Order on Plaintiffs' Motion In Limine to Exclude the Expert Testimony of Michael Skaliy (ING USA ANNUITY AND LIFE INSURANCE COMPANY)

Transcription

1 Gergia State University Cllege f Law Reading Rm Gergia Business Curt Opinins Order n Plaintiffs' Mtin In Limine t Exclude the Expert Testimny f Michael Skaliy (ING USA ANNUITY AND LIFE INSURANCE COMPANY) Alice D. Bnner Superir Curt f Fultn Cunty Fllw this and additinal wrks at: Institutinal Repsitry Citatin Bnner, Alice D., "Order n Plaintiffs' Mtin In Limine t Exclude the Expert Testimny f Michael Skaliy (ING USA ANNUITY AND LIFE INSURANCE COMPANY)" (2010). Gergia Business Curt Opinins This Curt Order is brught t yu fr free and pen access by Reading Rm. It has been accepted fr inclusin in Gergia Business Curt Opinins by an authrized administratr f Reading Rm. Fr mre infrmatin, please cntact mbutler@gsu.edu.

2 .. IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA ING USA ANNUITY AND LIFE INSURANCE COMPANY and ING INVESTMENT MANAGEMENT, LLC, Plaintiffs, J.P. MORGAN SECURITIES INC. and DAMIAN BERRY, v. Defendants. Civil Actin N. 2007CV ORDER ON PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE THE EXPERT TESTIMONY OF MICHAEL SKALlY On June 24,2010, cunsel appeared befre the Curt t present ral argument n Plaintiffs' mtin t exclude the expert testimny f Defendants' expert Dr. Michael Skaliy. After reviewing the briefs submitted n the mtins,. the recrd in the case, and the arguments presented by cunsel, the Curt finds as fllws: Defendant J.P. Mrgan Securities Inc. ("JPMSI") prvided investment banking services t an Australian mining cmpany named Sns f Gwalia Limited ("Gwalia"). Defendant Damian Berry ("Berry") was an emplyee f JPMSI between 1998 and 2002 and was JPMSI's relatinship manager fr Gwalia during that time. Starting in 2000, Gwalia decided t raise capital thrugh the private placement f debt securities. This private placement strategy ("J ccurred ver the curse f tw fferings-the first in the fall f 2000 ("2000 1

3 Private Placement") and the secnd in early 2002 ("2002 Private Placement"). Plaintiffs lng-usa Annuity and Life Insurance ("lng-usa") and ING Investment Management LLC ("lng-1m") participated in the 2002 Private Placement. ING USA, a life insurance cmpany, ultimately purchased $32 millin f the ntes ffered by Gwalia in the 2002 Private Placement. JPMSI acted as Gwalia's brker fr bth the 2000 Private Placement and the 2002 Private Placement and, amng ther things, assisted Gwalia in preparing a private placement memrandum fr each ffering. In 2004, Gwalia entered int vluntary administratin which is the Australian equivalent f bankruptcy. Plaintiffs allege that during the 2002 Private Placement, Defendants misrepresented and cncealed Gwalia's true financial picture. In particular, Plaintiffs allege that Defendants misrepresented and cncealed: (1) Gwalia's investments in derivatives called Indexed Gld Put Optins ("IGPOs"), (2) Gwalia's liquidity crisis fllwing an unauthrized trading spree by Gwalia's directr f finance, and (3) prblems with Gwalia's acquisitin f anther gld mining cmpany, Pacific Mining Crpratin Limited ("Pac Min"). Based n these allegatins, Plaintiffs assert claims fr vilatins f the Gergia Securities Act f 1973 ("GSA"), cmmn law fraud, negligent misrepresentatin, and vilatins f the Gergia RICO Act. Plaintiffs have mved t exclude the testimny f Defendants' expert Dr. Michael Skaliy. In 2005, the Gergia General Assembly adpted O.C.G.A , which requires a trial curt t apply the federal Daubert rule in assessing the admissibility f expert testimny. Daubert v. Merrell Dw Pharmaceuticals, 2

4 Inc., 509 U.S. 579 (1993). Therefre, federal authrity, as well as Gergia law, is relevant t the questin f admissibility. Masn v. Hme Dept U.S.A., 283 Ga. 271, 279 (2008) (hlding that it is "prper t cnsider and give weight t cnstructins placed n the federal rules by federal curts when applying r cnstruing" O.C.G.A because the Gergia statute was based upn Federal Rule f Evidence 702 and Daubert). Pursuant t bth O.C.G.A and Daubert, nce a curt determines that "scientific, technical, r ther specialized knwledge will assist the trier f fact," an expert may give pinin testimny s lng as such testimny is reliable and relevant. O.C.G.A ; Daubert, 509 U.S. at (1993). O.C.G.A defines reliable and relevant testimny as testimny that is based upn sufficient facts r data, is the prduct f reliable methds, and is the prduct f a reliable applicatin f the methds t the facts f the case. The Daubert standard is liberal and favrs admissibility. See,~, KSP Investments, Inc. v. U.S., 2008 WL (N.D. OH 2008) ("As cmmentatrs have nted, Rule 702 evinces a liberal apprach regarding admissibility f expert testimny. Under this liberal apprach, expert testimny is presumptively admissible."); In re Scrap Metal Antitrust Litigatin, 527 F.3d 517, 530 (2008) ("[R]ejectin f expert testimny is the exceptin, rather than the rule."). In a Daubert inquiry, the trial curt acts as a "gatekeeper" in determining whether the expert is qualified t testify. See,~, CSX Transp., Inc. v. McDwell, 294 Ga. App. 871, 872 (2008). 3

5 Q Dr. Skaliy is a duble-bard-certified anesthesilgist and pain management physician whm Defendants plan t call t give testimny regarding the cgnitive abilities and memry f Mr. Eardley Rss-Adjie, a fact witness wh has a lng histry f taking prescriptin drugs. Dr. Skaliy has pined that Mr. Rss-Adjie was nt cmpetent t testify when he gave his depsitin in this case. Plaintiffs seek t exclude Dr. Skality's testimny in its entirety arguing that it is (1) irrelevant, (2) unreliable, and (3) that Dr. Skaliy is nt qualified t prvide expert testimny n cmpetency. The Curt finds that, given his backgrund, Dr. Skaliy is qualified t give testimny n the effects varius drugs have n peple in general. Hwever, whether Mr. Rss-Adjie is cmpetent t testify is a questin fr the Curt t be determined after examinatin by the Curt. O.C.G.A (a). While Dr. Skaliy's testimny may be helpful t the Curt in making this determinatin, and the Curt will cnsider it, his testimny as t Mr. Rss-Adjie's cmpetence may nt be presented t the jury. The Curt will make a determinatin as t Mr. Rss-Adjie's cmpetence shrtly befre the trial f this case. Shuld the Curt decide that the jury may hear Mr. Rss-Adjie's testimny, Dr. Skaliy may testify as t the effects varius drugs have, in general, n the peple wh take them. Fr the freging reasns, Plaintiffs' Mtin In Limine t Exclude the Expert Testimny f Michael Skaliy is GRANTED IN PART AND DENIED IN PART. 4

6 () SO ORDERED this 11th day f August,

7 Cpies electrnically t: Jseph Manning, Esq. Simn Maik, Esq. Dnald Lft, Esq. Jasn Eakes, Esq. MORRIS, MANNING & MARTIN LLP 1600 Atlanta Financial Center 3343 Peachtree Rad, NE Atlanta GA Cunsel fr Plaintiffs Nrman K. Beck, Esq Rbert Y. Sperling, Esq. Kyle P. DeJng, Esq. James F. Herbisn, Esq. WINSTON & STRAWN, LLP 35 West Wacker Drive Chicag, IL Cunsel fr Defendants Charles K. McKnight, Jr., Esq. Natins Tman & McKnight LLP Prmenade II, Suite Peachtree Street NE Atlanta, Gergia Cunsel fr Defendants Jseph E. Finley, Esq. Lillian N. Caudle, Esq. Jnes Day 1420 Peachtree Street, NEW Suite 800 Atlanta, GA Cunsel fr Defendant Damian Berry 6