United States District Court, S.D. Florida
AIM RECYCLING OF FLORIDA, LLC and LKQ PICK YOUR PART SOUTHEAST, LLC, Plaintiffs,
METALS USA, INC., UNIVERSAL SCRAP MANAGEMENT, LLC, OBED LENDIAN, and SAMUEL ABREU, Defendants.
OMNIBUS ORDER ON DAUBERT MOTIONS
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Defendants Metals
USA, Inc. (“Metals USA”) and Obed Lendian's
“Defendants”) Motion to Exclude Testimony of Richard
Brady, ECF No.  (“Defendants' Motion”),
and Plaintiffs AIM Recycling of Florida, LLC
(“AIM”) and LKQ Pick Your Part Southeast,
LLC's (“LKQ”) (collectively,
“Plaintiffs”) Daubert Motion to Exclude
Certain Testimony of Defendants' Rebuttal Expert, Thomas
McRee, ECF No.  (“Plaintiffs' Motion”),
(collectively, the “Motions”). The Court has
carefully reviewed the Motions, all opposing and supporting
submissions, the attached exhibits, the record in this case,
the applicable law, and is otherwise fully advised. For the
reasons set forth below, Defendants' Motion is denied,
and Plaintiffs' Motion is denied.
initiated the instant RICO action on February 9, 2018, ECF No.
, and they filed their Amended Complaint on April 10,
2018, against Metals USA, Universal, Lendian, and Abreu,
alleging a multi-year conspiracy to steal valuable scrap
metal from Plaintiffs' facility, ECF No. 
(“Amended Complaint”). Plaintiffs' Amended
Complaint asserts five counts: Count I (Civil RICO -
Violations of 18 U.S.C. § 1962(c)); Count II (Civil RICO
Conspiracy - Violations of 18 U.S.C. § 1962(d)); Count
III (Florida Civil RICO and Remedies for Criminal
Activities); Count IV (Florida Civil RICO and Remedies for
Criminal Activities - Conspiracy); and Count V (Unjust
Enrichment). Id. Plaintiffs seek all actual and
consequential damages, including treble damages, arising from
the conduct alleged in the Amended Complaint. Id.
parties have filed the instant Motions seeking to exclude
expert witness and rebuttal expert testimony. Defendants'
Motion seeks to exclude the testimony of Plaintiffs'
expert witness, Richard Brady (“Mr. Brady”),
pursuant to Daubert, Kumho Tire Co. v.
Carmichael,  and Federal Rules of Evidence 403 and 702.
Defendants set forth three arguments as to why Mr.
Brady's testimony should be excluded: (1) Mr. Brady's
damages calculation is based exclusively on a spreadsheet
prepared by Plaintiffs, and he did not conduct any
independent investigation or analysis to confirm the accuracy
of the information in the spreadsheet; (2) Mr. Brady's
methodology for calculating damages is flawed and inherently
unreliable; and (3) Mr. Brady's education, training, and
experience do not qualify him to render a lost profit
calculation. See ECF No. . Plaintiffs'
Motion seeks to exclude certain portions of the testimony of
Defendants' rebuttal expert, Thomas McRee (“Mr.
McRee”), pursuant to Daubert and its progeny,
because, in addition to his rebuttal opinions, he intends to
offer non-rebuttal opinions, which are unhelpful and
impermissible legal conclusions for which he lacks the
requisite qualifications. See ECF No. .
Plaintiffs also note that Mr. McRee's testimony should be
excluded because, during his deposition, Mr. McRee withdrew
certain opinions previously offered after reviewing
translated transcripts of audio recordings of allegedly
incriminating telephone conversations between Lendian and
Court will address each Motion in turn.
Rule of Evidence 702 governs the admissibility of expert
testimony. When a party proffers the testimony of an expert
under Rule 702, the party offering the expert testimony bears
the burden of laying the proper foundation, and that party
must demonstrate admissibility by a preponderance of the
evidence. See Rink v. Cheminova, Inc., 400 F.3d
1286, 1291-92 (11th Cir. 2005); Allison v. McGhan Med.
Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). To
determine whether expert testimony or any report prepared by
an expert may be admitted, the Court engages in a three-part
inquiry, which includes 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; and (3) the testimony
assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.
See City of Tuscaloosa v. Harcros Chems., Inc., 158
F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509
U.S. at 589). The Court of Appeals for the Eleventh Circuit
refers to each of these requirements as the
“qualifications, ” “reliability, ”
and “helpfulness” prongs. United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). While
some overlap exists among these requirements, the court must
individually analyze each concept. See id.
expert in this Circuit may be qualified “by knowledge,
skill, experience, training, or education.” J.G. v.
Carnival Corp., No. 12-21089-CIV, 2013 WL 752697, at *3
(S.D. Fla. Feb. 27, 2013) (citing Furmanite Am., Inc. v.
T.D. Williamson, 506 F.Supp.2d 1126, 1129 (M.D. Fla.
2007); Fed.R.Evid. 702). “An expert is not necessarily
unqualified simply because [his] experience does not
precisely match the matter at hand.” Id.
(citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir.
2001)). “[S]o long as the expert is minimally
qualified, objections to the level of the expert's
expertise go to credibility and weight, not
admissibility.” See Clena Invs., Inc. v. XL
Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)
(citing Kilpatrick v. Breg, Inc., No. 08-10052-CIV,
2009 WL 2058384, at *1 (S.D. Fla. June 25, 2009)).
“After the district court undertakes a review of all of
the relevant issues and of an expert's qualifications,
the determination regarding qualification to testify rests
within the district court's discretion.”
J.G., 2013 WL 752697, at *3 (citing Berdeaux v.
Gamble Alden Life Ins. Co., 528 F.2d 987, 990 (5th Cir.
determining whether an expert's testimony is reliable,
“the trial judge must assess whether the reasoning or
methodology underlying the testimony is scientifically valid
and . . . whether that reasoning or methodology properly can
be applied to the facts in issue.” Frazier,
387 F.3d at 1261-62 (citation omitted) (quotation marks
omitted). To make this determination, the district court
examines: “(1) whether the expert's theory can be
and has been tested; (2) whether the theory has been
subjected to peer review and publication; (3) the known or
potential rate of error of the particular scientific
technique; and (4) whether the technique is generally
accepted in the scientific community.” Id.
(citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK
Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)). “The
same criteria that are used to assess the reliability of a
scientific opinion may be used to evaluate the reliability of
non-scientific, experience-based testimony.”
Id. at 1262 (citing Kumho Tire Co., 526
U.S. at 152). Thus, these factors are non-exhaustive, and the
Eleventh Circuit has emphasized that alternative questions
may be more probative in the context of determining
reliability. See Id. Consequently, trial judges are
afforded “considerable leeway” in ascertaining
whether a particular expert's testimony is reliable.
Id. at 1258 (citing Kumho Tire Co., 526
U.S. at 152).
final element, helpfulness, turns on whether the proffered
testimony “concern[s] matters that are beyond the
understanding of the average lay person.” Edwards
v. Shanley, 580 Fed.Appx. 816, 823 (11th Cir. 2014)
(quoting Frazier, 387 F.3d at 1262). “[A]
trial court may exclude expert testimony that is
‘imprecise and unspecific,' or whose factual basis
is not adequately explained.” Id. (quoting
Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty.,
Fla., 402 F.3d 1092, 1111 (11th Cir. 2005)). To be
appropriate, a “fit” must exist between the
offered opinion and the facts of the case. McDowell v.
Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (citing
Daubert, 509 U.S. at 591). “For example, there
is no fit where a large analytical leap must be made between
the facts and the opinion.” Id. (citing
Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)).
Daubert, a district court must take on the role of
gatekeeper, but this role “is not intended to supplant
the adversary system or the role of the jury.”
Quiet Tech., 326 F.3d at 1341 (citations omitted)
(quotation marks omitted). Consistent with this function, the
district court must “ensure that speculative,
unreliable expert testimony does not reach the jury.”
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253,
1256 (11th Cir. 2002). “[I]t is not the role of the
district court to make ultimate conclusions as to the
persuasiveness of the proffered evidence.” Quiet
Tech., 326 F.3d at 1341 (citations omitted) (quotation
marks omitted). Thus, the district court cannot exclude an
expert based on a belief that the expert lacks personal
credibility. Rink, 400 F.3d at 1293, n.7. To the
contrary, “vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” Quiet Tech.,
326 F.3d at 1341 (quoting Daubert, 509 U.S. at 596).
“Thus, ‘[o]n cross-examination, the opposing
counsel is given the opportunity to ferret out the
opinion's weaknesses to ensure the jury properly
evaluates the testimony's weight and
credibility.'” Vision I Homeowners Ass'n,
Inc. v. Aspen Specialty Ins. Co., 674 F.Supp.2d 1321,
1325 (S.D. Fla. 2009) (quoting Jones v. Otis Elevator
Co., 861 F.2d 655, 662 (11th Cir. 1988)). Ultimately, as
noted, “a district court enjoys ‘considerable
leeway' in making” evidentiary determinations such
as these. Cook, 402 F.3d at 1103 (quoting
Frazier, 387 F.3d at 1258).
this lens, the Court analyzes each Motion.
seek to exclude the following opinions - which they
characterize as either “review-based
opinions” or “experience-based
opinions” - offered by Mr. Brady:
Opinion 1: Metals USA purchased scrap from Abreu at an
average freight-adjusted discount exceeding 38 percent of
fair market value on a shipping point basis, Free on Board
(“FOB”) Plaintiffs' facility.
Opinion 2: During the period of the alleged thefts, there was
no point in time in which Plaintiffs could not have sold the
finished shredded product in the open market for a price
exceeding what Defendants achieved.
Opinion 3: The loss incurred by Plaintiffs is a function of
the selling prices they were able to achieve in the open
market on actual sales of shred during the period,
considering the foregone sales resulting from the theft of
40, 000 net tons of shred.
Opinion 4: Records of comparable sales achieved by Plaintiffs
during the relevant time periods demonstrates that
Plaintiffs' total damages in this case are $10, 419,
Opinion 5: Metals USA records show instances where the
finished product was likely purchased by Metals USA at prices
lower than the prices Plaintiffs paid for raw materials ...