In Uncategorized on 02/17/2022 at 18:17

The CLE-mongers haven’t yet picked up on “win your case with a motion in limine”, but IRS has them in their toolchest for every job. Here’s Judge Elizabeth A. (“Tex”) Copeland to show us how proffered expert testimony may survive exclusion, but suffer substantial weight reduction, in Estate of Anne Milner Fields, Deceased, Bryan K. Milner, Executor, Docket No. 1285, filed 2/17/22, part of a coupled entry.

Bryan wants to put in the expert reports of a doctor and some unspecified financial person, to what end is unclear, but IRS’ objections certainly are.

“Respondent does not appear to dispute that Dr. M is a qualified physician. And while we agree that the treating physician would likely provide a more robust and credible account of Ms. Milner Fields’ medical condition…, these challenges go to the weight and credibility that we should give to the expert report and not its admissibility. We do however note that attached to Dr. M’s expert report as Exhibit D is a declaration of Ms. Milner Fields’ treating physician, Dr. G, which declaration is clearly hearsay. However, under Federal Rule of Evidence 703, such a declaration can be used to explain the basis of Dr. M’s expert opinion. Exhibit D will not be received for the truth of its contents at trial but may be considered for the purposes of understanding or explaining Dr. M’s opinion. Based on the foregoing, we will deny the Motion in Limine that relates to Dr. M’s report.” Order, at p. 3. (Names omitted). (Citations omitted, but get them for your briefs file).

As for the financial person, IRS claims she only used ordinary methods, and that no specialized knowledge was necessary. IRS also objected that her numbers were wrong, but she pointed out that IRS’ rebuttal numbers were also wrong.

“Finally, Respondent argues that Ms. B’s opinion as to whether Ms. Milner Fields retained sufficient assets for her support outside of the assets contributed to [partnership] is a legal issue. We disagree as this issue relates to a factual dispute relevant to a legal issue in this case. Respondent’s challenges, other than Ms. B’s qualifications as an expert with specialized knowledge, go to the weight and credibility that we should give the expert report’s conclusions and not its admissibility. Because there remains an issue of specialized knowledge better addressed at trial, we will hold the Motion in Limine that relates to Ms. B’s report in abeyance.” Order, at p. 5. (Name omitted).

So the Doc weighs in, but in the lightweight category. The financial expert may not make the weight.


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