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Robert A. Politte, et al v. United States of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 1, 2011

ROBERT A. POLITTE, ET AL.,
PLAINTIFFS,
v.
UNITED STATES OF AMERICA,
DEFENDANT.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER FOLLOWING HEARING ON MOTION IN LIMINE TO EXCLUDE EXPERT WITNESSES KEVIN CALL AND CARLETON KNECHTEL

[Doc. No. 258]

A hearing for the parties motions in limine was held before Judge Battaglia on April 22, 2011, [Doc. No. 298]. The Court denied-in-part and submitted-in-part Defendant's Motion in Limine No. 7, Doc. No. 258, which sought to exclude from trial the testimony of Plaintiffs' expert witnesses Kevin Call and Carleton Knechtel. The Court denied the motion as to Mr. Call*fn1 and submitted the motion as to Mr. Knechtel and requested that counsel lodge further documents*fn2 with the Court for review. Upon review of the documents lodged and the arguments of counsel, the Court finds that Mr. Knechtel should be excluded under Rule 702 of the Federal Rules of Evidence. Based upon the foregoing and for the reasons set forth below, the Court hereby GRANTS Defendant's Motion in Limine No. 7, Doc. No. 258, as to Plaintiffs' expert witnesses Carleton Knechtel.

Discussion

The portion of Defendant's motion, Doc. No. 258, that the Court took under submission, challenges Plaintiffs' expert witnesses Carleton Knechtel and requests that his opinions and testimony be excluded from trial because: 1) he conceded that he is not qualified to render an opinion in this case;

2) his opinions are irrelevant and based on information that this Court has determined is protected by the attorney-client privilege; and 3) his opinions are based on a legal standard already rejected by this Court.

Federal Rule of Evidence 702 allows admission of "scientific, technical, or other specialized knowledge" by a qualified expert if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." Elsayed Mukhtar v. Calif. State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002). However, in the instant case, not only has Mr. Knechtel failed to explain how he is qualified, he has admitted that he is not.*fn3 The Court's review of the record indicates that Mr. Knechtel has not reviewed a nominee/alter-ego lien during his tenure as an IRS attorney and admits that he does "not have an alter ego expertise or nominee expertise." See Newman Decl., Ex. 7 at 131:7-23. Given the foregoing, the Court finds Mr. Knechtel is not a qualified expert on the topic of nominee/alter-ego liens.

The Defendant's motion also challenges Mr. Knechtel's opinions on the grounds that they are irrelevant and based on information that this Court has determined is protected by the attorney-client privilege. The question of whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the fact finder in resolving a factual dispute is the inquiry envisioned by Rule 702 and it is a flexible one. Daubert, 509 U.S. at 594; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). However, expert testimony that does not relate to any issue in the case is not relevant and therefore not helpful. Daubert v. Merrill Dow Pharm., 509 U.S. 579, 591 (1993). Upon review of Mr. Knechtel's expert report, the Court finds the opinions contained therein to be irrelevant to the causes of action pled because they concern action or inaction by IRS Counsel when Plaintiffs' claims involve only action or inaction on the part of Revenue Officer Kelly. See Doc. No. 207; see also Joint Proposed Pretrial Conf. Order, p. 34, ¶ 21.) The Court also notes that Mr. Knechtel's opinions regarding the action or inaction by IRS Counsel incorporate and rely upon information this Court found to be protected by the attorney-client privilege.*fn4

Lastly, the Defendant argues that Mr. Knechtel applied the wrong standard in rendering his opinion. In Mr. Knechtel's expert report and deposition testimony, he states that the wrongful levy standard, i.e., probable cause, applies to this case. (Newman Decl. ¶7, Ex. E at 8:17--22; 48:10--13.) However, this Court has specifically held to the contrary finding: (1) "Flores does not apply to the instant case; " and (2) "the IRS's discharge of the Tax Liens in exchange for the proceeds of the properties' sale does not constitute a de facto levy." See Doc. No.123, Order p. 6, 8; see also Doc. No.158, Order p. 3--5; Doc. No. 207, Order p. 17.) While the Court finds the contrary assumptions employed by Mr. Knechtel in rendering his opinion problematic, the Court need not reach the merits of whether Mr. Knechtel's expert opinion applied the wrong standard because the Court has already found him unqualified and the opinion as rendered irrelevant.

Conclusion

For the reasons set forth above, the Court hereby GRANTS Defendant's Motion in Limine No. 7, Doc. No. 258, to exclude from trial the testimony of Plaintiffs' expert witnesses Carleton Knechtel.

IT IS SO ORDERED.


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