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Regions Bank v. Kaplan

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

March 31, 2017

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

          ORDER

          ELIZABETH A. KOVACHEVICH UNITED STATES DISTRICT JUDGE

         This cause is before the Court on:

Dkt. 573-1 Declaration of Richard Fechter
Dkt. S-582 Report of Richard Fechter (Sealed)
Dkt. 720 Oral Motion in Limine (Daubert) Regarding Testimony of Witness Richard Fechter

         At trial on May 5, 2016, Defendants/Counterclaimants Marvin I. Kaplan, R1A Palms, LLC, Triple Net Exchange, LLC, MK Investing, LLC and BNK Smith, LLC, (“Kaplan Parties”) moved in limine to exclude the testimony and report of witness Richard Fechter. The Court heard oral argument. (Dkt. 723).

         The Kaplan Parties argued that Mr. Fechter's opinion was specific to the issues of check kiting and bank fraud. The Kaplan Parties argued that Mr. Fechter's testimony would not assist the trier of fact because Mr. Fechter's opinion includes legal conclusions and issues of ultimate fact. The Kaplan Parties further argued that Mr. Fechter's testimony was not relevant to the issues the Court must determine.

         Richard Fechter was retained by the Regions Bank to review the deposit account activity between the Kaplan Accounts with Regions Bank and the SAA Account with Bridgeview Bank Group, from the Kaplan Accounts' opening through closure, and to render an expert opinion whether that account activity constituted check kiting.

         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 intends to address;
2. The methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert: and
3. The testimony assists the trier of fact, through the application of scientific, technical or specialized expertise, to understand the evidence or ...

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