Plaintiff Kristina Cleaver initiated legal proceedings against her former employer, Transnation Title & Escrow, Inc. dba Fidelity National Title Company (“Fidelity”) based on an accusation of gender discrimination, purportedly in violation of both federal and state laws. Fidelity, identified as a title and escrow company specializing in real estate transactions in collaboration with real estate agents, employed Cleaver as a sales executive from June 2019 to March 2021.

Cleaver contended that Fidelity abruptly removed her from a significant account referred to as the “Sweet Account” in December 2019. The alleged reason behind this action was the refusal of the account’s lead real estate agent, Jeffrey Sweet, to continue working with Cleaver due to her gender. Cleaver sought compensatory damages, specifically for lost commissions, and additionally asserted a claim for punitive damages.

As part of the legal proceedings, Cleaver designated Kris Miller to provide expert opinions on matters related to discrimination and damages. However, Fidelity responded by filing a motion to “strike” Miller’s report and testimony under Rule 702 of the Federal Rules of Evidence. Fidelity contended that Miller was not qualified to provide opinions on either discrimination or damages, and even if he were deemed qualified, the company argued that his opinions were unreliable. Fidelity argued that Miller was not qualified to opine on either discrimination or damages and that, even if he were qualified, his opinions were unreliable. Alternatively, Fidelity argued that the Court should exclude Miller’s testimony because Cleaver designated Miller, a purported competitor of Fidelity, to improperly provide him with access to Fidelity’s confidential information.

On November 19, 2021, Cleaver had disclosed Miller as an expert witness specializing in “title and escrow company management and procedures” to provide opinions on discrimination and damages. In Miller’s initial report, he had articulated seven enumerated opinions, addressing discrimination by Fidelity and quantifying Cleaver’s damages. Regarding Cleaver’s income loss, Miller had indicated in the report that Fidelity had not furnished complete documents reflecting the actual income generated by the Sweet Team. In the absence of Fidelity’s cooperation, he asserted that his numbers were reasonably accurate, emphasizing that Fidelity’s failure to provide key documents, such as complete closed orders, created an unnecessary impediment to determining the loss more accurately. Miller had explicitly stated in his initial report that he would supplement or amend the report upon receiving the missing closed orders.

Simultaneously with Miller’s disclosure of his initial report, on the same day, Cleaver had filed a motion to compel Fidelity to produce the “closed orders for the entire year [of] 2021.” Cleaver argued that showing the amount of revenue generated by the Sweet Account for Fidelity was crucial. Despite Fidelity’s opposition, the Court had ruled in favor of Cleaver, deeming the Sweet Account closed orders critical for substantiating a claim for damages. The Court granted Cleaver’s motion and ordered Fidelity to produce the requested documents.

On March 11, 2023, a few weeks before Cleaver’s April 18 expert disclosure deadline, Fidelity had produced the Sweet Account closed orders for 2021. However, Miller did not supplement or amend his initial report to address Fidelity’s 2021 closed orders, even though he had received them before the expert disclosure deadline. After that deadline passed, Fidelity had deposed Miller. The deposition transcript provided by Fidelity to the Court indicated that Miller had received the 2021 closed orders, reviewed them, found them “incomplete,” and determined that they did not support his earlier “prediction.” After Miller’s deposition, Miller had produced a rebuttal report specifically addressing Cleaver’s damages.

Business Administration and Management Expert Witness

Kris Miller is currently Market President for Empire Title & Escrow located in Ada and Canyon Counties, Idaho. With over 15 years of employee management and leadership in a corporate environment, he is familiar with internal policies, practices and procedures for title companies. His expertise involves title company management, including the manner in which title companies hire, retain, develop, evaluate, compensate and promote employees.

Discussion by the Court

In his initial report, Miller had expressed four key opinions: (1) Fidelity’s removal of Cleaver from the Sweet Account violated the company’s own policies related to equal opportunity and harassment; (2) Fidelity’s action contravened industry standards, irrespective of the industry; (3) any circumstance involving the removal of an employee from an account based on gender is inherently discriminatory, making Fidelity’s actions discriminatory; and (4) Fidelity had the option to abstain from removing Cleaver from the account and could have referred the client to another title company. Fidelity had contested these opinions, urging the Court to exclude them on the grounds that they constituted legal conclusions or would not be helpful to the jury.

The Court had concurred with Fidelity’s position. It had determined that Miller’s general, blanket opinions, particularly asserting that Fidelity’s removal of Cleaver from the Sweet Account was discriminatory, amounted to legal conclusions. The Court emphasized that Miller failed to provide an adequate explanation or basis for his conclusory opinion alleging discrimination by Fidelity.

Moreover, the Court had found that Miller’s opinions asserting Fidelity’s violation of its own company policies by removing Cleaver from the Sweet Account and implying available alternatives to such removal did not necessitate specialized knowledge that would assist the jury in understanding the evidence. The Court concluded that the jury was sufficiently capable of comprehending and drawing inferences from the available evidence without the need for expert opinions on these matters.

Additionally, the Court noted that Miller’s general and vague opinion about Fidelity violating industry standards, applicable across various industries, lacked a reliable basis applicable to the specific facts of the case. Miller had not identified any specific industry standard in support of his opinion. Consequently, the Court had granted Fidelity’s motion to exclude Miller’s testimony regarding his discrimination opinions based on these reasons.

Furthermore, Fidelity had contested Miller’s opinions concerning Cleaver’s damages, asserting, among other arguments, that those opinions lacked reliability. The Court agreed that Miller’s damage opinions did not fulfill the requirements for admissibility under Rule 702. Miller had made several broad statements regarding Cleaver’s damages, such as the impact of her removal from the Sweet Account on her industry reputation, the loss of past income from title and escrow transactions, the relative value of the 50% stock match, and a distinct loss of income attributed in part to a ‘loss of momentum.’

However, the Court found that Miller had failed to provide a method for calculating these losses, did not conduct an analysis of the losses, and did not express any opinions regarding the specific amounts of these losses. Consequently, the Court concluded that these purported “opinions” did not meet any of the requirements outlined in Rule 702.

To reach his remaining damage opinions, Miller relied on a document entitled “Kristina Cleaver Income Loss” (“Income Loss document”) which consisted of calculations for Cleaver’s lost income from 2020 through 2025 based, in part, on  Cleaver’s compensation package, the “growth” of the number of agents on the Sweet team, increases in property values, and an increase in the Sweet team’s sales volume. Based on various assumed numbers, the document calculated an “actual revenue lost” of $311,756.50.

Fidelity represented that Cleaver and her counsel prepared the Income Loss document. Although Cleaver disputed her counsel’s involvement in preparing the document, Miller testified during his deposition that, to his knowledge, Cleaver and her counsel prepared the document. That Miller did not prepare the document, however, was undisputed. Miller’s initial report regarding the Income Loss document stated that despite the lack of an absolute method of determining future income growth from the Sweet Team, the future escrow and title transactions and resultant income to Cleaver could be not be less than her calculations. Miller then adopted Cleaver’s damage number of $311,746.50. Further, he stated that “the actual number is 30% greater at $400,000.00-$450,000.00,” but provided no basis or explanation for reaching these numbers.

During Miller’s deposition he testified about his wholesale reliance on the Income Loss document, which Cleaver (perhaps with her counsel’s assistance) prepared.

Based on this testimony, the Court observed that it was evident that Miller was simply parroting Cleaver’s method, analysis, and calculations to determine damages. Since, Cleaver previously stated Miller adopted and ratified those calculations, she appeared to assert that Miller’s adoption and ratification of her calculations was enough to satisfy Rule 702.

The Court underscored the principle that an expert witness is not allowed to merely echo a party’s stance on an issue but must engage in an independent assessment of the opinions, in accordance with Rule 703 of the Federal Rules of Evidence. In this particular case, Miller had not fulfilled this obligation, and the opinions presented in his initial report did not adhere to the requirements outlined in both Rule 702 and Rule 703.

Despite Miller subsequently providing a rebuttal report in support of his opinions, the Court held that this rebuttal report could not rectify the substantial deficiencies found in his initial report. Fidelity’s argument was acknowledged, emphasizing that a party is not permitted to use a rebuttal report to address the inadequacies of its initial report. According to Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure, rebuttal expert testimony is allowable only when intended to contradict or rebut evidence on the same subject matter identified by another party. It is limited to addressing new, unforeseen facts brought out in the opposing party’s case and cannot introduce new arguments or evidence.Furthermore, the Court highlighted that Cleaver had not addressed Fidelity’s contention that Miller’s rebuttal report did not rectify the defects in his initial report and could not be relied upon to substantiate her case-in-chief.

Miller’s initial opinions—by his own admissions in his deposition—were not based in facts or data or the product of reliable principles and methods. Rather, Miller simply adopted and ratified Cleaver’s version of the facts and data and her unproven method for calculating her damages based on that version. Miller exercised no expertise in establishing a method to calculate damages, and his opinions were not based on any independent analysis of any facts or data. Accordingly, the Court concluded that Miller’s damage opinions failed to satisfy Rule 702 and granted Fidelity’s motion to exclude Miller’s testimony about his damage opinions.

Because the Court excluded Miller’s expert testimony, it did not address Fidelity’s argument that Miller should be excluded as a sanction under Rule 37 of the Federal Rules of Civil Procedure. Further, the Court denied Fidelity’s other requests, including that Cleaver’s Income Loss document be “stricken”; that Cleaver be precluded from testifying about the information (although the Court will entertain appropriate, pretrial motions in limine regarding the information); and that the Court reconsider the prior order awarding attorney fees related to her motion to compel.

Held

The Court granted in part and denied in part Fidelity’s Motion to Strike the Expert Report and Testimony of Kris Miller. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

The Court decision in this case provides several notable insights into expert testimony. Firstly, the Court emphasized the imperative that expert opinions should not amount to legal conclusions or general assertions lacking a sufficient basis. Specifically, opinions offered by the expert, Miller, were considered too broad, constituting legal conclusions, and were excluded due to a lack of clarity and supporting rationale. Additionally, the Court stressed that expert opinions must be grounded in specialized knowledge to aid the jury’s understanding, and Miller’s opinions on policy violations and industry standards were found insufficient in this regard.

The Court subjected Miller’s damage calculations to scrutiny, pointing out their unreliability due to a lack of methodological clarity, failure to analyze losses, and absence of specific amounts. Notably, Miller’s reliance on a document prepared by Cleaver and her counsel raised concerns about the independence and expertise of the expert. The Court highlighted the importance of Rule 703, emphasizing that expert witnesses should not merely echo a party’s position but should engage in an independent assessment of opinions.

Furthermore, the Court clarified that a rebuttal report cannot remedy significant deficiencies in an initial report, in accordance with Rule 26(a)(2)(D)(ii). Rebuttal expert testimony is restricted to addressing new facts brought out by the opposing party and cannot introduce new arguments or evidence. The Court did not address Fidelity’s argument for sanctions under Rule 37, as the exclusion of Miller’s testimony obviated the need for such measures.

Additionally, the Court rejected Fidelity’s requests for preclusion of Cleaver’s testimony, striking Cleaver’s Income Loss document, and reconsideration of prior orders related to attorney fees. These denials were made in light of the Court’s decision to exclude Miller’s testimony. In essence, the case underscores the critical role of experts in presenting reliable and independent opinions, ensuring adherence to procedural rules governing expert testimony.

Case Caption	Cleaver V. Transnation Title & Escrow, Inc.
Docket Number	1:21cv31
Court	United States District Court, Idaho
Citation	2024 U.S. Dist. LEXIS 16930
Order Date	January 29, 2024

Category: Business Administration and Management Expert Witness

Business Administration and Management Expert Witness Testimony found Inadmissible for not Establishing a Method to Calculate Damages

Business Administration and Management Expert Witness Testimony found Inadmissible for not Establishing a Method to Calculate Damages