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John M. Floyd & Associates

October 2, 2008

JOHN M. FLOYD & ASSOCIATES, INC., A TEXAS CORPORATION, PLAINTIFF(S),
v.
OCEAN CITY HOME BANK, A NEW JERSEY SAVINGS BANK, DEFENDANT(S).



The opinion of the court was delivered by: Rodriguez, Senior District Judge

OPINION

This matter comes before the Court on post-trial motions by both parties. Ocean City Home Savings Bank ("Defendant" or the "Bank") renews its motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. Alternatively, the Bank moves for a new trial or remittitur pursuant to Rule 59. Also before the court is a motion by John M. Floyd & Associates ("Plaintiff" or "JMFA") to alter or amend the judgment entered in its favor in this case. For the reasons expressed below, the Court denies the Bank's motions and grants JMFA's motion.

I. BACKGROUND

The underlying dispute in this case flows from the parties' obligations under the terms of the Engagement (the "Contract"). Under the terms of the Contract, JMFA was to analyze the Bank's current computer systems and make recommendations to create, install, and implement an overdraft privilege program. (See the Contract, Def.'s Exh. C.) Earl Shipp ("Shipp") was assigned by JMFA to be the project manager for the Contract. (See Shipp Dep. at 11.) On November 27, 2001, Shipp presented thirty-two recommendations to several of the Bank's officers, including Paul Esposito ("Esposito"), Regional Sales Director. (See Def.'s Exh. G.) In a December 19, 2001 phone conversation, and followed by a letter dated December 24, 2001, Esposito advised JMFA that the Bank had decided not to implement the proposed overdraft program. (Pl.'s Exh. G.) The Bank then contacted Pinnacle Financial Strategies, L.L.C. ("Pinnacle") on January 2, 2002 to implement a similar overdraft privilege program. (Esposito Dep. at 193.)

The relevant procedural history began when JMFA filed suit against the Bank to collect damages for the Bank's alleged breach of contract and violation of the implied covenant of good faith and fair dealing. This Court granted the Bank's motion for summary judgment with respect to both claims. The Court of Appeals then reversed in part, stating that a genuine issue of material fact remained as to the breach of contract claim. Pursuant to the Third Circuit's directive, trial was held to determine which, if any, recommendations from JMFA were implemented by the Bank.*fn1 The burden was placed on JMFA to show that the implemented recommendations caused an increase in the Bank's revenues for the year following the implementation process.*fn2 The jury found in favor of JMFA as to every element of the cause of action, and awarded damages in the amount of $106,927.78.

Defendant now renews its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). Primarily, Defendant challenges the testimony of Plaintiff's expert witness, James V. Long ("Long"). (See Def.'s Supp.'l Br., pp.10-16.) The Bank argues that Long's testimony should have been barred. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993) (stating that trial courts must exclude experts using invalid reasoning and methodology).

Citing Federal Rules of Evidence 702 and 703, Defendant argues that Long's testimony was inadmissible, as it was based entirely on speculation and unfounded assumptions. (Id. at 17.) Without this testimony, Defendant claims Plaintiff would have been unable to prove damages, and therefore Defendant should be entitled to judgment as a matter of law. (Id. at 20.) Alternatively, Defendant seeks a new trial for three reasons:

(1) the verdict rendered was wholly against the weight of the evidence; (2) the verdict rendered was excessive; and (3) the court failed to adequately instruct the jury. (Id. at 20-23.)

Plaintiff answers that Defendant has waived any possible objections to Long's testimony by failing to object to the Pretrial Order, which outlined Long's proposed testimony. (Id. at 7.) Plaintiff argues that, in any event, Long's testimony was based on reliable accounting procedures, fully satisfying the Daubert standard. (See Pl.'s Initial Br. in Opp'n, pp.10-19.) Not only was there sufficient evidence and facts on the record for the jury to deliberate and properly decide the case, Plaintiff also claims that the jury instructions were proper and adequate. (SeePl.'s Supp.'l Br., pp.1-6.) As for damages, Plaintiff argues that the damages were not speculative or the result of guesswork.

Finally, Plaintiff's cross-motion to alter or amend the judgment, under Federal Rule of Civil Procedure 59(e), seeks costs and pre-judgment interest. Plaintiff cites Federal Rule of Civil Procedure 54(d)(1) in its argument for costs. With regard to prejudgment interest, Plaintiff relies upon principles of equity established under New Jersey precedent. For the reasons expressed below, Defendant's motions are denied, and Plaintiff's cross-motion for costs and pre-judgment interest is granted.

II. DISCUSSION

A. Renewed Motion for Judgment as a Matter of Law

1. Rule 50(b) Standard

Judgment as a matter of law may be granted post-verdict pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. In accordance with Rule 50(a), judgment as a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury" to find in favor of the non-moving party. Fed. R. Civ. P. 50(a). Once the Court denies or reserves judgment on the initial motion under Rule 50(a), the party may renew its motion after the jury has returned a verdict. Fed. R. Civ. P. 50(b). The key "question is not whether there is literally no evidence supporting the unsuccessful party, but whether there is evidence upon which a reasonable jury could properly have found its verdict." Johnson v. Campbell, 332 F.3d 199, 204 (3d Cir. 2003) (quoting Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)). Thus, the Court must determine whether, in light of the evidence viewed most favorably to the prevailing party, a reasonable jury could have properly returned the verdict. It is worth noting that Rule 50 motions are granted "sparingly". Johnson, 332 F.3d at 204. Such motions are granted only where "the record is critically deficient of the minimum quantum of evidence" to substantiate the verdict. Gomez, 71 F.3d at 1083.

2. Admissibility of Expert Testimony

The District Court serves as a "gate keeper" to ensure the relevance and reliability of expert testimony. SeeIn re Unisys Savings Plan Litigation, 173 F.3d 145, 155 (3d Cir. 1999) (citing General Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)). In this capacity, the Court must first assess whether the reasoning or methodology employed by the expert is valid, and then determine whether the reasoning can properly be applied to the facts at issue. SeeDaubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993). Under the Federal Rules of Evidence, experts shall be permitted to testify only if:

(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. In short, the Court must focus only on "principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 580. Under Fed. R. Evid. 103, a party may waive the issue of admissibility of testimony by failing to timely object to its admission. SeeBenjamin v. Peter's Farm Condominium, 820 F.2d 640, 642-43, n.5 (3d Cir. 1987) (emphasis added). An objection is timely if it is made as soon as its pertinency is apparent to the opponent. 1 WIGMORE, EVIDENCE § 796 (Tillers rev. 1983).

3. Analysis

Defendant argues that Long's testimony should be stricken from the record because it failed to satisfy the Court's standards for admissibility. (Def. Supp.'l Br., p.18.) Defendant further contends that, without Long's testimony, Plaintiff failed to prove damages. (Id.) As a result, Defendant argues that it is entitled to judgment as a matter of law. Plaintiff responds, inter alia, that not only has Defendant waived any possible objection to Long's testimony, but that Long's testimony was in fact properly admitted, supported, and relevant to the trial. The Court agrees, and for the reasons expressed below, denies Defendant's motion.

It is well-settled that objections to expert testimony must be made in a timely manner, Benjamin v. Peter's Farm Condominium, 820 F.2d 640, 642-43, n.5 (3d Cir. 1987), or the objecting party is deemed to have waived its right to do so. See FelicianoHill v. Principi, 439 F.3d 18, 24 (1st Cir. 2006) (reasoning that parties must make a timely objection in order to carefully evaluate the expert's proposed testimony); cf. Karam v. Sagemark Consulting, Inc., 383 F.3d 421, 427 (6th Cir. 2004) (acknowledging that "in the absence of a timely objection, such testimony is generally not considered to be erroneously admitted."); see also Club Car, Inc. v. Club Car (Quebec) Import, ...


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