United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH JUDGE.
cause is before the Court on:
Dkt. 541 -43 Affidavit of Paul A. Carrubba
Dkt. 555 Motion to Strike or Exclude Testimony and Report of
Wells Fargo's Purported Expert, Paul Carrubba (Kaplan
Dkt. 556 Notice of Filing Expert Report of Paul Carrubba
Dkt. 572 Response in Opposition (Wells Fargo Bank, N.A.)
Plaintiffs Marvin I. Kaplan, R1A Palms, LLC, Triple Net
Exchange, LLC, MK Investing, LLC and BNK Smith, LLC
(“Kaplan Parties”) move to exclude from evidence
the testimony and report of Crossclaim Defendant Wells Fargo,
N.A.'s expert, Paul Carrubba.
Plaintiffs argue that the opinions of Paul Carrubba should be
excluded because the opinions are legal conclusions presented
as expert opinions.
Carrubba has provided an opinion on two issues: 1) Wells
Fargo, N.A. returned the checks at issue according to
reasonable banking standards and in accordance with the time
frames set forth by law, and 2) whether using “Refer to
maker” as a return reason was proper and in accordance
with commercial banking standards.
Defendant Wells Fargo, N.A. responds that the opinions of
Paul Carrubba, that Well Fargo timely returned the WFB
Replacement Checks and that Wells Fargo's use of RTM as a
return reason was in accordance with reasonable commercial
standards, are opinions regarding ultimate facts, based on
Mr. Carrubba's experience in the banking industry.
Standards - Fed. R. Ev. 702 and Daubert
district court serves as a gatekeeper to the admission of
scientific testimony. Daubert v. Merrell Dow Pharms..
Inc.. 509 U.S. 579, 589 (1993). The district court has
the same responsibility when the court is presented with a
proffer of expert technical evidence or other specialized
knowledge. Kumho Tire Co. v. Carmichael. 526 U.S.
district court considers whether:
1. The expert is qualified to testify competently regarding
the matters he ...