Opinion
15054-21 4970-22
06-08-2023
ANA M. FRANKLIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Elizabeth Crewson Paris, Judge.
Before the Court is respondent's Motion in Limine to Exclude the Report and Proposed Testimony of David E. Scott, filed May 31, 2023, at Docket No. 15054-21, docket entry 68, and Docket No. 4970-22, docket entry 65. Petitioner previously filed a Motion for Leave to File Expert Report and lodged the Report of David E. Scott at Docket No. 15054-21, docket entries 32 and 33 respectively, on December 27, 2022, and at Docket No. 4970-22, docket entries 29 and 30 respectively, on January 9, 2023. On January 27, 2023, respondent filed a Motion in Limine to Exclude the Report and Proposed Testimony of David E. Scott at Docket No. 15054-21, docket entry 45, and Docket No. 4970-22, docket entry 43. The Court granted respondent's motion on February 10, 2023, at Docket No. 15054-21, docket entry 55, and Docket No. 4970-22, docket entry 53. On May 19, 2023, petitioner lodged an Expert Witness Report of David E. Scott identical to the previously excluded Report. Respondent has moved to exclude it.
In petitioner's Expert Witness Disclosures, Docket No. 15054-21, docket entry 63, and Docket No. 4970-22, docket entry 61, she additionally lists Heath Taylor as an expert witness. Mr. Taylor was not included in the December 27, 2022, report. Respondent has filed a separate motion in limine as to that proposed expert, and the Court will resolve that motion separately.
Proceedings in the Tax Court are conducted in accordance with the Federal Rules of Evidence (FRE). See I.R.C. § 7453; Tax Court Rule 143. Testimony by expert witnesses is governed by FRE 702 and 703. FRE 702 and the framework established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. FRE 702 allows the admission of expert testimony if "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." FRE 702 imposes a special "gatekeeping" obligation upon the trial judge to ensure that the expert testimony is both reliable and relevant. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999); Daubert, 509 U.S. at 589. The Daubert analysis and FRE 702 are not limited to jury trials but apply to bench trials, as well. See, e.g., Boltar, L.L.C. v. Commissioner, 136 T.C. 326, 334 (2011).
In the Tax Court, the report of an expert serves as the witness's direct testimony, so it must satisfy the standards of admissibility in the Federal Rules of Evidence. See Tax Court Rule 143(g). Upon review of the lodged report and the parties' motions and responses, the report suffers from the same defects as the previously filed report. There are multiple reasons why the report, as lodged, fails to meet the standards of Rule 143(g) and the Federal Rules of Evidence and will not be allowed as direct testimony. The proposed testimony of Mr. Scott will be allowed as a fact witness during the trial and must satisfy the standards of admissibility in the Federal Rules of Evidence.
For these reasons and the reasons listed in the Court's Order dated February 10, 2023, it is
ORDERED that respondent's Motion in Limine to Exclude from Evidence the Report and Proposed Expert Testimony of David E. Scott, filed May 31, 2023, is granted.