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Regions Bank v. Kaplan

United States District Court, M.D. Florida, Tampa Division

March 24, 2017

REGIONS BANK, etc., Plaintiff,
v.
MARVIN I. KAPLAN, etc., et al., Defendants.

          ORDER

          ELIZABETH A. KOVACHEVICH JUDGE.

         This 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 Parties)
Dkt. 556 Notice of Filing Expert Report of Paul Carrubba
Dkt. 572 Response in Opposition (Wells Fargo Bank, N.A.)

         Crossclaim 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.

         Crossclaim Plaintiffs argue that the opinions of Paul Carrubba should be excluded because the opinions are legal conclusions presented as expert opinions.

         Paul 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.

         Crossclaim 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.

         I. Standards - Fed. R. Ev. 702 and Daubert

         The 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. 137, 147(1999).

         The district court considers whether:

1. The expert is qualified to testify competently regarding the matters he ...

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