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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 KAPLAN, etc., et al., Defendants.

          ORDER

          ELIZABETH A. KOVACHEVICH JUDGE.

         This cause is before the Court on:

Dkt. 541-29 Affidavit of Ivan A. Garces
Dkt. 541-30 Expert Report
Dkt. 541-31 Supplemental Expert Report
Dkt. 541-32 Rebuttal Expert Report
Dkt. 554 Motion to Strike or Exclude Testimony and Report of BridgevieWs Purported Expert, Ivan Garces, with Exhibit (Expert Witness Report)(Kaplan Parties)
Dkt. 571 Response in Opposition (Bridgeview Bank Group)

         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 Bridgeview Bank Group's expert witness, Ivan Garces.

         Crossclaim Plaintiffs contend that the findings in the Expert Report (April 14, 2015), and Supplemental Reports (May 14, 2015, June 15, 2015) of Ivan A. Garces should be excluded from evidence because they are inadmissible legal conclusions, because they embrace an Ultimate issue to be decided by the trier of fact, because they are irrelevant, and because they do not meet Daubert standards for admissibility.

         Crossclaim Defendant Bridgeview Bank Group's expert witness provided an opinion on the following issues: 1) the use of the term “Refer to Maker as a reason for a returned check; 2) whether Bridgeview Bank Group returned the checks in compliance with the time requirement set forth in the Code of Federal Regulations; 3) calculation of the annualized rate of return on investments; 4) at the time that Bridgeview Bank Group cleared incoming checks for payment, whether the SAA bank account had sufficient funds to pay the inclearing checks; and 5) whether Bridgeview Bank Group complied with the law and industry standards in charging overdraft fees.

         Crossclaim Defendant Bridgeview Bank Group responds that Mr. Garces was qualified to testify, Mr. Garces determined the appropriate regulatory standards by reviewing appropriate sources, and Mr. Garces considered factual information as to industry use of the "Return to Maker” return designation, the return of the First Deal and Second Deal Checks, Bridgeview Bank Group's “pay-all” check system, and Bridgeview Bank Group's overdraft services and overdraft fees. Crossclaim Defendant Bridgeview Bank Group further argues that Mr. Garces' conclusions are admissible because they are based on factual information that is verifiable and reliable, they are sufficiently documented, and they assist the trier of fact by explaining relevant issues which are beyond the experience of the average citizen.

         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 ...


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