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Falcone Global Sols., LLC v. Maurice Ward Networks, Ltd.

2022 WL 3699169 (N.D. Ga. 2022)

February 23, 2022

Cohen, Mark H., United States District Judge

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Summary

The court found that Falcone failed to properly disclose or supplement its damages claim, as required by the Federal Rules of Civil Procedure. Specifically, Falcone failed to disclose the job history figures from its FalcTrak system, which its expert relied on in his damage calculations. The court found that the datasets referenced by Falcone did not contain the job history figures, and that Falcone had not fulfilled its obligation to supplement its initial disclosures and discovery responses to support its claim for damages.

Additional Decisions

FALCONE GLOBAL SOLUTIONS, LLC, Plaintiff,
v.
MAURICE WARD NETWORKS, LTD., d/b/a Maurice Ward Group; Maurice Ward & Co., BV; and Maurice Ward & Co., S.R.O., Defendants

CIVIL ACTION FILE NO. 1:18-CV-3379-MHC

United States District Court, N.D. Georgia, Atlanta Division

Signed February 23, 2022

Counsel

Charlene S. McGowan, Office of the Georgia Attorney General, Atlanta, GA, Robert J. Kaufman, Alex Benjamin Kaufman, Hall Booth Smith P.C., Atlanta, GA, Kevin J. Lennon, Pro Hac Vice, Lennon, Murphy, Caulfield & Phillips, LLC, New York, NY, Richard J. Tillery, Gibbs Tillery, LLC, Decatur, GA, for Plaintiff.
John P. Kavanagh, Burr & Forman, LLP, Mobile, AL, Erin Cornelius Howell, Burr & Forman LLP, Birmingham, AL, Gregory F. Harley, Burr & Forman, LLP, Atlanta, GA, for Defendants Maurice Ward Networks, Ltd., Maurice Ward & CO., S.R.O.
John P. Kavanagh, Burr & Forman, LLP, Mobile, AL, Erin Cornelius Howell, Burr & Forman LLP, Birmingham, AL, Gregory F. Harley, Kwende B. Jones, Burr & Forman, LLP, Atlanta, GA, for Defendant Maurice Ward & CO., BV.

Cohen, Mark H., United States District Judge

ORDER

*1 This case comes before the Court on a number of pre-trial motions to exclude evidence. These can be broken down into two general areas of dispute.

The first set of motions are Plaintiff Falcone Global Solutions, LLC (“Falcone”)’s Motion to Strike, or in the Alternative, Motion in Limine (“Pl.’s Mot. in Limine”) [Doc. 99] and Motion to Exclude (“Pl.’s Mot. to Exclude I”) [Doc. 116], as well as Defendants Maurice Ward Networks, Ltd., Maurice Ward & Co. B.V., and Maurice Ward & Co., S.R.O. (collectively “Maurice Ward”)’s Motion to Exclude Plaintiff's Expert Witness (“Defs.’ Mot. to Exclude I”) [Doc. 118]. The Court will characterize these three motions collectively as the “Dutch Law Motions.”

The second set of motions are Maurice Ward's Motion to Strike and Motion to Exclude (“Defs.’ Mot. to Exclude II”) [Doc. 98] and Falcone's Motion to Exclude the Testimony of W. Dane Floyd (“Pl.’s Mot. to Exclude II”) [Doc. 117]. The Court will characterize these two motions collectively as the “Lost Profit Motions.”

I. BACKGROUND

A. Procedural History

Falcone filed its Complaint and Amended Complaint in the State Court of Fulton County on May 14, 2018, and June 13, 2018, respectively. Compl. [Doc. 1-1]; Am. Compl. [Doc. 1-2 at 3-19]. On July 13, 2018, Maurice Ward removed the action to this Court. Notice of Removal [Doc. 1]. Falcone filed its Second Amended Complaint on November 5, 2018. Second Am. Compl. [Doc. 16]. Falcone brought claims for breach of contract (Count I), breach of fiduciary duty (Count II), fraud (Count III), conversion of property (Count IV), and tortious interference with contractual relationship (Count V). Id. ¶¶ 47-91. On December 31, 2019, Maurice Ward filed a Motion for Summary Judgment [Doc. 44]. The Court granted summary judgment in favor of Maurice Ward as to Counts II through V, leaving only Count I for trial. Aug. 25, 2020, Order.

B. Background – The Dutch Law Motions

On June 30, 2021, counsel for Maurice Ward informed counsel for Falcone that they intended to retain Michiel Spanjaart (“Spanjaart”) as an expert at trial. E-mail from John P. Kavanaugh, Jr. to Robert J. Kaufman (June 30, 2021) [Doc. 104-3] at 1. Specifically, Spanjaart was identified as a legal professor and practicing attorney who would “offer testimony on the application and impact of Dutch law on the commercial relationship between Falcone Global Solutions and Maurice Ward entities.” Id. On July 30, 2021, Maurice Ward gave notice of its filing expert reports, including Spanjaart's Report [Doc. 97-2].

On August 31, 2021, Falcone filed the expert report of Frank G.M. Smeele (“Smeele”).[1] Smeele's Report [Doc. 107]. Smeele was retained by Falcone to proffer opinion on the applicability of Dutch law to the relationship between Falcone and Maurice Ward. Id. at 1-2.

*2 Falcone now moves to exclude any evidence of Dutch law or any expert related to the application of Dutch law in this case. Pl.’s Mot. in Limine at 10. Additionally, Falcone has filed a separate motion requesting the opinions and testimony of Spanjaart be excluded. Pl.’s Mot to Exclude I at 1-2. Not to be outdone, Maurice Ward has filed a Motion to Exclude Falcone's Dutch law expert, Smeele. Defs.’ Mot. to Exclude I at 1-2.

C. Background – The Lost Profit Motions

Falcone has proffered Theodore Brown (“Brown”) as a lost profit expert. Expert Report of Theodore Brown (“Brown's Report”) [Doc. 96-1]. Brown reported that he calculated lost profits using “job history figures from [Falcone's] FalcTrak system.” Id. at 10. Maurice Ward seeks to strike and exclude evidence of these job history figures on the ground that they were not provided in Falcone's initial discourse or otherwise disclosed in discovery; in addition, Maurice Ward seeks to prevent Brown from offering opinion testimony based on these materials for the same reasons. Defs.’ Mot. to Exclude II at 9. Maurice Ward argues that as a part of Falcone's Supplemental Initial Disclosures, its responses to Maurice Ward's interrogatories, and the subsequent communications between the parties, Falcone was under an obligation to disclose information regarding the computation of actual damages it seeks in this case, which includes the evidence from FalcTrak system at issue, but Falcone failed to provide this information. Id. at 1-9.

As a part of its Prayer for Relief, Falcone seeks to recover “[j]udgment against Defendants, jointly and severally, for breaches of contract and the duties of good faith and fair dealing in the amount to be proven at trial.” Second Am. Compl. Prayer for Relief at 22. Falcone was required to provide a computation of damages as follows as part of its initial disclosures:

In the space provided below, provide a computation of any category of damages claimed by you. In addition, include a copy of, or describe by category and location of, the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered, making such documents or evidentiary material available for inspection and copying as under Fed. R. Civ. P. 34. (Attach any copies and descriptions to Initial Disclosures as Attachment D.)

See LR 26.1B(1), NDGa., App. B. Form I.A. at (6). In its Supplemental Initial Disclosures dated February 27, 2019, Falcone indicated lost profit as a category of damages claimed by Falcone in the action as follows:

e. Loss of future profits for business lost from Forbo Flooring, B.V. (“Forbo”), in an amount to be proved at trial but not less than $7,000,000. In support of this claim, Falcone contends that as a direct result of Defendants’ actions, Forbo moved away from Falcone Global Solutions to another vendor for the following business units: 100% of Forbo Shanghai, Forbo Sydney, Forbo Korea, Forbo Toronto, Forbo Brazil; 100% of the Kirkcaldy to Dallas business; 90% of Forbo IsoTank Business; and the majority of its U.S. and Canadian airfreight business. Since 2015, the value of Falcone's profit from this business was approximately $6,921,000.

Falcone's Am. and Suppl. Initial Disclosures at 2-3 (“Falcone's Suppl. Disclosure”) [Doc. 98-1] (emphasis added). Falcone indicated that it would “produce documents supporting its claims for damages.” Id. at 3. There is nothing in the record to indicate that Falcone supplemented this disclosure.

*3 During discovery, Maurice Ward served the following interrogatory regarding damages:

14. Please itemize each and every category of damages sought in this case by dollar amount, including without limitation those categories of damages identified in Attachment C of Plaintiff's Initial Disclosures; describe how you calculated each amount; and describe the methodology you used to compute each amount. In addition, provide:

a. A summary of the facts reasonably known to you and upon which you may rely to support your position;

b. All witnesses upon whose testimony you may rely to support your position and a description of the relevant facts you believe are known by each person identified; and

c. A listing of all documents or other materials upon which you may rely to support your position.

Defs.’ Mot. to Exclude II at 2-3 (citing Interrogatory 14). Falcone objected and then responded, in relevant part, as follows:

Subject to this objection, Plaintiff has provided supplementation of its Initial Disclosures with an itemization and calculation of its damages claimed in this action. Plaintiff will also produce document supporting its claim for damages pursuant to Fed. R. Civ. P. 33(d).

Id. (emphasis added). The supplementation refers to Falcone's Supplemental Disclosure, which—as previously stated—says that “Falcone will produce documents supporting its claims for damages.” Falcone's Suppl. Disclosure at 3. However, there is no indication in the record that Falcone supplemented this interrogatory response.

The two parties then engaged in a series of communications related to disclosure of the relevant information. The key communications and relevant case deadlines can be chronologically summarized as follows:

• Fact discovery closed on November 29, 2019. See July 26, 2019, Order [Doc. 36].

• On July 29, 2020, Falcone's counsel attached two excel spreadsheets in an e-mail to Maurice Ward's counsel derived from data within FalcTrak 2.0 which Falcone claimed were “revenue and profit & loss sheets ... for the Forbo accounts for the period 2014 — 2019.” E-mail from Kaufman, Robert J. to jkavanaugh@burr.com (July 29, 2020) [Doc. 105-1] at 1. The first summary table, (“Summary Table 1”) includes Profits. Id. at 2. The second summary table, (“Summary Table 2”) includes Revenues. Id. at 3.[2]

• On June 30, 2021, Falcone produced the expert report of Brown. Brown's Report. Brown reported that he calculated lost profits using “job history figures from [Falcone's] FalcTrak system.” Id. at 10. The report included Appendix 1 which listed all documents considered by Brown. Id. at 26-36.

• On July 2, 2021, and on July 22, 2021, Maurice Ward's counsel reached out to Falcone's counsel asking for the materials in Appendix 1. See e-mail from John Kavanagh, Jr. to Robert J. Kaufman (July 2, 2021) [Doc. 98-4]; e-mail from John P. Kavanagh, Jr. to Robert J. Kaufman and Kevin J. Lennon (July 22, 2021) [Doc. 98-6] at 1.

• On July 26, 2021, Falcone's counsel attached a series of sixteen e-mails with links to 273 documents identified by Brown in his report. E-mail from Kavanagh, John (July 26, 2021) (“July 26, 2021 e-mail attachments”) [Doc. 98-7].

*4 • On July 30, 2021, Maurice Ward gave notice of filing their expert report for W. Dane Floyd (“Floyd”). See Expert Report of Floyd dated July 30, 2021 (“Floyd's Report”) [Doc. 97-1]. Maurice Ward proffers Floyd as an accounting expert, engaged to review the lost profit calculation conducted by Brown. Id. at 3.

• On August 6, 2021, Maurice Ward filed the underlying Motion to Strike and Motion to Exclude, Pl.’s Mot. to Exclude I, which is presently before the Court.

• On August 16, 2021, Falcone's counsel wrote Maurice Ward's counsel to clarify how Brown used the FalcTrak data and propose a resolution to the motion. Letter from Robert J. Kaufman to John P. Kavanagh, Jr. (Aug. 16, 2021) [Doc. 105-3].[3] Falcone offered Maurice Ward's expert access to its FalcTrak system for review. Id.

II. THE DUTCH LAW MOTIONS

A. Falcone's Motion in Limine[4]

Both parties cite to Federal Rule of Civil Procedure 44.1, which states:

A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law.

FED. R. CIV. P. 44.1. Falcone concedes that all notice requirements were satisfied. Pl.’s Reply in Supp. of Mot. to Strike, or in the Alternative, Mot. in Limine (“Pl.’s Reply in Supp. of Mot. in Limine”) [Doc. 110] at 5. The only question before the Court with respect to the Dutch Law Motions is whether the Dutch law evidence and testimony is “relevant material” within the confines of Rule 44.1.

“The only express limitation of Rule 44.1 is that the ‘material or sources’ the Court relies upon to determine foreign law are relevant, and therefore [Falcone] certainly may challenge the relevance of [Spanjaart's] opinions.” Havana Docks Corp. v. Carnival Corp., No. 19-CV-21724, 2021 WL 6066125, at *4 (S.D. Fla. Dec. 3, 2021), R&R adopted, No. 19-CV-21724, 2021 WL 6062829 (S.D. Fla. Dec. 22, 2021). See also Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018) (acknowledging that Courts may consider relevant material or sources); Trinidad Foundry and Fabricating, Ltd. v. M/V K.A.S. Camilla, 966 F.2d 613, 615 (11th Cir. 1992) (“When analyzing foreign law, the district court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”).

*5 This Court finds that Dutch law is not relevant to the consideration of the remaining issues in this case. The contract from which this dispute arises includes a Georgia choice-of-law provision, which this Court has previously applied to this case. Aug. 25, 2020, Order at 14-33 (applying Georgia law to all claims). This case involves the Independent Contractor/Agent Agreement, and the FGS 100 Terms and Conditions (“FGS T&C”) contract. Aug. 25, 2020, Order at 5-8. The FGS T&C provides that “[t]hese terms and conditions of service and the relationship of the parties shall be construed according to the laws of the State of Georgia without giving consideration to principals of conflict of law.” Id. at 8; FGS T&C [Doc. 1-1] at 4.

Where there is a choice of law issue in a case based on diversity jurisdiction, this Court must apply “the choice of law rules of the forum state to determine which substantive law governs the action.” U.S. Fid. & Guar. Co. v. Liberty Surplus Ins. Corp., 550 F.3d 1031, 1033 (11th Cir. 2008) (citation omitted). With respect to cases involving contracts, Georgia follows the traditional rule of lex loci contractus, which provides that “the validity, nature, construction, and interpretation of a contract are governed by the substantive law of the state where the contract was made....” Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assocs., Inc., 468 F.3d 1322, 1325 (11th Cir. 2006) (quoting Fed. Ins. Co. v. Nat'l Distrib. Co., Inc., 203 Ga. App. 763, 765 (1992)).

However, Georgia courts will uphold choice-of-law provisions included in contractual agreements, so long as they do not create public policy concerns. Rayle Tech, Inc. v. DeKalb Swine Breeders, 133 F.3d 1405, 1409 (11th Cir. 1998) (quoting Manderson & Assocs., Inc. v. Gore, 193 Ga. App. 723 (1989) (“Although Georgia courts adhere to the rule of lex loci contractus, ‘parties by contract may stipulate that the laws of another jurisdiction will govern the transaction[.]’ ”)); see also Jones v. People's Heritage Bank, 433 F. Supp. 2d 1328, 1330 n.2 (N.D. Ga. 2006) (“Georgia courts will uphold choice of law provisions provided that applying the law of the jurisdiction chosen by the parties to a contract does not contravene Georgia's public policy or prejudice the interests of Georgia.”) (citing Convergys Corp. v. Keener, 276 Ga. 808 (2003)). Maurice Ward has provided no authority showing that this Court should disregard the choice-of-of law provision in the FGS T&C. Defs.’ Resp. to Pl.’s Mot. in Limine at 4-5.

In its Motion for Summary Judgment, Maurice Ward argued that its actions were proper based on the Netherland's commercial court's approval of its retention act and its rights under Netherland's laws and regulations relating to forwarding and logistics (“FENEX conditions”). Id. at 20. However, the Court rejected Maurice Ward's arguments: “[n]either of these arguments provides this Court with guidance as to the applicable Georgia law.” Id. This case is therefore distinguishable from ones in which “the parties have raised an issue which requires the Court to determine the law of a foreign country.” Nigeria Nat. Petroleum Corp. v. S/V Seabulk Merlin, 410 F. Supp. 2d 1218, 1220 (S.D. Fla. 2005). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID. 401. Here, as determined in this Court's August 25, 2020, Order, Dutch law evidence and testimony is not relevant, and only Georgia law applies.

Accordingly, Falcone's Motion in Limine is GRANTED with respect to the Dutch law evidence and testimony.

B. Falcone's Motion to Exclude Spanjaart

Falcone moves to exclude all of Spanjaart's opinions regarding Dutch law and the FENEX conditions. Pl.’s Mot. to Exclude I at 2. Falcone contends that this information will not assist the trier of fact in understanding the evidence or determining a fact in issue. Id.

*6 Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702. The Supreme Court has directed that

[u]nlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledge ... is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.

Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592 (1993). Because Rule 702 permits a broader range of testimony, the Supreme Court has made clear that district courts must perform a critical “gatekeeping” function concerning the admissibility of all expert testimony to ensure that an expert witness's testimony is not only relevant, but reliable. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S. at 589 n.7, 597). In particular, district courts are “charged with screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007).

In performing this gatekeeping function, the Eleventh Circuit has developed “a rigorous three-part inquiry” to determine the admissibility of expert testimony under Rule 702, that 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 to determine a fact in issue.

Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). “While there is inevitably some overlap among the basic requirements—qualification, reliability, and helpfulness—they remain distinct concepts and the courts must take care not to conflate them.” Id.

“A district court's gatekeeper role under Daubert ‘is not intended to supplant the adversary system or the role of the jury.’ ” Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999)); accord Daubert, 509 U.S. at 596 (“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.”); Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1332, 1334 (11th Cir. 2014) (citations omitted) (“Bias in an expert witness's testimony is usually a credibility issue for the jury.... The risk of bias would mean, at most, that [the expert's] testimony is to some extent ‘shaky,’ and shakiness goes to the weight of her testimony, not its admissibility.”). Rather, the Court's role as a gatekeeper under Daubert “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152.

*7 The proponent of expert testimony “always bears the burden to show that his expert is qualified to testify competently regarding the matters he intended to address, the methodology by which the expert reached his conclusions is sufficiently reliable, and the testimony assists the trier of fact.” Frazier, 387 F.3d at 1260 (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (internal punctuation omitted)); see also Cook ex rel. Est. of Tessier, 402 F.3d at 1107 (explaining that it is the proponent's burden to lay the foundation for admission of expert testimony).

The Eleventh Circuit has cautioned that “[m]any factors will bear on the inquiry, and [there is no] definitive checklist or test.” Maiz, 253 F.3d at 665 (quoting Daubert, 509 U.S. at 593). While Daubert and its progeny provide flexible guidelines for the admissibility of evidence under Rule 702, “expert testimony that does not meet all or most of the Daubert factors may sometimes be admissible” based on the particular circumstances of a specific case. United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005); see also United States v. Scott, 403 F. App'x 392, 397 (11th Cir. 2010) (quoting Kumho Tire Co., 526 U.S. at 152) (finding that the Daubert factors are only general guidelines and the trial judge has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable”); Quiet Tech. D C-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (finding that the court should consider the Daubert factors “to the extent possible” but that “these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis”).

1. Whether Spanjaart is Qualified

There are various ways for determining whether an expert is qualified. “While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status.” Frazier, 387 F.3d at 1260-61. Federal Rule of Evidence 702 provides that an expert's qualification may be based on “knowledge, skill, experience, training, or education.” See also FED. R. EVID. 702 advisory committee's note (2000 amends.) (“Nothing in this amendment is intended to suggest that experience alone ... may not provide a sufficient foundation for expert testimony.”). Thus, “there is no mechanical checklist for measuring whether an expert is qualified to offer opinion evidence in a particular field.” Santos v. Posadas de P.R. Assocs., 452 F.3d 59, 63 (1st Cir. 2006). Rule 702 requires an expert witness relying solely on experience to “explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Frazier, 387 F.3d at 1261 (citing FED. R. EVID. 702 advisory committee's note (2000 amends.)).

The Court finds that Spanjaart is qualified through his experience and his education. Spanjaart is a Dutch lawyer, who is presently a lecturer at the University of Leuven. Spanjaart's Report at 1, 8. In addition to his legal experience, he also has a PhD from Erasmus University Rotterdam. Id. at 8. Moreover, the parties do not dispute that Spanjaart is qualified. Pl.’s Mot. to Exclude I (making no mention of Spanjaart's qualifications); Maurice Ward's Resp. to Pl.’s Mot. to Exclude Test, of Michiel Spanjaart (“Defs.’ Resp. to Pl.’s Mot. to Exclude I”) [Doc. 120] at 2. The Court therefore finds that Spanjaart is qualified to testify as an expert.

2. Whether Spanjaart's Testimony Will Assist the Trier of Fact[5]

*8 Whether expert testimony is helpful turns on whether the expert testimony “concerns matters that are beyond the understanding of the average lay person.” Frazier, 387 F.3d at 1262. “Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.” Id. at 1262-63. Falcone contends that Spanjaart's opinions are irrelevant because Georgia law governs this controversy, and any mention of Dutch law or FENEX conditions will not assist the trier of fact. Pl.’s Mot. to Exclude I at 4-6. For the reasons previously discussed, the Court finds that Spanjaart's testimony as it relates to Dutch law is not relevant to any matter at issue in this case and, therefore, will not assist the trier of fact. However, to the extent Spanjaart's testimony will be offered as to general maritime customs, or any other relevant topics outside the context of Dutch law, he is permitted to do so.[6]

Accordingly, Falcone's Motion to Exclude Spanjaart is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to Spanjaart's opinion as to the application of Dutch law. In all other respects, the motion is DENIED.

C. Maurice Ward's Motion to Exclude Smeele

Maurice Ward moves to exclude the testimony of Smeele because his report was disclosed after the deadline to submit expert reports. Defs.’ Mot. to Exclude I at 1-2. The parties dispute whether Smeele is an expert witness or a rebuttal witness, and they dispute whether there is in fact a timeliness concern. Defs.’ Mot to Exclude at 2-4; Pl.’s Resp. to Defs.’ Mot. to Exclude Pl.’s Expert Witness (“Pl.’s Resp. to Defs.’ Mot. to Exclude I”) [Doc. 119] at 2-3. Pretermitting these issues, the Court finds that Smeele's testimony should be excluded.

First, this Court notes that Smeele's testimony is captured in the scope of Falcone's own Motion in Limine, seeking to exclude Dutch law testimony—which the Court has granted. See Pl.’s Motion in Limine at 1-2 (“Plaintiff asks this Court to issue an order prohibiting, excluding, limiting, and suppressing any and all evidence, proffers, tenders, comments, statements, testimony, colloquy, or any utterance at trial with respect to ... arguments that Dutch law should apply to this case; ... [and] implications or speculations of the effect of Dutch law on the facts of this case.”).

Second, the Court finds the testimony would not be helpful to the trier of fact for the same reason that Spanjaart's testimony would not be helpful—namely because it has already been decided that Georgia law, not Dutch law, applies to this case. Falcone essentially concedes Smeele's lack of potential assistance and relevance in its response, acknowledging its pending in limine and stating “[d]epending on this Court's judgment on that motion, the Dutch Law experts may not even be needed in this case.” Pl.’s Resp. to Defs.’ Mot. to Exclude I at 8. Even more directly, Falcone states that if the respective motion to strike is granted, “then Dr. Smeele's testimony holds little value.” Id. at 9.

The Court therefore GRANTS Maurice Ward's Motion to Exclude Smeele.

III. THE LOST PROFIT MOTIONS

A. Maurice Ward's Motion to Strike[7] and Motion to Exclude

*9 The Federal Rules of Civil Procedure place an affirmative obligation on parties, “without awaiting a discovery request,” to provide to the other parties:

a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered ....

FED. R. CIV. P. 26(a)(1)(A)(iii). Consistent with this rule, this Court's Local Rules state that “[t]he court has prepared a form, Initial Disclosures, which counsel shall be required to use.” LR 26.1B(1), NDGa. The form instructs the plaintiff to

provide a computation of any category of damages claimed.... In addition, include a copy of, or describe by category and location of, the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered, making such documents or evidentiary material available for inspection and copying as under Fed. R. Civ. P. 34.

LR 26.1B(1), NDGa., App. B, Form I.A. Further, parties have a continuing duty to supplement their initial disclosures and discovery responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing....” FED. R. CIV. P. 26(e)(1)(A).

If a party fails to properly disclose or supplement information “as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). “The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (citation and quotation omitted). “Rule 37(c), which is a ‘self-executing sanction for failure to make a disclosure,’ is ‘the more effective enforcement’ mechanism of the disclosure requirement when ‘the party required to make the disclosure would need the material to support its own contentions.’ ” Barron v. Fed. Reserve Bank of Atlanta, 129 F. App'x 512, 519 (11th Cir. 2005) (quoting FED. R. CIV. P. 37, advisory committee's note (1993)).

Maurice Ward asserts that Falcone failed to produce the internal records that their expert, Brown, relied on in his analysis; accordingly, Maurice Ward moves the Court to “strike and exclude Plaintiff's use of undisclosed evidence in support of its damages claims,” and also asks the Court to exclude “Brown's opinion based on the non-disclosed material.” Defs.’ Mot. to Exclude II at 1-2.

1. Were the “Job History Figures From [Falcone's] FalcTrak System” Disclosed?

The primary issue before the Court with respect to the Lost Profit Motions is whether Falcone properly disclosed the “job history figures from [Falcone's] FalcTrak system,” which Brown relied on in his damage calculations. Brown's Report at 10. The federal rules, the interrogatory requests, the initial disclosures, and the expert report calculations all obligated Falcone to disclose the computations of its damages calculations; however, despite this obligation, the record before the Court indicates that Falcone failed to disclose the job history figures at issue.

*10 Falcone contests the fact that it failed to disclose the job history figures, claiming that that: “[a]ll materials that Mr. Brown relied upon were disclosed to Defendants.” Pl.’s Opp'n to Defs.’ Mot. to Exclude II (“Pl.’s Resp.”) [Doc. 105] at 1-2. In response to the criticism that it failed to properly disclose its damages calculations, Falcone identifies six e-mail communications as proof that the FalcTrak job history figures have been disclosed:

1. E-mail from Kevin Lennon to Kavanaugh, John (July 26, 2021) (“E-mail #9”) [Doc. 98-7 at 12-14] includes a link to Falcone Docs for Production that has contained at pp 12-19 FalcTrak 2.0 Shipment Records for Forbo Jobs.

2. E-mail from Kevin Lennon to Kavanaugh, John (July 26, 2021) (“E-mail #11”) [Doc. 98-7 at 9-11] includes links to FGS003184_110414766_1XLSX and FGS003185_110414767_1.XLSX, which are excel spreadsheets derived from data within FalcTrak 2.0 and partially reflect Forbo job profits.

3. E-mail from Kevin Lennon to Kavanaugh, John (July 26, 2021) (“E-mail #14”) [Doc. 98-7 at 5-6] includes a link to Profit 110414839 1.XLSX, which is another excel spreadsheet derived from data within FalcTrak 2.0 and partially reflects Forbo job profits.

4. E-mail from Kevin Lennon to Kavanaugh, John (July 26, 2021) (“E-mail #15”) [Doc. 98-7 at 3-4] includes a link to Rev and Profit Report—Forbo 2018 110414834 1.XLSX, which is another excel spreadsheet derived from data within FalcTrak 2.0 and partially reflects Forbo job profits.

5. Summary Table 1 from e-mail from Kaufman, Robert J. to jkavanaugh@burr.com (July 29, 2020).

6. Summary Table 2 from e-mail from Kaufman, Robert J. to jkavanaugh@burr.com (July 29, 2020).

Pl.’s Resp. at 2-4 (citing July 26, 2021 e-mail attachments, e-mail from Kaufman, Robert J. to jkavanaugh@burr.com (July 29, 2020), and e-mail from Kaufman, Robert J. to Kavanagh, John (Oct. 27, 2020)).[8]

A thorough review of the materials presented by Falcone reveals that Falcone did not properly disclose or supplement its damages claim. The Court finds that the FalcTrak job history figures which Brown relied upon are not contained in the possible universe of these relevant data sets. Brown stated that he calculated lost profits by taking lost sales less the incremental expenses. Brown's Report at 6. In order to calculate lost profits, Brown “had to establish a historic baseline of revenue earned and costs incurred by [Falcone] when performing jobs for Forbo Flooring.” Id. at 10. Brown explains that “[u]sing job history figures from [Falcone's] FalcTrak system, I was able to identify the number of jobs and actual revenues recognized by [Falcone] for the period of January 2016 through December 2018.” Id. at 10. He then states that he “identified the costs associated with the revenues for the period 2016 through 2018.” Id. (emphasis added).

The Court has reviewed the datasets referenced by Falcone, and finds that the costs figures associated with the year 2016 are absent. Only E-mail #9 and E-mail #15 contain anything that possibly resembles costs. E-mail #9 includes the shipment records for Forbo jobs, and it includes excel headers labeled “amount” “paid” and “due.” E-mail #9. Assuming arguendo that one of these categories equates to cost, this data set does not include any figures from the year 2016, and is instead limited to invoices from 2017 and 2018. Id. E-mail #15 contains a column titled “cost.” E-mail #15. However, this data set is only for the time period of January 1, 2018, to December 31, 2018. Id. And even if Maurice Ward attempted to calculate Falcone's cost using revenue less profit, this is not possible with the data provided. Even though the Summary Table 1 contains profits, and Summary Table 2 provides revenue, large data gaps exist. E-mail from Kaufman, Robert J. to jkavanaugh@burr.com (July 29, 2020). For example, a total of sixteen row labels do not include profit for 2016. Id.

*11 Additionally, the Court notes a few other factors that reduce the credibility of Falcone's assertion that all the information relied on by Brown was disclosed. Falcone itself implicitly concedes that the job profit data e-mailed to Maurice Ward is incomplete, referring to it three different times as “partially” reflecting “Forbo job profits.” Pl.’s Resp. at 3. Furthermore, Falcone acknowledged that it had not sent over all information relied upon by Brown in an e-mail on July 8, 2021. E-mail from Robert Kaufman to Kavanagh, John (July 8, 2021) [Doc. 98-5] (“[Falcone] will be providing the requested information upon which our expert relied.”). In short, Falcone has not presented sufficient evidence to indicate that it has fulfilled its obligation to supplement its initial disclosures and discovery responses to support its claim for damages.

2. Was the Non-Disclosure Substantially Justified or Harmless?

“Because [Falcone] failed to provide the [job history figures from Falcone's FalcTrak system] in accordance with Rule 26(a), the Court must next determine whether [Falcone's] failure was substantially justified or harmless.” Lincoln Rock, LLC, 2016 WL 6138653, at *8; see also FED. R. CIV. P. 37(c)(1) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”). Maurice Ward argues there can be no substantial justification because the only way for Maurice Ward to assess the alleged damages is to see Falcone's job history figures, and Maurice Ward requested the supporting documentation on multiple occasions. Defs.’ Mot. to Exclude II at 8. Maurice Ward also argues any alleged omission is not harmless because, without this information, Maurice Ward cannot properly evaluate its economic exposure and prepare defenses; additionally, Maurice Ward's expert witness did not have the benefit of the missing materials in forming his opinions. Id. at 8-9; Floyd Decl. ¶ 8 (“[T]he information relied upon by Mr. Brown to reach and/or verify his conclusions has not been provided.... As a result, I have been unable to fully analyze Mr. Brown's opinions and Falcone's calculation of alleged damages in this case.”).

Falcone failed to address substantial justification it in its response, which results in that portion of Maurice Ward's argument being unopposed. See Pl.’s Resp.; Kramer v. Gwinnett Cnty., 306 F. Supp. 2d 1219, 1221 (N.D. Ga. 2004) (“[A] party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed”). With respect to harmlessness, Falcone contends that Maurice Ward does not demonstrate prejudice, and because Falcone has disclosed the materials—both in the July 29, 2020, e-mail, and the August 16, 2021, letter—there is no basis for prejudice. Pl.’s Resp. at 10. Falcone further argues that any such failure is harmless since Falcone offered Maurice Ward access to FalcTrak, Maurice Ward may cross-examine Brown, and further disclosure can be directed by the Court. Id. at 11.

In considering whether Falcone's failure to comply with its discovery obligations and disclose information related to its damage calculation was harmless, the Court considers: (1) the importance of the testimony, (2) the reasons for the failure to disclose the information earlier, and (3) the prejudice to the opposing party if the information is admitted. Bearint ex rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1353 (11th Cir. 2004). Although information regarding Falcone's actual damages and damages calculation is important to Falcone, allowing Falcone to present expert testimony on this issue without disclosing the data forming the basis of the expert testimony would unduly prejudice Maurice Wards See Advanced Polymer Tech. Corp. v. Textile Mgmt. Assocs., Inc., No. 4:08-CV-0018-HLM, 2010 WL 11506590, at *8 (N.D. Ga. July 7, 2010) (finding that the plaintiff would suffer prejudice if the defendants were allowed to amend the pretrial order to allow new damages calculations after the close of discovery). This case is distinguishable from instances where the non-disclosure was found to be harmless. See, e.g., Select Exp. Corp. v. Richeson, No. 10-80526-CIV, 2011 WL 13227934, at *3 (S.D. Fla. Apr. 29, 2011 (holding that non-disclosure was harmless because the defendants in fact possessed the documents that supported the plaintiff's claims).

*12 Falcone's predicament is of its own making. If Falcone intended to present evidence of lost profit damages, it should have disclosed the information supporting such calculations during fact discovery to enable Maurice Ward to conduct its own discovery regarding those claims. Fact discovery regarding the claims remaining in this case terminated on November 29, 2019, and the deadline for expert depositions was August 31, 2021. July 26, 2019, Order; Jan. 11, 2021, Scheduling Order [Doc. 83].

Additionally, Falcone's attempt to remedy its legal obligation to disclose information through an offer to Maurice Ward to login to the FalcTrak system almost two years after the deadlines for fact discovery and expert depositions does not absolve Falcone from failing to meet its legal disclosure requirements pursuant to FED. R. CIV. P. 26(a)(1)(A)(iii). Finally, the Court notes that Maurice Ward's relief is consistent with the Court's previous order denying a Motion to Reopen Limited Discovery:

Obviously, in the event Falcone purports to rely upon documents to support its damage claims that have not been produced to Maurice Ward in response to previous discovery requests, Maurice Ward will be able to make an appropriate objection to exclude those documents from being offered into evidence or from being otherwise relied upon by Falcone. See FED. R. CIV. P. 37(c)(1).

March 25, 2021, Order [Doc. 95] (emphasis added).

Accordingly, the Court finds that Falcone was not substantially justified in failing to disclose information regarding actual damages and its damages calculation, and its failure to do so was not harmless. The Court will not consider the non-disclosed evidence (job history figures from FalcTrak) from Brown's Report and will preclude Falcone from offering any such evidence at trial. See, e.g., GPI Int'l Ltd. v. IBC Creative LLC, No. L07-CV-1540-ODE, 2009 WL 10671357, at *3 (N.D. Ga. Sept. 16, 2009), aff'd, 396 F. App'x 661 (11th Cir. 2010) (holding that evidence of a category of damages should be excluded in light of the fact that the defendants did not provide the documents supporting the computation of their damages claim).

B. Falcone's Motion to Exclude Floyd

Falcone moves to exclude the entirety of Floyd's testimony. Pl.’s Mot. Exclude II at 1. Maurice Ward proffers Floyd as a certified public accountant, engaged to review the lost profit calculation conducted by Brown. See Floyd's Report at 3. Falcone contends that (1) Floyd's opinions should be excluded because they are not reliable in light of the fact that Floyd's analysis looked at data from Falcone's ocean freight shipping business as a whole—namely Falcone's Federal Income Tax returns—rather than exclusively assessing the damage Maurice Ward caused to Falcone with respect to Forbo, and (2) the trier of fact will not be assisted by Floyd's testimony because the financial performance of Falcone's ocean shipping business as a whole is not relevant to the case. Pl.’s Mot. to Exclude II at 3, 7-9.

1. Whether Floyd is Qualified

The Court finds that Floyd is qualified through his experience and his education. Floyd is a partner at his accounting firm, Aldridge Borden & Company, P.C. Floyd's Report at 3. He also is a Certified Public Accountant, and his areas of expertise include consulting, auditing, accounting, and tax services. Id. Floyd has previously been qualified as an expert in courts in Alabama for matters involving commercial and economic disputes. Id. Moreover, neither party contests that Floyd is qualified. See Pl.’s Mot. to Exclude II (making no mention of Floyd's qualification); Maurice Ward's Resp. to Pl.’s Mot. to Exclude II (“Defs.’ Resp. to Pl.’s Mot. to Exclude II”) [Doc. 121] at 2.

2. Whether Floyd's Testimony is Reliable

*13 The district court has “substantial discretion in deciding how to test an expert's reliability and whether the expert's relevant testimony is reliable.” United States v. Majors, 196 F.3d 1206, 1215(11th Cir. 1999) (citation and quotation omitted). “[T]he proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable.” Allison, 184 F.3d at 1312 (citation omitted). Thus, the inquiry into reliability must focus on “principles and methodology” and not the expert witness's conclusions. Daubert, 509 U.S. at 595. While an expert's qualifications may bear on the reliability of his proffered testimony, qualifications alone do not guarantee reliability. Frazier, 387 F.3d at 1261 (citing Quiet Tech. D C-8, 326 F.3d at 1341-42). Because “one may be considered an expert but still offer unreliable testimony,” it remains a basic foundation for admissibility under Rule 702 and Daubert that proposed expert testimony must be based on “good grounds.” Id.

Daubert delineates a list of “general observations” for determining whether expert testimony is sufficiently reliable to be admitted under Rule 702, including: (1) whether the theory in question can be and has been empirically tested; (2) whether the theory in question has been subjected to peer review and publication; (3) the theory's known or potential error rate and whether that rate is acceptable; and (4) whether the theory is generally accepted in the scientific community. Daubert, 509 U.S. at 593-594. The advisory committee notes for Rule 702 identify additional factors that courts consider in assessing the reliability of expert testimony:

(1) Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.

(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion.

(3) Whether the expert has adequately accounted for obvious alternative explanations.

(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting.

(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

FED. R. EVID. 702 advisory committee's note (2000 amends.) (internal quotation marks and citations omitted).

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply taking the expert's word for it.

Frazier, 387 F.3d at 1261 (internal quotation omitted) (citing FED. R. EVID. 702 advisory committee's note (2000 amends.) (emphasis added)).

Falcone asserts that without analyzing the client-specific information contained in FalcTrak, Floyd was unable to provide analysis of Falcone's revenue, costs, and profit related to Forbo specifically. Pl.’s Mot. to Exclude II at 4-5. First, and most importantly, the Court attributes Floyd's inability to rely on the internal, FalcTrak data to the previously discussed failure of Falcone to disclose the entire universe of data relied on by Brown. See also Floyd's Report at 13 n.25. In the Court's view, Falcone's failure to disclose this information, alone, is enough to deny Falcone's motion. This Court has “substantial discretion in deciding how to test an expert's reliability and whether the expert's relevant testimony is reliable.” Majors, 196 F.3d at 1215 (citation and quotation omitted). However, notwithstanding Falcone's failure to disclose the data for which it now critiques Brown's analysis, there are several additional reasons that persuade the Court exclusion is improper.

*14 First, the Court finds Falcone's “fit” argument to be without merit. Falcone contends the data relied on by Floyd is materially different from the data relevant to the facts of the case. Id. at 9 (citing In re Omeprazole Pat. Litig., 490 F. Supp. 2d 381, 401 (S.D.N.Y. 2007) (“Thus, even if the methodology used by the expert is considered to be reliable, the expert's testimony will nevertheless fail to meet the ‘fit’ requirement and should be excluded if the data relied upon by the expert is materially different from the data relevant to the facts of the case.”)). The sole complaint of Falcone is that the data set used by Floyd is over-encompassing and fails to solely focus on Forbo. However, this is not a case where two different sets of data were used but one where Brown relied on a subset of the data that Floyd relied on—leaving Falcone's “fit” argument without merit. See McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (recognizing the relevance and fit requirements of Daubert); see also In re 3M Combat Arms Earplug Prod. Liab. Litig., No. 3:19MD2885, 2021 WL 765019, at *2 (N.D. Fla. Feb. 28, 2021) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 147(1997) (“Expert testimony does not ‘fit’ when there is ‘too great an analytical gap’ between the facts and the proffered opinion.”). Moreover, Falcone's generic financial information is still relevant to lost profits, even if it is insufficient to independently determine the loss directly attributable to Falcone's business with Forbo. Additionally, the scope of Floyd's report is not limited to the Federal Income Tax returns analysis, and he in fact provides criticism of Brown that is entirely unrelated to his Federal Income Tax calculations. See, e.g., Floyd's Report at 15-19 (finding that Brown's analysis was based on the wrong company, and that Brown fails to consider causation).

Falcone asserts in a conclusory fashion that Floyd's approach is unreliable without any support or discussion of Floyd's method or process. In particular, Falcone fails to mention any of the general observations from Daubert, and makes no mention of Rule 702’s reliability factors. In fact, Falcone makes no mention at all of Floyd's actual methodology. Yet this conclusory objection is meaningless given the fact that Supreme Court has made it clear that “the inquiry into reliability must focus on ‘principles and methodology[.]’ ” Interra Int'l, LLC v. Al Khafaji, No. L16-CV-1523-MHC, 2019 WL 13023729, at *3 (N.D. Ga. Mar. 21, 2019) (quoting Daubert, 509 U.S. at 595)).

Finally, the Court agrees with Maurice Ward that Falcone's criticism goes to the weight of the evidence and is proper fodder for cross-examination rather than reliability. Defs.’ Resp. to Pl.’s Mot. to Exclude II at 2; see also Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (internal quotation and citation omitted) (“[A]s a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration.”).

3. Whether Floyd's Testimony Will Assist the Trier of Fact

Falcone recycles its same reliability argument discussed above—pointing only to Floyd's failure to analyze Forbo specific data—and attempts to dress it up as an assistance argument, asserting that the trier of fact will not be assisted due to Floyd's failure to consider the more detailed financial data. Pl.’s Mot. to Exclude II at 3, 7. In fact, Falcone's brief combines its reliability arguments and its assistance to the trier of fact into one section, using the same argument for both and making no distinction as to what points support unreliability and what points support lack of assistance. Id. at 7-9. Other courts in this district have critiqued similar arguments:

Stoneridge argues that Bowman's opinion will not assist the trier of fact in determining damages because his opinion is not based on any reliable methodology. Again, Stoneridge conflates the prongs of the Daubert analysis. Certainly, unreliable expert witness testimony should be excluded because of the risk that a trier of fact will place undue significance on it, but this is the purpose of the reliability prong. The Court has already determined that Bowman's methodology is sufficiently reliable.

SIS, LLC v. Stoneridge Holdings, Inc., No. 1:17-CV-01816-SDG, 2021 WL 2650355, at *4 (N.D. Ga. May 28, 2021).

As previously discussed, Falcone was the cause of Floyd not having access to the more detailed financial data. Additionally, the scope of Floyd's report is not centered entirely on the Federal Income Tax returns analysis and he in fact provides criticism of Brown that is entirely unrelated to his Federal Income Tax calculations. Finally, the at-large Falcone information is relevant to the lost profit discussion even if it is not dispositive of the issue. The Court finds that the accounting principles discussed by Brown are “beyond the understanding of the average layperson.” Frazier, 387 F.3d at 1262. Floyd's “conclusions will help inform the jury's decisions as to damages.” Putnam v. Henkel Consumer Adhesives, Inc., No. CIV.A.1:05-CV-2011-BBM, 2007 WL 4794115, at *9 (N.D. Ga. Oct. 29, 2007).

IV. CONCLUSION

*15 For the forgoing reasons, it is hereby ORDERED that:

• Falcone's Motion in Limine [Doc. 99] seeking to exclude Dutch law evidence and testimony is GRANTED, and its alternative Motion to Strike is DENIED.

• Falcone's Motion to Exclude the Opinions of Maurice Ward's Expert Michiel Spanjaart [Doc. 116] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to Spanjaart's opinion as to Dutch law. In all other respects, the motion is DENIED.

• Maurice Ward's Motion to Exclude Plaintiff's Expert Witness [Doc. 118] is GRANTED.

• Maurice Ward's Motion to Strike and Motion to Exclude [Doc. 98] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to the job history figures from the FalcTrak system. In all other respects, the motion is DENIED.

• Falcone's Motion to Exclude Floyd's Testimony [Doc. 117] is DENIED.

It is further ORDERED that the parties shall file their joint proposed consolidated pretrial order within thirty (30) days. See LR 16.4, NDGa.

IT IS SO ORDERED this 23rd day of February, 2022.

Footnotes

[1]

The resume of Falcone's expert indicates his name is spelled “Smeele” (Curriculum Vitae Prof. Dr. Frank G.M. Smeele [Doc. 107-1]). Curiously, the parties (including Falcone) consistently refer to him in their briefs as “Smelee” [Docs. 118, 119, 123]. The Court will refer to him by the name he calls himself.

[2]

On October 27, 2020, Falcone's counsel sent an e-mail to Maurice Ward's counsel, this time copying Judge Catherine M. Salinas, including the same two excel summary tables: Summary Table 1 and Summary Table 2. E-mail from Kaufman, Robert J. to Kavanagh, John (Oct. 27, 2020) [Doc. 105-2].

[3]

The letter stated that Brown “based his opinion as expressed in his expert report on compilations of data” contained within FalcTrak 2.0 and “confirmed the dat[a] via randomly generated samples of Forbo job transactions in which he was able to match revenue, costs and profits with no discrepancies.” Id. at 1. The letter further noted that Brown “visually verified that each transaction contained a build-up of items with associated costs and revenues, as well as varying amounts of supporting documents, all of which can be clicked on and viewed within FalcTrak 2.0.” Id. at 2.

[4]

For some reason, Falcone has styled its motion in limine in the alternative as a “motion to strike.” As this Court previously has indicated, a motion to strike is utilized to strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” from “a pleading.” See Aug. 25, 2020, Order [Doc. 72] at 2 n.1 (quoting FED. R. CIV. P. 12(f)). The Court will consider Falcone's motion as a motion in limine. To the extent it seeks to “strike” Spanjaart, the motion is DENIED.

[5]

The parties fail to address Spanjaart's reliability in their initial briefs. See Pl.’s Mot. to Exclude I; Defs.’ Resp. to Pl.’s Mot. to Exclude I. Accordingly, the Court takes no position on whether Spanjaart is a reliable witness, because the initial briefs do not speak to his reliability; in particular, neither party discusses Spanjaart's methodology or principles, the cornerstones of reliability. Daubert, 509 U.S. at 595. Falcone raises reliability for the first time in its reply brief. Pl.’s Reply Br. in Supp. of Mot. to Exclude I [Doc. 122] at 6-9. However, the Court will not consider arguments raised for the first time in a reply. See United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (“Arguments raised for the first time in a reply brief are not properly before the reviewing court.”); Murphy v. Farmer, 176 F. Supp. 3d 1325, 1342 (N.D. Ga. 2016) (“It is common practice for the Court not to hear arguments raised for the first time in a reply brief.”) (citation omitted).

[6]

It is unclear to the Court whether Spanjaart intends to opine as to anything beyond Dutch law. On the one hand, Maurice Ward initially mentioned only Dutch law as the subject matter to which Spanjaart was going to testify. E-mail from John P. Kavanaugh, Jr. to Robert J. Kaufman (June 30, 2021) at 1 (stating that Spanjaart would “offer testimony on the application and impact of Dutch law on the commercial relationship between Falcone Global Solutions and Maurice Ward entities.”). On the other hand, Maurice Ward appears to imply that Spanjaart may testify as to maritime shipping customs, which may potentially be outside the scope of Dutch law. Defs.’ Resp. to Pl.’s Mot. to Exclude I at 5. The Court therefore leaves open the door for Spanjaart to testify as to the non-Dutch law matters.

[7]

As this Court has previously indicated (see n.2, supra), motions to strike are only vehicles for challenging matters contained in the pleadings. See FED. R. CIV. P. 12(f). However, as discussed below, Rule 37 still permits the relief sought by Maurice Ward—having the Court disregard Falcone's damage calculation from Brown's Report and disallowing such argument at trial. See, e.g., Lincoln Rock, LLC v. City of Tampa, No. 8:15-CV-1374-T-30JSS, 2016 WL 6138653, at *8 (M.D. Fla. Oct. 21, 2016) (granting a motion to strike the plaintiff's supplemental Rule 26 disclosure and exclude the supplemental report and testimony of an expert); K & H Dev. Grp., Inc. v. Howard, 255 F.R.D. 562, 568 (N.D. Fla. 2009) (granting a motion to strike an expert's supplemental report).

[8]

The Court notes that E-mail #11 contains two excel sheets (FGS003184_110414766_1.XLSX and FGS003185_110414767_1.XLSX) that are duplicates of data contained in E-mail #14 and E-mail #15, respectively.