, Plaintiffs filed a reply (Dkt. #275).

         LEGAL STANDARD

         Federal Rule of Evidence 702 provides for the admission of expert testimony that assists the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702. A district court must make a preliminary determination, when requested, as to whether the requirements of Rule 702 are satisfied with regard to a particular expert's proposed testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). Courts act as gatekeepers of expert testimony “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). The party offering the expert's testimony has the burden to prove by a preponderance of the evidence that: (1) the expert is qualified; (2) the testimony is relevant to an issue in the case; and (3) the testimony is reliable. Daubert, 509 U.S. at 590-91.

         Federal Rule of Civil Procedure 26(a)(2)(B) states that the disclosure of a witness must be accompanied by a written report, “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving testimony.” Federal Rule of Civil Procedure 26(a)(2)(C) governs the disclosure requirements for other expert witnesses, mandating that the “disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(B). “Courts require a party seeking to avoid producing a full expert report to show the proposed expert is not required to submit a report.” Eagle Oil & Gas Co. v. Travelers Prop. Cas. Co. of Am., No. 7:12-CV-00133-O, 2014 WL 3744976, at *7 (N.D. Tex. July 30, 2014).

         ANALYSIS

         Retained or Non-Retained Expert

         Plaintiffs contend the Court should treat Rapaport as a retained or specially employed expert under Rule 26(a)(2)(B) because he does not have first-hand knowledge of any of the specific events giving rise to this matter. Plaintiffs state that as a Rule 26(a)(2)(B) expert, Rapaport was required to submit a written expert report. Defendants respond that Rapaport is a non-retained expert under Rule 26(a)(2)(C). Defendants state they do not have a compensation agreement with Rapaport and Rapaport did not form his opinions regarding diamond grading in anticipation of litigation, but in the course of his ordinary employment and professional training (Dkt. #259 at p. 7). The Court finds Rapaport should have been designated as a specially employed expert under Rule 26(a)(2)(B).

         “The distinction between retained and non-retained experts should be interpreted in a common sense manner.” DiSalvatore v. Foretravel, Inc., No. 9:14-CV-00150-KFG, 2016 WL 7742996, at *2 (E.D. Tex. May 20, 2016) (citations omitted). “A retained expert witness is an expert who, without prior knowledge of the facts giving rise to litigation, is recruited to provide expert opinion testimony.” Id. A witness is “specially employed” under Rule 26(a)(2)(B) when “he has no personal involvement in facts giving rise to the litigation, but is engaged to provide opinion ...


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