The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
THOMAS W. MCNAMARA, as the Court- )
Appointed Receiver for SSM Group, LLC; )
CMG Group, LLC; Hydra Financial Limited )
Fund I; Hydra Financial Limited Fund II; Hydra )
Financial Limited Fund III; Hydra Financial )
Limited Fund IV; River Elk Services, LLC; )
OSL Marketing, Inc., a/k/a OSL Group, Inc.; )
and related subsidiaries and affiliates, )
)
Plaintiff, )
)
v. ) Case No. 4:16-cv-01203-SRB
)
KATTEN MUCHIN ROSENMAN LLP )
)
Defendant. )
ORDER
Before the Court are Plaintiff’s Motion in Limine for Order Excluding Certain Proposed
Expert Testimony of Edward J. Heiser and Suggestions in Support (Doc. #125), Plaintiff’s
Motion in Limine for Order Excluding Proposed Expert Testimony of Steve W. Browne and
Suggestions in Support (Doc. #126), and Defendant Katten Muchin Rosenman LLP’s Motion to
Exclude Expert Opinions of Deepak Gupta (Doc. #139). This Order resolves two issues
presented in the Motions and argued by the parties at the in-person hearing held on September 3,
2019. All other issues not addressed in this Order remain pending.
I. Issues of Law
Plaintiff argues Defendant’s experts Steve Browne and Edward Heiser improperly opine
on the state of the law and should be precluded from doing so. Defendant argues Plaintiff’s
expert Deepak Gupta’s “opinions based on errors of law should be excluded.” (Doc. #145, p.
19). The experts in this case will not be permitted to opine on issues of law. “[E]xpert testimony
on legal matters is not admissible.” S. Pine Helicopters, Inc. v. Phoenix Aviation Managers,
Inc., 320 F.3d 838, 841 (8th Cir. 2003) (internal citation omitted). “Matters of law are for the
trial judge, and it is the judge’s job to instruct the jury on them.” Id. While the parties recognize
their experts are prohibited from opining on matters of law, the parties disagree about whether
certain portions of the experts’ opinions involve propositions of law. The parties also disagree in
a number of instances about what propositions of law apply. Aside from the Court’s decision
below, the Court will decide specific matters of law and strike portions of the experts’ reports in
which the experts improperly testify on matters of law in a separate order.
II. Requirements for Proving Causation and Damages
The parties disagree about whether the requirements for proving the causation and
damages elements of a legal malpractice claim as set forth in SKMDV Holdings v. Green
Jacobson, P.C., 494 S.W.3d 537, 547 (Mo. App. E.D. 2016) and Nail v. Husch Blackwell
Sanders, LLP, 436 S.W.3d 556, 565 (Mo. banc 2014) apply to Plaintiff’s legal malpractice claim.
Defendant argues SKMDV and Nail apply and require Plaintiff to prove: (1) the settlement in the
underlying case would have been less or unnecessary but for the law firm’s negligence; (2) the
plaintiff’s total recoverable damages in the underlying case attributable to the negligent law firm;
and (3) the settlement was reasonable mitigation of the total recoverable damages. Defendant
argues that Mr. Gupta’s opinion that the underlying settlement in this case was necessary to
mitigate damages should be excluded because he failed to analyze all relevant considerations.
Plaintiff argues that SKMDV and Nail do not apply because those cases involve transactional
malpractice claims. Plaintiff argues that under Williams v. Preman, 911 S.W.2d 288, 297 (Mo.
App. W.D. 1995), overruled on other grounds by Klemme v. Best, 941 S.W.2d 493 (Mo. banc
1997), Plaintiff is only required to prove that settlement was necessary to mitigate damages.
Plaintiff argues that Mr. Browne’s opinion that relies on the standard set forth in SKMDV and
Nail must be excluded.
The Court finds SKMDV and Nail do not apply to this case, as those cases address the
requirements to establish causation and damages in the specific context of transactional
malpractice. 494 S.W.3d 537, 545–46 (“[I]n the context of transactional malpractice, . . . we
hold, that a plaintiff must show that an agreement more preferable to the plaintiff likely would
have been consummated but for the negligence of the defendant attorney.”) (internal citation and
quotation marks omitted); 436 S.W.3d 556, 566 (A transactional malpractice plaintiff “must
prove that [the other contracting party] would have agreed to the relevant provisions” and that
“but for the negligent drafting [of the subject contract] the result would have been more
favorable.”). This case is controlled by Williams, which sets forth “the test for justifying passing
the cost of the settlement on to the defendant,” which “is to prove that plaintiff was driven to the
necessity of settling because, if the case had not been settled, plaintiff would have been worse
off.” 911 S.W.2d at 298–300 (“Because the attorney who is accused of negligence is allowed no
voice in whether the underlying claim is settled, such attorney ought to be entitled to require that
the plaintiff prove that the settlement was necessary to mitigate plaintiff's alleged damages.”)
Mr. Gupta and Mr. Browne may testify and face cross-examination concerning “the necessity
and wisdom of settlement” and regarding “what would have happened if the adversarial action
had been tried rather than settled.” Id. The Court will rule on specific portions of the expert
reports that must be eliminated in light of this Order in a separate order.
IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH, JUDGE
UNITED STATES DISTRICT COURT
DATE: September 5, 2019