United States District Court, M.D. Florida, Tampa Division
ELIZABETH A. KOVACHEVICH UNITED STATES DISTRICT JUDGE
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
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).
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.
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.
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. 137,
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 ...