Return on Intelligence, Ltd. v. Shenkman
- Jeffrey White
- 4:18-cv-00262
- U.S. District Court · Northern District of California
- 3
In Return on Intelligence v. Shenkman, Judge White denied exclusion of two damages witnesses but limited them to properly supported lay opinions.
The ruling affected the plaintiffs, Alexander Novak and Sergiy Sinyansky as proposed witnesses, and the defendant. The witnesses could testify about damages as lay witnesses subject to the stated limits, but they could not provide undisclosed expert testimony.
What happened
In Return on Intelligence, Ltd. v. Shenkman, the plaintiffs planned to call Alexander Novak and Sergiy Sinyansky to testify about their alleged damages at a bench trial. Neither side had identified expert witnesses during discovery, and the defendant argued that the plaintiffs had not properly disclosed these witnesses for expert testimony.
The court found that the proposed testimony, based on the plaintiffs’ offer of proof, appeared to be lay opinion testimony rather than expert testimony. Lay opinions may be based on a witness’s perception and personal knowledge, but may not rely on specialized knowledge, inadmissible hearsay, or speculation.
Judge Jeffrey S. White denied the defendant’s motion to exclude the witnesses for lack of pretrial disclosure. The court allowed the witnesses to offer lay opinions about damages only if the plaintiffs establish their personal knowledge of the relevant facts and the testimony is not based on hearsay or speculation.
The detailed version
- Return on Intelligence, Ltd. v. Shenkman · No. 4:18-cv-00262
- Jeffrey White
- Dec. 1, 2023
Background
The case was scheduled for a bench trial on December 4, 2023. During discovery, neither the plaintiffs nor the defendant identified any expert witnesses. In their pretrial filings, the plaintiffs listed Alexander Novak and Sergiy Sinyansky as witnesses and indicated that they intended to question them about the plaintiffs’ alleged damages.
The defendant objected that the proposed testimony was undisclosed expert-type testimony. The court ordered the plaintiffs to provide an offer of proof describing the testimony, and the defendant argued that the plaintiffs should be barred from presenting it because they had not made the disclosures required for expert testimony under Federal Rule of Civil Procedure 26.
Rule 26 and the proposed testimony
Rule 26(a)(2)(A) requires a party to disclose the identity of a witness the party may use to present evidence under Federal Rules of Evidence 702, 703, or 705. For an expert witness who is not required to prepare a written report, Rule 26(a)(2)(C) requires disclosure of the subject matter and a summary of the facts and opinions to which the witness is expected to testify.
The court was not persuaded that Novak and Sinyansky would offer testimony covered by Rule 702. Rule 702 governs expert testimony based on specialized knowledge. By contrast, Rule 701 allows lay opinion testimony when it is rationally based on the witness’s perception, helpful to understanding the testimony or deciding a fact in issue, and not based on scientific, technical, or other specialized knowledge.
The court explained that testimony about damages is not automatically expert testimony. It cited authority allowing company employees to testify about damages or company valuation when their opinions are based on personal and particularized knowledge gained through their positions in the business.
Ruling
The court denied the defendant’s motion to exclude Novak and Sinyansky based on the lack of pretrial disclosure. Because neither party had disclosed expert witnesses before trial, however, the court warned that it would grant a motion to strike any testimony that moved beyond lay opinion and relied on scientific, technical, or other specialized knowledge.
The court permitted Novak and Sinyansky to provide lay opinion testimony about the damages the plaintiffs allegedly suffered as a result of the defendant’s conduct only if the plaintiffs elicited testimony showing that the witnesses had personal knowledge of the relevant facts, did not rely on inadmissible hearsay, and did not base their testimony on speculation. The order also directed the parties to be present before trial to address any remaining matters and to notify the court immediately if they settled.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.