Expert Testimony Need Not Be Based On "Complicated" Calculations To Remain "Helpful" Under FRE 702

Admitting forensic accountant's estimate of the misdirected contributions to the defendant's web site based on the defendant's launch of a confusingly similar web site; the expert testimony was helpful under FRE 702 even though the expert used "only simple mathematical calculations to arrive at his damages calculations," in WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032 (8th Cir. Jan. 12, 2011) (No. 10-1794)

The impression of the usual expert witness's testimony is that it should involve calculations not accessible to the ordinary juror. In a recent case, the Eighth Circuit explodes this myth. The circuit noted the authority for admitting proffered witness testimony as helpful under FRE 702 and Daubert, even if based on "basic math using simple deductive reasoning," was this was a methodology used by experts in the field of forensic accounting.

Trial Proceedings

In the case, Plaintiff WWP ("Wounded Warrior Project") sought damages from the Wounded Warriors Family Support (WWFS) charity for assisting injured veterans. The plaintiff contended that the defendant "sowed confusion on the Internet by using a website to solicit donations intended for WWP." During the jury trial, the trial judge admitted the plaintiff's forensic accountant expert witness estimated the impact of the misdirected web contributions. The jury entered a verdict for the plaintiff WWP and awarded $1.7 million as the damages suffered in misdireded contributions. WWP, 628 F.3d at 1035. The defendant appealed, contending that the trial judge should not have admitted the expert forensic accounting testimony.

Eighth Circuit Analysis

The Eighth Circuit affirmed the admission of the expert witness testimony. The circuit summarized the forensic accountant testimony:
reviewed approximately 7,500 checks sent to WWFS between November 1, 2004, and July 1, 2008, roughly when WWFS operated the woundedwarriors.org website. In his analysis, [forensic accountant] Kirchner determined WWFS received donations intended for WWP.

To determine the amount of donations misdirected from WWP to WWFS, Kirchner compared the amount of donations WWFS received immediately before and after operating the woundedwarriors.org website with the amount of donations WWFS received while such website was operational. Kirchner found that, in mid- to late-2004, WWFS received an average of $1,337 per month in donations. When the woundedwarriors.org website went 'live,' WWFS's receipts spiked to $87,895 per month. After WWFS shut down the website, donations immediately decreased 56.2%. Using the more conservative (latter) valuation, Kirchner calculated the amount of misdirected donations to be $1,267,729. Using the former valuation, the calculated amount of misdirected donations exceeded $2 million.
WWP, 628 F.3d at 1037 (footnote omitted).


The basis of the defendant's objection to the plaintiff's expert was that he "made only simple mathematical calculations to arrive at his damages calculation," which the defendant contended was "speculative at best, fail[ed] to rule out other alternative explanations [,] and fail[ed] to connect with the facts of the case.” The trial judge differed and admitted the expert testimony finding that the proffered forensic accountant expert relied on his experience as a forensic accountant “analyz[ed] a substantial amount of financial data,” and applied reliable methods in forming opinions that would help the jury understand the evidence." Disputes about what factors should have been used in the expert's calculations "goes to the weight" of the proffered expert testimony rather than its admissibility. WWP, 628 F.3d at 1039 (footnote omitted). As explained by the circuit, the testimony was well-within the bounds of FRE 702:

There is not, as WWFS suggests, an implicit requirement in Fed.R.Evid. 702 for the proffered expert to make complicated mathematical calculations. Forensic accountants routinely rely, surely to no one's surprise, on the books and records and financial information ... provided.”
WWP, 628 F.3d at 1040 (citing In re Prempro Prods. Liab. Litig., 514 F.3d 825, 831 (8th Cir. 2008) (no abuse of discretion in failing to exclude expert testimony that represented “an exercise in basic math using simple deductive reasoning”); quoting Forklifts of St. Louis, Inc. v. Komatsu Forklift, USA, Inc., 178 F.3d 1030, 1035 (8th Cir. 1999).

Conclusion

In reaching this conclusion, the circuit noted a similar argument made in a district court case, which the circuit endorsed. The circuit explained that when a "party argued proffered expert testimony was inadmissible under Fed. R. Evid. 702 because the expert 'merely perform[ed] "simple math calculations ... which the average sixth-grader would be able to perform when equipped with a calculator, pencil and paper," ' one federal judge aptly observed:
[W]hat is a simple mathematical computation to one person may be mind-numbingly complicated to another. [I]f these calculations are as simple as defendants suggest they are ..., then those jurors who are mathematically knowledgeable will immediately so recognize and wonder why the plaintiffs utilized a CPA to prove the obvious.
WWP, 628 F.3d at 1040 n.7 (quoting Arnold v. Ambulance Serv. of Bristol, Inc., No. 2:06-CV-105, 2007 WL 5117409, * 1 (E.D.Tenn. Aug. 21, 2007))


However, in the alternative, even had the proffered expert evidence been excluded under FRE 702, it could still be admitted under FRE 1006 as a summary of voluminous writings. WWP, 628 F.3d at 1040 n.7 (citing SEC v. Amazon Natural Treasures, Inc., 132 F. App'x 701, 703 (9th Cir. 2005) (unpub.mem.op.); cf. United States v. Jennings, 724 F.2d 436, 441-43 & n. 8 (5th Cir. 1984). This alternative basis would have supported the admission of the challenged testimony.

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