# KLINGES v. POMERLEAU

> District Court, D. Maine · May 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10211405

## Case

- **Court:** District Court, D. Maine
- **Decided:** May 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10211405

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

TERESA KLINGES, )
)
Plaintiff, )
)
v. ) Docket No. 2:19-cv-00418-NT
)
KEVIN POMERLEAU, et al., )
)
Defendants. )

ORDER ON PLAINTIFF’S MOTIONS TO EXCLUDE EXPERT WITNESS
TESTIMONY AND TO STRIKE SUPPLEMENTAL EXPERT WITNESS
DESIGNATION
On May 5, 2022, I heard oral arguments on the Plaintiff’s motions to exclude
certain testimony of David E. Currier, the expert witness of Defendant Bergen &
Parkinson (“B&P), (ECF No. 123) and to strike B&P’s supplemental expert witness
designation (ECF No. 139). At the conclusion of those arguments, by oral order, I
DENIED the motion to exclude and GRANTED the motion to strike (ECF No. 154).
I write to provide an explanation for my oral ruling.
FACTUAL BACKGROUND
I. The Case
This suit was brought by Teresa Klinges against her brother, Kevin
Pomerleau, and B&P, a transactional law firm. Klinges and her brother jointly owned
three companies, collectively known as the Global Companies. Second Am. Compl.
(“Compl.”) ¶¶ 1–2 (ECF No. 72). Klinges served as the Global Companies’ chief
financial officer. Compl. ¶ 21. In 2012, Klinges was fired from her managerial role in
the business, though she remained a minority shareholder. Compl. ¶ 22. After that,
and without consulting Klinges, Pomerleau created a separate company, EVM MS,
to acquire a sawmill to produce timber mats. Compl. ¶¶ 25–27. In a transaction (the

“Mill Transaction”) facilitated by B&P, Pomerleau obtained millions of dollars in
loans from KeyBank National Association, Global Companies’ primary lender, to
finance EVM MS’ operations, cross-collateralized using Global Companies’ assets as
security. Compl. ¶¶ 16, 27, 31, 33–34. Klinges claims that, after running up over $14
million in debt, EVM MS failed, which caused Global Companies to collapse soon
after. Compl. ¶¶ 52–58.
Following the demise of Global Companies, Klinges sued Pomerleau for breach

of his fiduciary duties (Counts I and II), and B&P for attorney malpractice and for
aiding and abetting Pomerleau’s breach (Counts IV, V, and VI). Compl. 13–21.
II. First Expert Witness Designation & Daubert Motion
On October 1, 2021, B&P served its Expert Witness Designation. B&P Expert
Witness Designation 2 (“First Expert Designation”) 9 (ECF No. 123-1). B&P’s sole
designee was David Currier, an attorney. First Expert Designation 1. Though the
designation indicated that Currier was retained to testify on a number of issues, what

is relevant here is his opinion on one particular item: that the Mill Transaction is not
actionable as a conflicting-interest transaction under Maine law, and falls under the
“safe harbor” provision of the Maine Business Corporation Act, because the Mill
Transaction, “judged according to the circumstances at the relevant time, was fair.”
First Expert Designation 2. Specifically, the designation indicated that Currier would
testify that the Mill Transaction “was fair in terms of Kevin Pomerleau and Greg
Pomerleau’s dealing with the Global Companies and comparable to what might have
been obtained in an arms-length transaction, in that, among other things, the April
15 transaction had the potential to benefit the Global Companies, in that EVM MS

cross-guaranteed and cross-collateralized the supermajority of the then-current
obligations of the Global Companies and provided strategic and supply chain
advantages to the Global companies [sic] that they would not have otherwise had.”
First Expert Designation 5.
Klinges filed a motion to exclude Currier’s testimony pursuant to Federal Rule
of Evidence (“Fed. R. Evid.”) 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993). Mot. to Exclude Certain Test. of David E. Currier, Esq. (“Mot. to

Exclude”) (ECF No. 123).
III. Supplemental Expert Witness Designation & Motion to Strike
On February 28, 2022, almost three weeks after Klinges filed her motion to
exclude Currier’s testimony but before B&P had filed its response to that motion,
B&P served a supplemental expert witness designation related to the scope of
Currier’s expected testimony. Def. B&P’s Suppl. Expert Witness Designation
(“Supplemental Designation”) (ECF No. 139-1). The supplemental designation

stated that all materials obtained during discovery “confirm[ed] . . . Mr. Currier’s
opinions as previously articulated in B&P’s initial disclosure.” Supplemental
Designation 1. In addition, the supplemental designation provided Currier’s opinion
that the Mill Transaction was fair because the Global Companies “had a documented
history of providing equity compensation to their executive employees” and that,
“[g]iven the financial success of the Global Companies in 2014, it would have been
reasonable for Kevin Pomerleau to request (and for the Global companies to give) a
significant equity-based compensation package.” Supplemental Designation 2.
Klinges moved to strike the supplemental witness designation pursuant to

Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26(e) and Fed. R. Civ. P. 37(c).
Mot. to Strike Def. B&P’s Suppl. Expert Witness Designation (“Mot. to Strike”)
(ECF No. 139).
MOTION TO EXCLUDE

I. Legal Standard
District courts act “as gatekeepers of expert testimony.” Bricklayers & Trowel
Trades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC, 752 F.3d 82, 91 (1st Cir.
2014); accord Daubert, 509 U.S. at 597. Fed. R. Evid. 702 outlines the requirements
for admissibility of expert witness testimony:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:

(a) 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;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. Importantly, however, “Rule 702 has been interpreted liberally in
favor of the admission of expert testimony.” Levin v. Dalva Bros., Inc., 459 F.3d 68,
78 (1st Cir. 2006). The ultimate purpose of my inquiry “is to determine whether the
testimony of the expert would be helpful to the jury in resolving a fact in issue.”
Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st Cir. 2000).
II. Discussion
Klinges argues that Currier’s testimony is subject to exclusion for three

reasons: (1) Currier “intends to improperly opine about ultimate legal issues,” (2)
“[h]e is patently unqualified to give testimony as to the ‘fairness’ of the Mill
Transaction,” and (3) “even if he was qualified, his opinion is not based on sufficient
data, is not the product of reliable principles and methods, and it does not reflect his
application of any recognizable methodology to the facts of the case.” Mot. to Exclude
5–6. Below I analyze each of these arguments.

A. Currier’s Qualifications
I first address Klinges’ argument that Currier is unqualified to give testimony
as to the fairness of the Mill Transaction. “Among other requirements, Fed. R. Evid.
702 mandates that a putative expert be qualified to testify by knowledge, skill,
experience, training or education. . . . That a witness qualifies as an expert with
respect to certain matters or areas of knowledge, does not mean that he or she is
qualified to express expert opinions as to other fields.” Levin, 459 F.3d at 78 (internal

quotation marks and citations omitted). “But experts come in various shapes and
sizes; there is no mechanical checklist for measuring whether an expert is qualified
to offer opinion evidence in a particular field.” Santos v. Posadas de P.R. Assocs., Inc.,
452 F.3d 59, 63 (1st Cir. 2006). “[E]xpertise is not necessarily synonymous with a
string of academic degrees or multiple memberships in learned societies”; rather, in
exercising my gatekeeping function, I must take into account “the value of ‘extensive
practical experience.’ ” Id. at 63–64 (quoting United States v. Hoffman, 832 F.3d 1299,
1310 (1st Cir. 1987)).
In this case, Currier, the expert in question, holds a degree in Mathematics

from Brown University and a J.D. from Harvard Law School. First Expert
Designation 11. He has worked as an attorney since his graduation from Harvard and
currently practices with his own firm, “a corporate and commercial practice.” Mot. to
Exclude 15 (quoting Dep. of David E. Currier, Esq. 31 (ECF No. 123–2)). Despite this
general experience, the Plaintiff asserts that Currier lacks the specific expertise in
“finance, economics, and business acumen” necessary to opine on the fairness of the
Mill Transaction. Mot. to Exclude 16. I disagree. Though he may not be a specialist

in this specific area of law and/or corporate finance, I find that Currier has sufficient
general expertise in both areas to offer his opinion. Cf. Gaydar v. Sociedad Instituto
Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 24 (1st Cir. 2003) (“The
proffered expert physician need not be a specialist in a particular medical discipline
to render expert testimony relating to that discipline.”). Of course, the Plaintiff is
“free to explore on cross-examination the limits of [Currier’s] expertise and to offer

countervailing expert opinions, if available, from witnesses with equal or more
extensive training.” Hinton v. Outboard Marine Corp., 828 F. Supp. 2d 366, 372 (D.
Me. 2011).
B. Sufficiency of Facts and Data & Reliability of Methodology
I find Klinges’ argument that Currier’s testimony is subject to exclusion
because it is not based on sufficient facts or data, and/or because it was not produced
using a reliable methodology, equally unavailing.
First, in regard to facts and data, the Plaintiff asserts that, “[w]hile Currier
considered pleadings, other expert designations, the [Maine Business Corporation]
Act and related authorities and various deposition transcripts . . . , he did not consider

a host of highly relevant information.” Mot. to Exclude 18. It may be that there were
other pertinent materials that Currier could have reviewed, but “[w]hen the
‘adequacy of the foundation for the expert testimony is at issue, the law favors
vigorous cross-examination over exclusion.’ ” Zuckerman v. Coastal Camps, Inc., 716
F. Supp. 2d 23, 28 (D. Me. 2010) (quoting Carmichael v. Verso Paper, LLC, 679 F.
Supp. 2d 109, 119 (D. Me. 2010)); accord Brown v. Wal–Mart Stores, Inc., 402 F. Supp.
2d 303, 308–09 (D. Me. 2005) (“As a general rule, the factual basis of an expert opinion

goes to the credibility of the testimony, not the admissibility, and it is up to the
opposing party to examine the factual basis for the opinion in cross-examination. . . .
It is only if an expert’s opinion is so fundamentally unsupported that it can offer no
assistance to the jury [that] such testimony [must] be excluded on foundational
grounds.” (internal citations and quotation marks omitted)). “If the factual
underpinnings of [the experts’] opinions [are] in fact weak, that [is] a matter affecting

the weight and credibility of their testimony,” not admissibility. Payton v. Abbott
Labs, 780 F.2d 147, 156 (1st Cir. 1985).
Similarly, I find the Plaintiff’s critique of Currier’s methodology unconvincing
as a ground for exclusion. As this Court has previously stated, “[e]xpert testimony
need not be based on hard science. Rule 702 also permits testimony by ‘skilled’
witnesses based on experience because ‘in certain fields, experience is the
predominant, if not sole, basis for a great deal of reliable expert testimony.’ ” United
States v. Raymond, 700 F. Supp. 2d 142, 145–46 (D. Me. 2010) (quoting Fed. R. Evid.
702 advisory committee’s note). Here, to the extent that Currier relies on his

experience as a basis for his testimony, I decline to say that such reliance renders
Currier’s opinion inadmissible. Currier’s testimony might have benefitted from
further background research, and the Plaintiff will be free to expose this and any
other weaknesses in Currier’s testimony during cross-examination. But these alleged
weaknesses are not grounds for exclusion.
C. Legal Conclusions
Finally, I turn to Klinges’ argument that Currier’s opinion that “the [Mill]

Transaction did not . . . appear to constitute a conflicting interest transaction under
the [Maine Business Corporation] Act because the [Mill] Transaction falls within a
safe harbor defined by the Act” constitutes an improper legal conclusion. Mot. to
Exclude 13–14 (footnote omitted) (quoting First Expert Designation 5). “In our legal
system, purely legal questions and instructions to the jury on the law to be applied to
the resolution of the dispute before them is exclusively the domain of the judge.
Accordingly, expert testimony on such purely legal issues is rarely admissible.”

Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997); see also id. at 100
(“Because the jury does not decide . . . pure questions of law, such testimony is not
helpful to the jury and so does not fall within the literal terms of Fed. R. Evid. 702,
which allows expert testimony ‘[i]f scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue
. . . .”). However, there are “particular areas of law, such as legal malpractice, where
expert testimony on legal matters is admissible where it would normally be excluded.”
Id. at 100–101.
The Plaintiff concedes that Currier’s opinion regarding the applicability of the

safe harbor may be admissible insofar as it pertains to Counts IV and V of Klinges’
Complaint, which both allege attorney malpractice against B&P. Reply in Supp. of
Mot. to Exclude 1 & n.2 (ECF No. 140). Thus, I find that Currier’s opinion, as it relates
to the legal malpractice claims, is admissible under Fed. R. Evid. 702.
The closer question is whether Currier may offer his opinion as to Count VI,
which alleges that B&P aided and abetted Kevin Pomerleau’s breach of fiduciary
duty. See Compl. ¶ 100. The Plaintiff asserts that, in the context of her aiding and

abetting claim, “[t]estimony by Mr. Currier opining that Kevin did not breach his
fiduciary duties to Teresa . . . because the Mill Transaction was ‘fair to the
corporation’ under the Section 872(2)(C) safe harbor would be entirely inadmissible.”
Reply in Supp. of Mot. to Exclude 2. While I understand that Count VI of Klinges’
Complaint does not state a legal malpractice claim, I am not convinced that Currier’s
opinion is, by default, entirely inadmissible with regard to that Count. As the First

Circuit has explained, expert opinions on “complicated subject[s]” may be admissible
where they can “shed some light in a shadowy domain.” Peckham v. Cont’l Cas. Ins.
Co., 895 F.2d 830, 837 (1st Cir. 1990); see also United States v. Offill, 666 F.3d 168,
175 (4th Cir. 2011) (“[C]ourts and commentators have consistently concluded that
expert testimony that ordinarily might be excluded on the ground that it gives legal
conclusions may nonetheless be admitted in cases that involve highly technical legal
issues.”).
Here, Count VI of Klinges’ complaint entails not just a basic aiding and

abetting issue, but also the more technical legal issue of whether B&P “knew, or
should have known, that the Mill Transaction was an interested party transaction
requiring approval of the sole disinterested shareholder.” Compl. ¶ 98. This is
arguably the very type of “highly technical legal issue” on which expert testimony is
admissible.
It is also notable that one of the Plaintiff’s expert witnesses, Fred W. Bopp, is
slated to opine on the exact same issue that the Plaintiff calls an impermissible legal

issue in the instant motion—that is, that “B&P knew or should have known that none
of the ‘safe harbors’ regarding director’s conflicting-interest transactions . . . were
applicable in[ ] connection with the Mill Transaction, in that . . . the Mill Transaction
was not fair.” Pl.’s Suppl. Expert Witness Designation 11 (ECF No. 134-1). From what
I can gather, the only difference between Bopp’s opinion and Currier’s is that Bopp
believes the Mill Transaction does not fall into a safe harbor, while Currier believes

it does. And, at oral argument, when pushed on whether there is a substantive
difference between the Bopp and Currier opinions beyond their divergent conclusions,
counsel for the Plaintiff argued only that Bopp possessed the requisite qualifications
to make such opinions, which is an entirely different basis for exclusion.
Ultimately, I decline to say at this stage that Currier may not opine at all on
any issues relevant to Count VI. I do wish to emphasize, however, that though
Currier’s opinion may be admissible as to highly technical legal questions, such as
the standard of care required of B&P and the applicability of the safe harbor
provision, my ruling here should not be taken as a carte blanche for either party to

introduce expert testimony on any and all legal issues. Should either party’s expert
stray into the exclusive domain of the judge, either in the forthcoming summary
judgment motions or at trial, the other side may lodge an objection at that time.
MOTION TO STRIKE

I. Legal Standard
Fed. R. Civ. P. 26 requires that expert witnesses, at a date set by the court,
disclose to the opposing party “a complete statement of all opinions the witness will
express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). Rule 26
also creates a duty for parties to supplement prior expert witness disclosures “if the
party learns that in some material respect the disclosure or response is incomplete or
incorrect.” Fed. R. Civ. P. 26(e)(1)–(2). Under Fed. R. Civ. P. 37(c), “[i]f a party fails

to provide information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1).
II. Discussion
Klinges argues that Currier’s supplemental expert witness designation should
be stricken because it is not properly considered a supplement under Fed. R. Civ. P.

26, and because preclusion is appropriate under Fed. R. Civ. P. 37. I agree.
“Supplementation as contemplated by Rule 26 is a method of ‘correcting
inaccuracies, or filling the interstices of an incomplete report based on information
that was not available at the time of the initial disclosure.’ ” Me. Med. Ctr. v. William

A. Berry & Son, Inc., 2:16-cv-00052-JDL, 2017 WL 1411478, at *2 (D. Me. Apr. 20,
2017) (quoting Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998)). Here,
by B&P’s own admission at oral argument, the supplemental designation neither
corrects any inaccuracy nor fills in gaps based on new information. Thus, neither
justification for supplementation applies and I must consider whether preclusion is
the proper remedy under Fed. R. Civ. P. 37.
“[A]lthough [Rule 37] sanctions can vary depending on the circumstances, ‘the

baseline rule is that the required sanction in the ordinary case is mandatory
preclusion.’ ” Harriman v. Hancock Cnty., 627 F.3d 22, 29, (1st Cir. 2010) (quoting
Santiago–Díaz v. Laboratorio Clínico y de Referencia del Este, 456 F.3d 272, 276 (1st
Cir. 2006)). The factors used to analyze whether a failure to disclose is substantially
justified or harmless include:
(1) the history of the litigation; (2) the sanctioned party’s need for the
precluded evidence; (3) the sanctioned party’s justification (or lack of
one) for its late disclosure; (4) the opponent-party’s ability to overcome
the late disclosure’s adverse effects—e.g., the surprise and prejudice
associated with the late disclosure; and (5) the late disclosure’s impact
on the district court’s docket.
Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009). “The burden is
on the party that has failed to comply with discovery deadlines to establish that his
failure is harmless or substantially justified.” U.S. Bank Nat’l Ass’n v. James, Civil
No. 09-84-P-JHR, 2010 WL 1416126, at *6 (D. Me. Apr. 5, 2010).
Here, B&P has not met its burden of proving that its failure to timely disclose
Currier’s opinion regarding equity compensation was harmless or substantially
justified. First, the history of litigation shows that discovery closed on December 27,

2021, and B&P waited two months to file its supplemental designation. Second, B&P
has not presented evidence that the supplemental opinion is necessary to its case.
Third, B&P has offered no compelling justification for its supplement. Rather, counsel
for B&P admitted during oral arguments that its supplemental designation was not
based on any information that wasn’t already available to Currier at the time of the
original designation in October of 2021. Fourth, the Plaintiff would suffer prejudice
if B&P were allowed to use Currier’s supplemental opinion in its defense. Klinges

relied on the original designation in drafting her motion to exclude, planning for
summary judgment practice, and engaging in settlement negotiations. If I were to
deny the motion to strike, it would, at the very least, force Klinges to amend her
motion to exclude and to reopen discovery so that Currier’s deposition could be re-
taken. Finally, and perhaps most importantly, allowing the supplemental designation
would have a considerable impact on this Court’s docket, delaying an already years-

old case even further. Taken together, the Esposito factors point to preclusion. Thus,
the motion to strike is granted.
CONCLUSION
For the reasons stated above, the Court DENIES the motion to exclude (ECF

No. 123) and GRANTS the motion to strike (ECF No. 139).
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 11th day of May, 2022.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211405. Public record. Not legal advice.