FNB Bank v. Park National Corp.

996 F. Supp. 2d 1187, 2014 WL 289184, 2014 U.S. Dist. LEXIS 9453
CourtDistrict Court, S.D. Alabama
DecidedJanuary 27, 2014
DocketCivil Action No. 13-0064-WS-C
StatusPublished
Cited by3 cases

This text of 996 F. Supp. 2d 1187 (FNB Bank v. Park National Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FNB Bank v. Park National Corp., 996 F. Supp. 2d 1187, 2014 WL 289184, 2014 U.S. Dist. LEXIS 9453 (S.D. Ala. 2014).

Opinion

ORDER

WILLIAM H. STEELE, Chief Judge.

The plaintiff has filed a motion to strike the expert testimony of defense expert Donald Coker. (Doc. 160). The defendants have filed a response, (Doc. 167), and the motion is ripe for resolution.

The plaintiffs motion is filed pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “Under Daubert and its progeny, we conduct a three-part inquiry to determine the admissibility of expert testimony....” Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171, 1183 (11th Cir.2013). “Expert testimony may be admitted into evidence if: (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.” City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir.1998) (quoted in Tampa Bay Water, 731 F.3d at 1183). The burden of establishing these three requisites lies with the proponent. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (en banc).1

[1189]*1189I. Qualifications.

The plaintiff argues that Coker is not qualified to render expert opinions regarding participation loans. (Doc. 160 at ISIS). An expert may be qualified “by knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. Despite his 40+ years experience as a banker and banking consultant, the plaintiff denies that Coker has such qualifications as to participation loans because: (1) he has not been employed as a banker since 1988; (2) he has had no experience with participation loans since the early 1990s; (3) his curriculum vita does not describe any “specific experience” with participation loans; and (4) in his deposition, he likewise did not describe any “specific experience, education, or training” dealing with participation loans. (Doc. 160 at 14-15).

Coker’s expert report states that his “background and experience include a significant amount of training in all areas of banking and mortgage banking including ... participations....” (Doc. 161, Exhibit A, 3). His “education, training, work, and management experience include specific experience in development and construction financing and loan participations.” (Id., 4). Moreover, his “experience as a banking regulator included handling many development and construction loans and numerous loan participations.” (Id.).

In his deposition, Coker testified that he had experience with participation loans, which he managed or was otherwise involved with, at every bank with which he was employed between 1968 and 1986, excluding only a one-year stint with Ford

Motor Credit. At least at Commercial Credit, where he worked from 1977 to 1983, he handled “a lot” of participations. After concluding his regular banking employment in 1986, he managed two insolvent banking institutions for over two years, each of which had “a lot” of partic-ipations. In the early 1990s, Coker did consulting work involving loan partic-ipations for the FDIC concerning two other institutions. (Coker Deposition at 19-22, 28-29; Doc. 161, Exhibit A at 37).

It is clear from this evidence that Coker has more than adequate experience with participation loans to offer expert testimony concerning them in this case. While the plaintiff decries the absence of more detail concerning Coker’s “specific experience” with participation loans (what the plaintiff might have in mind is left unstated), it cites no authority for the proposition that such detail is a necessary predicate to admissibility, and it ignores its own failure to seek such information when it deposed Coker. And while the plaintiff suggests that Coker’s qualifying training and experience is dated, it does not assert that participation loan practices, standards and so forth changed at all in the 12-15 years between his last experience and the subject participation loan, much less that they changed so radically as to render his experience and training an unsuitable predicate for expert testimony. The plaintiffs challenge to Coker’s qualifications to testify as an expert is rejected.

II. Opinions Contrary to the Evidence.

The plaintiff argues that expert opinions are inadmissible if they are contrary to the [1190]*1190facts of the case. (Doc. 160 at 15-16). The Supreme Court decision to which the plaintiffs authority may be traced provides that, “when indisputable record facts contradict or otherwise render the [expert] opinion unreasonable, it cannot support a jury’s verdict.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). To the extent that Coker’s opinions rest on assumed facts that have been established as non-existent, the plaintiff may have an argument for exclusion, but the only two instances it cites do not involve such a situation.

First, the plaintiff challenges Coker’s assumption that Darrell Melton had no decision-making authority in regard to the Marine Park development. (Doc. 160 at 17). It appears uncontroverted that Melton originated the Loan, but the plaintiffs own evidence is that Melton did not make the decision to make the Loan but only gathered information for underwriting and presented the proposed loan to a committee to approve or disapprove. (Rhode Deposition at 65). While the plaintiff has some evidence that Melton may have helped administer the Loan, (id. at 65-66), the defendants have the affidavit of Melton himself, who denies any such activity. (Doc. 134, Exhibit H, 3). Since Melton’s decision-making authority is not “indisputable,” Coker’s opinions cannot be excluded on that basis.

Second, the plaintiff opposes Coker’s testimony that he disagrees with defendant Park’s assessment of the Loan (material overfunding issues and material cost oveiTuns) and of the quality of Vision’s management and administration of the Loan (poor). (Doc. 160 at 17-18). But the plaintiff has not attempted to show that Park’s assessment of the situation constitutes an “indisputable record fac[t]” that Coker (and the jury) must accept; on its face, Park’s assessment appears to be in the nature of an opinion, with which Coker is of course free to disagree.

III. Factual Testimony.

The plaintiff asserts that an expert cannot be used as a “vehicle for factual narrative.” (Doc. 160 at 19 (internal quotes omitted)).

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996 F. Supp. 2d 1187, 2014 WL 289184, 2014 U.S. Dist. LEXIS 9453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fnb-bank-v-park-national-corp-alsd-2014.