When Dixieland Boondockery is the “nôtre chef propose” plat on the prix fixe menu, you may be sure that expert testimony is heading up the hors d’oeuvres. And so it is with Ranch Springs, LLC, Ranch Springs Investors, LLC, Tax Matters Partner, Docket No. 11794-21, filed 6/13/24. Judge Albert G. (“Scholar Al”) Lauber digs right in.

To begin with, if you’ll pardon an arcane technical term, the fier kashes of expertise: (1) will the expert’s specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) is the testimony based on sufficient facts or data; (3) is the testimony the product of reliable principles and methods; and (4) does the expert’s opinion reflect a reliable application of the principles and methods to the facts of the case.

Sufficient facts and date means more than an expert’s say-so. An expert’s experience certainly counts, but her/his report must be more than the two pages TL (name omitted), a member of Ranch Springs, proffers.

OTOH, the report of JS (name omitted) might pass muster, but it was wild-carded in after the Scheduling Order cut-off.

“The [JS] report was not exchanged with respondent and lodged with the Court by the deadline established by the Pretrial Scheduling Order. The Court may exclude an expert report where the opposing party is denied a reasonable opportunity to tender its own expert report in response. See Rule 143(g)(2). Untimeliness apart, the [JS] report in several respects fails to comply with the requirements of Rule 143(g) governing expert witness reports. For both reasons we will exclude his testimony from the forthcoming trial.” Order, at p. 4. (Footnote omitted).

The missing footnote says JS is not a percipient witness, that is, one who was on the scene when the deal went down, but one brought in after the fact to bolster one party’s position. Allowing JS in would let him make an end-run around the Scheduling Order, ambushing IRS.

Expert TF’s addendum (name omitted) might make the cut, if petitioner’s witness B (name omitted) will swear that he relied upon the stuff in TF’s addendum to reach his own conclusions. But TF can’t testify his own self, nor add to what B attached to his own report.

But wait, there’s more, as the midnight telehucksters say.

TF has a rebuttal report to counter IRS’ expert. But much of it is a direct report, which mostly ignores IRS’ expert, despite the requirement that rebuttal is limited to rebutting the opponent’s expert, point by point, not raising new or different matters.

Judge Scholar Al properly leaves disposition to trial, where it belongs.

“The Court is currently inclined to strike some, but not all, of [TF]’s proposed rebuttal report as a disguised affirmative opening report that was untimely filed. We will hear argument at trial regarding the portions of his report that are properly regarded as providing true rebuttal, either at the start of trial or when [TF] is called as a witness, as the parties prefer.” Order, at p. 7.

Finally, Judge Scholar Al has to deal with who are party opponents per FRE 801(d)(2), to allow in admissions against interest by direct and indirect parties, who are roped in by old Section 6231(a)(2). Judge Scholar Al lists those who IRS claims are roped in, but the Ranch Springs can contest that at trial.

Which is where most of this argy-bargy belongs.