NOLALUNA, LLC * NO. 2024-CA-0555
VERSUS * COURT OF APPEAL
E. HOWELL CROSBY, * FOURTH CIRCUIT CHAFFE MCCALL, LLP, AND ABC INSURANCE COMPANY * STATE OF LOUISIANA
*******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04216, DIVISION “A” Honorable Ellen M. Hazeur, Judge ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Randall A. Smith Dylan T. Leach Andre M. Stolier SMITH & FAWER, L.L.C. 201 St. Charles Avenue, Suite 3702 New Orleans, LA 70170
Emile A. Bagneris, III Suzette P. Bagneris THE BAGNERIS FIRM, LLC 1929 Jackson Ave New Orleans, LA 70113
COUNSEL FOR PLAINTIFF/APPELLANT
James R. Swanson John Bel Edwards Sharonda R. Williams Rebekka C. Veith C. Hogan Paschal FISHMAN HAYGOOD L.L.P. 201 St. Charles Avenue, 46th Floor New Orleans, LA 70170
COUNSEL FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED MAY 6, 2025 This is a legal malpractice case. Plaintiff/appellant, Nolaluna, LLC JCL (“Nolaluna”), appeals the May 17, 2024 and May 21, 2024 judgments excluding SCJ
RDJ two expert witnesses from testifying at trial, and the May 17, 2024 judgment
granting summary judgment and dismissing all of Nolaluna’s claims against
defendants/appellees, E. Howell Crosby (“Crosby”) and Chaffe McCall, LLP
(“Chaffe”). For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
This litigation stems from Nolaluna’s retention of Crosby and the law firm,
Chaffe, to represent Nolaluna in connection with launching its circus nightclub
business. According to Nolaluna, Crosby failed to obtain a conflict of interest
waiver or give Nolaluna advice to obtain separate legal counsel in connection with
Crosby’s own financial interest in a business, Crosby Land & Resources, LLC
(“Crosby Land”), which provided financing to Nolaluna. Nolaluna alleges that
Crosby failed to provide adequate advice regarding the terms and consequences of
said financing, which effectively precluded it from obtaining additional investment
1 and financing and, in 2016, led to the failure of Nolaluna’s business before it
opened, and thereafter, Crosby Land assumed the lease on the property that
Nolaluna intended for its business premises. Nolaluna claims that, through these
conflicts of interest, Crosby and Chaffe deprived Nolaluna of business
opportunities resulting in the business failure and ensuing damages.
Nolaluna filed its petition for damages on May 2, 2017, alleging negligence,
breach of contract, breach of fiduciary duty, and legal malpractice against Crosby
and Chaffe. To support its claims, Nolaluna retained three expert witnesses, two of
whom included Stan Feig (“Feig”) and Ralph Litolff (“Litolff”). Feig was retained
as an expert in the entertainment and live theater industry to provide insight into
the viability of Nolaluna’s business model. Feig, who had more than 50 years of
experience in the entertainment business, including dinner cirques in other cities,
reviewed Nolaluna’s business plan and opined that the dinner cirque concept was
viable. Litolff, a forensic accountant, was retained as an expert in economic and
financial analysis to testify regarding the financial viability of the project and to
assess the damages Nolaluna incurred.
This litigation was eventually set for trial on June 17, 2024. Meanwhile, on
April 12, 2024, Crosby and Chaffe filed the three motions at issue in this appeal:
(1) Motion for Summary Judgment that Nolaluna’s Future Lost Profits Damages
are Impermissibly Speculative; (2) Motion to Exclude the Testimony of Nolaluna’s
Circus Expert Stan Feig; and (3) Motion to Exclude the Testimony of Nolaluna’s
Damages Expert Ralph Litolff. Collectively, through these motions, Crosby and
2 Chaffe argued that neither witness was qualified to provide expert testimony
supporting Nolaluna’s claims for damages, and that the evidence of Nolaluna’s
damages was too speculative to prevail at trial.
On May 13, 2024, the district court held hearings on both motions to
exclude. No witnesses testified, and the district judge granted both motions in open
court. On May 17, 2024, the hearing proceeded on the motion for summary
judgment, which the district court granted and signed a written judgment on the
same date. Also, on May 17, 2024, the district court rendered a written judgment
granting the motion to exclude Litolff’s testimony. On May 21, 2024, the district
court signed the judgment granting the motion to exclude Feig’s testimony. This
appeal followed.
LAW AND ANALYSIS
Assignments of Error
On appeal, Nolaluna sets forth three assignments of error, as follows:
1. The district court’s exclusion of Nolaluna’s industry expert, Stan Feig, was an abuse of discretion.
2. The district court’s exclusion of Nolaluna’s damages expert, Ralph Litolff, was an abuse of discretion.
3. The district court erred in granting summary judgment on Nolaluna’s damages.
Standards of Review and Applicable Legal Principles
This appeal involves the interplay between a motion to exclude expert
testimony (a Daubert1 motion) and a motion for summary judgment. Through its
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).
3 motions, Crosby and Chaffe sought to exclude the testimony of two of Nolaluna’s
expert witnesses and obtain the dismissal of Nolaluna’s claims on the basis of its
inability to prove damages.2 A motion for summary judgment and a Daubert
motion each serves a distinct function and is subject to a particular procedure,
which we discuss herein.
Daubert Motion Procedure
An appellate court reviews a lower court’s ruling on a motion to exclude an
expert witness’s testimony for an abuse of discretion. Anderson v. City of New
Orleans, 24-0252, p. 4 (La. App. 4 Cir. 5/1/24), 390 So.3d 402, 405. However,
legal error with respect to the admissibility of expert testimony is reviewed de
novo. Allen v. Eagle Inc., 22-0386, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d 808,
814.
A Daubert motion uses “the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and
adopted by our Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122
(La. 1993),” and enlists the district court to “perform a ‘gatekeeping’ function to
‘ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.’ ” Allen, 22-0386, p. 9, 346 So.3d at 814-15 (quoting
Versluis v. Gulf Coast Transit Co., 08-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17
2 See generally Cox, Cox, Filo, Camel & Wilson, LLC v. Louisiana Workers’ Comp. Corp., 21-
00566, p. 11 (La. 3/25/22), 338 So.3d 1148, 1157 (“loss of business income or profits is a type of special damages that must be proved with reasonable certainty and cannot be based on speculation or conjecture”).
4 So.3d 459, 463 and citing Daubert, 509 U.S. at 589, 113 S.Ct. at 2795). Using this
procedure, a party may challenge a witness’s qualifications to testify as an expert
by knowledge, skill, experience, training, or education or the methodology used by
the expert in reaching his opinion. See generally Melerine v. Tom’s Marine &
Salvage, LLC, 20-00571, p. 16 (La. 3/24/21), 315 So.3d 806, 817; La. C.C.P. art.
1425.
The relevant procedure is set forth in La. C.C.P. art. 1425(F), which, at the
time of the hearings in dispute,3 provided in relevant part:
(1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the
3 As amended in Acts 2024, No. 371, § 1, La. C.C.P. art. 1425(F)(1) currently states:
A party seeking to challenge whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable under Code of Evidence Articles 702 through 705 shall file a motion for a pretrial hearing. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
The 2024 comment to this article explains:
The amendment to Paragraph F of this Article makes clear that a pretrial hearing is necessary to determine whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable. This would change the result reached by the First Circuit in Williams v. State Farm Mutual Automobile Insurance Company, 322 So.3d 795, 797 (La. App. 1 Cir. 2021), in which the court held that the use of the permissive “may” did not mandate a pretrial motion to challenge the qualifications of an expert.
5 trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.
(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.
Louisiana Code of Evidence Article 702(A) 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 the proponent demonstrates to the court that it is more likely than not that:
(1) 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;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The Supreme Court recognized that “[a]n expert may provide testimony
based on information obtained from others, and the character of the evidence upon
which the expert bases an opinion affects only the weight to be afforded the
expert’s conclusion.” Certain Underwriters at Lloyd’s London v. United States
Steel Corp., 19-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122 (citation omitted).
Moreover, “the character of the evidence upon which the expert bases an opinion
6 affects only the weight to be afforded the expert’s conclusion … and may serve as
a basis for attack by defendants on cross-examination at trial, but it does not make
his opinion evidence inadmissible under Daubert.” Allen, 22-0386, p. 10, 346
So.3d at 815 (quoting MSOF Corp. v. Exxon Corp., 04-0988, p. 16 (La. App. 1 Cir.
12/22/05), 934 So.2d 708, 720).
Summary Judgment Procedure
A court of appeal reviews a district court’s ruling on a motion for summary
judgment de novo. Patrick v. Triay, 22-0766, p. 4 (La. App. 4 Cir. 1/26/23), 357
So.3d 872, 875. The purpose of the summary judgment procedure is to “pierce the
pleadings and to assess the evidence to determine if there are any genuine issues of
material fact requiring a trial.” Id., 22-0766, p. 5, 357 So.3d at 875. A genuine
issue of material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for a trial on
that issue and summary judgment is appropriate. Larson v. XYZ Ins. Co., 16-0745,
pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416 (citing Hines v. Garrett, 04-0806, p. 1
(La. 6/25/04), 876 So.2d 764, 765-66). A district court cannot make credibility
determinations or weigh conflicting evidence on a motion for summary judgment.
Allen, 22-0386, p. 5, 346 So.3d at 812.
In summary, the district court examines the motion, memorandum, and
properly admitted supporting documents, and – without weighing conflicting
evidence or assessing credibility – determines whether the mover is entitled to
judgment under the applicable substantive law. See Patrick, 22-0766, pp. 4-5, 357
7 So.3d at 875; Allen, 22-0386, p. 5, 346 So.3d at 812; La. C.C.P. art. 966(A)(3). The
burden of proof rests with the mover, but if the mover will not bear the burden of
proof at trial, the mover must only point out the absence of factual support for one
or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(D)(1).
The burden then shifts to the adverse party who has the burden to produce
sufficient factual support to establish the existence of a genuine issue of material
fact or that the mover is not entitled to judgment as a matter of law. Bercy v. 337
Brooklyn, LLC, 20-0583, pp. 3-4 (La. App. 4 Cir. 3/24/21), 315 So.3d 342, 345
(citing La. C.C.P. art. 966(D)(1)).
The current version of Article 966 contains mandatory deadlines for filing
and serving a motion for summary judgment, opposition, and reply, and for
conducting a summary judgment hearing.4 The record shows no dispute that the
motions were filed and heard timely within the mandatory pretrial deadlines in La.
4 Under La. C.C.P. art. 966:
B. Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions: (1) Except for any document provided for under Subsubparagraph (A)(4)(b) of this Article, a motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313(A)(4) not less than sixty- five days prior to the trial. … C. (1) Unless otherwise agreed to by all of the parties and the court: (a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date. (b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing. (2) For good cause shown, the court may order a continuance of the hearing. (3) The court shall render a judgment on the motion not less than twenty days prior to the trial.
8 C.C.P. arts. 1425(F) and 966(B)-(C). Even so, in 2023, the legislature amended La.
C.C.P. art. 966 to add Subsection (D)(3), explicitly requiring that Daubert
challenges to summary judgment evidence must be heard and disposed of before
the summary judgment hearing:
If a timely objection is made to an expert’s qualifications or methodologies in support of or in opposition to a motion for summary judgment, any motion in accordance with Article 1425(F) to determine whether the expert is qualified or the expert’s methodologies are reliable shall be filed, heard, and decided prior to the hearing on the motion for summary judgment.
La. C.C.P. art. 966(D)(3).
Summary Judgment Motion Regarding Damages
“As a general rule ‘damages for loss of profits may not be based on
speculation and conjecture; however, such damages need be proven only within
reasonable certainty.’ ” PVCA, Inc. v. Pac. W. TD Fund LP, 20-0327, p. 14 (La.
App. 4 Cir. 1/20/21), 313 So.3d 320, 331 (quoting Breton Sound Oyster Co., LLC
v. Stiel Ins. Co. of New Orleans Inc., 17-0955, p. 14 (La. App. 4 Cir. 12/12/18),
299 So.3d 80, 90). “Broad latitude is given in proving lost profits because this
element of damages is often difficult to prove and mathematical certainty or
precision is not required.” Id. “The allowance of loss of profits as an element of
damages is more liberal in actions purely in tort, as opposed to actions for breach
of contract.” Breton Sound Oyster Co., LLC, 17-0955, p. 14, 299 So.3d at 90
(quoting Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La. App. 4th
9 Cir. 1985)). The plaintiff bears the burden of proof that the loss of profits is “more
probable than not.” Id.
Importantly, Crosby and Chaffe filed their motion for summary judgment
and motions to exclude on the same date, 66 days before trial was scheduled. The
following timeline is relevant to the issues in this appeal.
April 12, 2024 motion for summary judgment and motions to exclude filed
May 13, 2024 hearing on motions to exclude; rulings from the bench
May 17, 2024 hearing on motion for summary judgment
May 17, 2024 summary judgment signed
May 17, 2024 judgment excluding Litolff’s testimony signed
May 21, 2024 judgment excluding Feig’s testimony signed
June 17, 2024 scheduled trial date
We find that Crosby and Chaffe introduced conflicting evidence of
Nolaluna’s damages, which precluded summary judgment. Specifically, Crosby
and Chaffe attached to their motion the expert reports and deposition testimony of
both Feig and Litolff, who opined respectively that Nolaluna’s business concept
was viable and projected $15 million in future damages from lost profits. Crosby
and Chaffe contended that these opinions of Nolaluna’s damages were
impermissibly speculative and failed to demonstrate that Nolaluna met its burden
of proof for trial. The effect of Crosby and Chaffe introducing the reports and
testimony themselves is that they did not properly object to the admissibility of the
10 expert testimony; they sought to have the district court review it and deem it
insufficient to meet Nolaluna’s burden of proof.
Under La. C.C.P. art. 966(D)(2), “[t]he court shall consider only those
documents filed or referenced in support of or in opposition to the motion for
summary judgment but shall not consider any document that is excluded pursuant
to a timely filed objection.” Article 966(D)(2)-(3) provides two means of objecting
to summary judgment evidence:
(1) An “objection to a document shall be raised in a timely filed opposition or reply memorandum.” La. C.C.P. art. 966(D)(2).
(2) An “objection … to an expert’s qualifications or methodologies in support of or in opposition to a motion for summary judgment” is brought under La. C.C.P. art. 1425(F) and “shall be filed, heard, and decided prior to the hearing on the motion for summary judgment.” La. C.C.P. art. 966(D)(3).
Crosby and Chaffe sought to implicate paragraph (D)(3): filing a separate
motion objecting to the expert’s qualifications or methodologies. They did not,
however, object to the admissibility of the expert opinions in any opposition or
reply as contemplated in paragraph (D)(2). Quite the opposite, they introduced the
reports and testimony themselves via their own summary judgment motion. The
district court recognized this at the hearing, and the transcript reflects that no party
objected to any summary judgment evidence, and the district court considered all
evidence introduced.
We find that an objection to an expert’s qualifications or methodology under
article 1425(F) is a distinct, separate inquiry and is not a replacement for an
objection to the admissibility of summary judgment evidence under article
11 966(D)(2). As noted above, four days before the summary judgment hearing, the
district court conducted a Daubert hearing and orally granted the motions to
exclude Feig’s and Litolff’s testimony at trial. However, Nolaluna’s experts’
opinions were part of the summary judgment evidence, and the district court was
required to consider them in determining whether any genuine issue of material
fact existed for trial.
In the absence of an objection raised in a timely opposition or reply
memorandum, the district court is “statutorily obligated to consider the expert’s
opinions” introduced in support of a summary judgment motion. Sketchler v.
Hernandez, 20-0292, p. 8 (La. App. 1 Cir. 5/19/21), 326 So.3d 912, 918 (citing La.
C.C.P. art. 966(D)(2) and Mariakis v. N. Oaks Health Sys., 18-0165, p. 11 (La.
App. 1 Cir. 9/21/18), 258 So.3d 88, 96). “At that point, in determining whether the
evidence creates a genuine issue of material fact, the trial court cannot make
credibility determinations, evaluate testimony, or otherwise weigh the evidence.”
Sketchler, 20-0292, p. 8, 326 So.3d at 918.
Under La. C.C.P. art. 966(D)(2), the lower court properly considered the
documents filed in support of and in opposition to the motion for summary
judgment to which no objection was made. However, the district court erred in
overlooking that the expert testimony submitted by Crosby and Chaffe
demonstrated that genuine material issues regarding damages remained. Feig
provided opinion testimony that Nolaluna’s business concept was viable and would
be profitable, and Litolff provided opinion testimony providing projected damages
12 calculations. The district court was not permitted to weigh the evidence or assess
the experts’ credibility. In doing so, district court erroneously conflated the
standard for summary judgment with the standard for excluding an expert witness
from testifying at trial. With the opinion testimony under the district court’s
consideration, the summary judgment evidence demonstrated that genuine issues
of material fact remained as to Nolaluna’s damages. Summary judgment was
improper and must be reversed.
We further acknowledge our jurisprudence finding that “an unresolved
Daubert issue may render consideration of a summary judgment motion
premature.” Patrick, 22-0766, p. 7, 357 So.3d at 877 n. 5 (citing Dehart v. Jones,
19-789, p. 17 (La. App. 3 Cir. 12/16/20), 310 So.3d 658, 671 and Guardia v.
Lakeview Reg’l Med. Ctr., 08-1369, p. 8 (La. App. 1 Cir. 5/8/09), 13 So.3d 625,
631). In hearing and deciding the Daubert motions essentially contemporaneously
with the motion for summary judgment – only one month before trial and after all
discovery deadlines had elapsed – Nolaluna was left with no recourse to obtain any
other expert or seek a continuance of trial to do so. Compare Hooper v. Travelers
Ins. Co., 10-1685, pp. 8-9 (La. App. 4 Cir. 9/28/11), 74 So.3d 1202, 1207. Under
the procedural circumstances facing this Court, we are disinclined to “permit
technical pleading rules to triumph over actual justice[.]” Patrick, 22-0766, p. 9,
357 So.3d at 877 (quoting Lamb v. Lamb, 430 So.2d 51, 54 (La. 1983)).
The Louisiana legislature was mindful of these concerns in enacting La.
C.C.P. art. 966(D)(3), explicitly requiring that Daubert challenges to summary
13 judgment evidence must be heard and disposed of before the summary judgment
hearing. In the comments to this 2023 amendment, the legislature instructed
courts: “[t]o avoid any possible conflict between the time delays in this Article and
Article 1425(F), the court should set appropriate deadlines for the Article 1425(F)
hearing in a scheduling or pretrial order.” La. C.C.P. art. 966, cmt (g) (2023). We,
therefore, reverse the district court’s grant of summary judgment and remand this
matter for further proceedings consistent with this opinion.
Motions to Exclude the Testimony of Stan Feig and Ralph Litolff
On May 13, 2024, the district court held a hearing on the motions to exclude
the testimony of Feig and Litolff, retained by Nolaluna as experts. The district
court rendered rulings in court, later reflected in written judgments, and provided
oral findings and reasons as contemplated in La. C.C.P. art. 1425(F)(3).
The district court found that Feig possessed the qualifications and
experience to be deemed an expert in the entertainment industry capable of opining
on Nolaluna’s projections of future profitability, with the caveat that he was not
qualified to testify about tax credit financing or the viability of a bar ancillary to
the dinner circus. That said, the district court took issue with the methodology Feig
used. The district court determined that Feig’s opinions were not based on
sufficient facts or were not the product of reliable principles and methods,
reasoning that Feig did not undertake an independent analysis of projected
customer demand for a dinner circus or physically inspect the property to assess
the cost of the construction needed on the leased property. Nolaluna points out that
14 Feig’s expertise is necessarily experience-based. See Kanda Const., LLC v. Gebre,
15-1307, p. 9 (La. App. 4 Cir. 7/20/16), 197 So.3d 791, 796 (“[a] combination of
specialized training, work experience and practical application of the expert’s
knowledge can combine to demonstrate that a person is an expert”). Feig reviewed
publicly available ticket sales data from other markets on the West Coast,
Chicago,5 and Vancouver, along with other New Orleans venues, and used it to
validate Nolaluna’s revenue projections concerning ticket prices and operating
expenses. The district court evidently rejected Nolaluna’s characterization of
Feig’s review as an analysis of strategic advantages of Nolaluna’s intended
business location, New Orleans’ established entertainment infrastructure,
neighborhood demographics, audience characteristics, and cultural alignment with
Nolaluna’s business concept. Instead, the lower court looked to this Court’s
holding in Manuel v. Fat Catz Music Club, Inc., 22-0288 (La. App. 4 Cir. 8/3/22),
366 So.3d 264, to conclude that Feig’s reliance on financial projections that
Nolaluna principal, Stanley Morris, prepared were improper.
As to Litolff, the district court’s oral ruling did not specifically address the
proposed expert’s qualification by knowledge, skill, experience, training or
education, but it was undisputed that Litolff is a certified public accountant. The
district court addressed only Litolff’s methodology, determining again that his
opinions were not based on sufficient data and information. Relying again on
5 The parties argue at length about the relevance and unprofitability of Feig’s cirque venture in
Chicago, particularly in the wake of the COVID-19 pandemic. However, as the district court judge did not address this in her oral findings, such arguments are not properly before us.
15 Manuel, the district court determined that Litolff improperly relied on Morris’s
projections and Feig’s opinions. The district court noted that Litolff’s analysis
encompassed verification of these projections using aggregated data from other
businesses in the entertainment field, compiled by the Risk Management
Association, a national organization that compiles such data for risk professionals
at financial institutions. The district court concluded that Litolff’s analysis method
was insufficient because the aggregated data did not permit Litolff to verify
individual line items in Nolaluna’s pre-litigation financial projections.6
We find the district court’s application of Manuel tremendously broad, as
the facts of Manuel are particularly egregious. Of particular concern in Manuel,
past financial statements of the plaintiff’s business existed, which the purported
expert ignored and failed to address in his opinion testimony; rather, he relied
entirely on plaintiff’s own projections of future earnings (as compiled by an
unidentified accountant) without conducting any independent analysis of the
projections. Importantly, no summary judgment was at issue, only a decision as to
whether an economic expert whose inputs are merely plaintiff’s own estimations of
his own financial projections can testify as to his opinions as an expert. While
Manuel stands for the proposition that a plaintiff cannot simply submit his own
estimates of his damages cloaked as expert opinion, we cannot say based on the
6 But see In re AES Thames, L.L.C., No. 11-10334 (KJC), 2016 WL 11595116, at *8 (Bankr. D.
Del. Oct. 28, 2016)(“[o]ther courts have determined that opinions based on data from the Risk Management Association [were] reliable”)(collecting cases).
16 evidence presented that Manuel is similar to this case, and the district court erred in
relying on it to exclude Feig and Litolff from testifying.
Moreover, numerous courts have frowned upon excluding an expert at the
summary judgment stage, which would “improperly usurp the function of the
factfinder at trial, which is to weigh the evidence and expert opinions in order to
determine whether the plaintiffs have met their burden” of proving the elements of
their claims. Carpenter v. Thomas, 22-0872, p. 13 (La. App. 1 Cir. 3/13/23), 362
So.3d 977, 985 (citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 17
(La. 2/29/00), 755 So.2d 226, 236); Aldridge v. Greenbrier Hosp., L.L.C., 23-0526,
p. 16 (La. App. 1 Cir. 3/13/24), 385 So.3d 712, 725, writ denied, 24-00480 (La.
9/17/24), 392 So.3d 633, and writ denied, 24-00484 (La. 9/17/24), 392 So.3d 634,
and writ denied, 24-00492 (La. 9/17/24), 392 So.3d 635; McKay v. Hosp. Serv.
Dist. No. 1 of Tangipahoa Parish, 23-1244, p. 11 (La. App. 1 Cir. 10/11/24), ---
So.3d ----, ----, 2024 WL 4471779, at *5; Crawford v. Ordoyne, 24-0716, p. 12
(La. App. 1 Cir. 3/20/25), --- So.3d ----, ----, 2025 WL 865680, at *6. Such a result
is particularly concerning where plaintiffs claim that defendants intentionally
caused their business failure before plaintiffs were ever able to generate any
financial records, rendering any proof of lost profits virtually impossible without
expert opinion. Considering the unique misconduct alleged, the courts must not
foreclose such plaintiffs from introducing evidence of projected damages by
excluding their expert testimony wholesale so close to trial. We recognize, as in
other cases, that “[v]igorous cross-examination, presentation of contrary evidence,
17 and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” See Carpenter, 22-0872, p. 12,
362 So.3d at 985 (citing Daubert, 509 U.S. at 596, 113 S.Ct. at 2798 and Blair v.
Coney, 19-00795, p. 9 (La. 4/3/20), 340 So.3d 775, 781).
In conclusion, Feig and Litolff’s methodologies met the Daubert standard:
Feig used public data, market comparisons, and decades of industry experience to
assess Nolaluna’s business viability, while Litolff relied on recognized
benchmarking tools and third-party financial data to support his damages analysis.
Their reliance on projections was appropriate given the absence of historical
financials for a business that never launched. The district court’s exclusion of these
experts based on concerns that go to weight rather than admissibility misapplied
Daubert and improperly relied on the distinguishable Manuel case. We, therefore,
find the district court abused its discretion in excluding these witnesses’ testimony
at this stage.
CONCLUSION
Therefore, for the reasons set forth in this opinion, we reverse the May 17,
2024 and May 21, 2024 judgments of the district court excluding the testimony of
Feig and Litolff, and the May 17, 2024 judgment granting summary judgment. We
remand this case to the district court for further proceedings consistent with this
opinion.
REVERSED AND REMANDED