# Santa Fe Natural Tobacco Co. v. Dept. of Rev.

> Oregon Tax Court · May 3, 2021 · 24 Or. Tax 549

URL: https://www.frixlaw.com/law-library/cases/10607344

## Case

- **Court:** Oregon Tax Court
- **Decided:** May 3, 2021
- **Citations:** 24 Or. Tax 549
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Manicke
- **Cited by:** 1 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/10607344

## Opinion text

No. 24 May 3, 2021 549

IN THE OREGON TAX COURT
REGULAR DIVISION

SANTA FE NATURAL TOBACCO COMPANY,
Plaintiff,
v.
DEPARTMENT OF REVENUE,
Defendant.
(TC 5372)
On cross-motions to strike expert testimony, Defendant Department of
Revenue (the department) argued that Plaintiff’s expert testimony about tax pol-
icy was legal opinion that intruded on the court’s province and did not assist the
court as trier of fact to “understand the evidence or to determine a fact in issue.”
Plaintiff argued that the testimony did not constitute an opinion of law and that
the court, sitting without a jury, was authorized and required to admit the tes-
timony. The court concluded that the testimony related to the background and
development of the law at issue, 15 USC section 381 (Public Law 86-272), could be
considered by the court, but not as factual evidence. To the extent that the expert
witnesses applied law to facts, the court concluded that the court was “equally
qualified” to make those determinations and therefore the testimony was not
admissible under Oregon Evidence Code (OEC) 702 because it did not help the
court understand the evidence or determine the ultimate facts. Therefore, por-
tions of the expert testimony were admitted to qualify the witnesses as experts
and for the limited purpose of informing the court on the origins and background
of the formation of Public Law 86-272.

Submitted on the parties’ motions to strike expert
testimony.
Mitchell A. Newmark, Blank Rome LLP, New York, filed
the motion for Plaintiff.
Darren Weirnick, Senior Assistant Attorney General,
Department of Justice, Salem, filed the motion for Defendant.
Decision rendered May 3, 2021.
ROBERT T. MANICKE, Judge.
I. INTRODUCTION
The substantive issue in this case is whether 15
USC section 381 (Public Law 86-272)1 protected Plaintiff
1
Public Law 86-272 provides, in pertinent part:
“(a) No state * * * shall have power to impose * * * a net income tax on the
income derived within such State by any person from interstate commerce if
550 Santa Fe Natural Tobacco Co. v. Dept. of Rev.

(taxpayer) from Oregon’s net income tax for tax years 2010
through 2013. During those years, taxpayer was an out-of-
state manufacturer, marketer, and distributor of cigarettes
and other tobacco products. The department contends that
taxpayer engaged in two activities that exceeded the protec-
tion of Public Law 86-272:
“1. Oregon wholesalers’ acceptance of returns from
Oregon retailers of [taxpayer’s] products covered by [tax-
payer’s] ‘100% Guarantee’ to Oregon retailers, pursuant to
agreements between [taxpayer] and Oregon wholesalers.
“2. [Taxpayer’s] Oregon employees’ activity directly
placing with Oregon wholesalers so-called ‘pre-book’ orders
by Oregon retailers, which orders Oregon wholesalers were
required to accept pursuant to agreements between [tax-
payer] and the wholesalers.”
Pub L 86-272, § 101, 73 Stat. 555 (1959). In response to
the department’s first allegation taxpayer asserts, alter-
natively, that Oregon wholesalers either did not act on tax-
payer’s behalf when accepting returns or were independent
contractors engaging in an activity that is not considered
a business activity of taxpayer under Public Law 86-272.
In response to the second allegation, taxpayer asserts that
the placing of pre-book orders with Oregon wholesalers was
a “missionary” activity that Public Law 86-272 protects.
The parties have stipulated to all relevant facts and have
the only business activities within such State by or on behalf of such person
during such taxable year are either, or both, of the following:
“(1) the solicitation of orders by such person, or his representative, in
such State for sales of tangible personal property, which orders are sent out-
side the State for approval or rejection and, if approved, are filled by ship-
ment or delivery from a point outside the State; and
“(2) the solicitation of orders by such person, or his representative, in
such State in the name of or for the benefit of a prospective customer of such
person, if orders by such customer to such person to enable such customer
to fill orders resulting from such solicitation are orders described in para-
graph (1).
“* * * * *
“(c) For purposes of subsection (a) of this section, a person shall not be
considered to have engaged in business activities within a State during any
taxable year merely by reason of sales in such State, or the solicitation of
orders for sales in such State, of tangible personal property on behalf of such
person by one or more independent contractors, or by reason of the main-
tenance of an office in such State by one or more independent contractors
whose activities on behalf of such person in such State consist solely of mak-
ing sales, or soliciting orders for sales, of tangible personal property.”
Cite as 24 OTR 549 (2021) 551

agreed that the factual record is closed, stating that “at trial
neither party may introduce witness testimony or exhibits
that are not contained in this Joint Stipulation of Facts.”
Accordingly, the parties’ arguments are based entirely on
their respective legal positions as to whether the activities
at issue subjected taxpayer to Oregon tax or were within the
protection of Public Law 86-272.
As part of the parties’ stipulations, taxpayer reserved
the right to call one expert witness at trial, and the depart-
ment reserved the right to present expert witness testimony
in rebuttal. The court set a one-day trial on October 15,
2020, solely for the purpose of hearing testimony from the
two witnesses. The parties were not required to, and did
not, exchange the identity of the witnesses they expected
to qualify as experts. As part of pretrial submissions, the
department filed a motion in limine setting forth grounds
for objections it anticipated raising to taxpayer’s proffered
expert testimony. At trial, the department made its objec-
tions to the admission of the testimony of taxpayer’s witness.
The court took the objections under advisement, allowed the
testimony of both witnesses to proceed, and directed the
parties to submit arguments in writing after trial for the
court to address in this order, to be followed by post-trial
briefing on the substantive issues. Taxpayer then offered
testimony of Professor Richard D. Pomp as an “expert in
tax policy and Public Law 86-272.” On rebuttal, the depart-
ment offered testimony of Benjamin F. Miller, also as “an
expert in tax policy.” Taxpayer’s counsel objected and asked
the court to exclude Miller’s testimony if the court excludes
the testimony of taxpayer’s proffered expert Pomp. Because
taxpayer’s objections are conditional, and the department’s
objections are more extensive, the court frames this order by
reference principally to the department’s objections.
The department’s general objection is that taxpay-
er’s proffered testimony about tax policy is indistinguish-
able from legal opinion that intrudes on the province of the
court and does not assist the court as trier of fact to “under-
stand the evidence or to determine a fact in issue * * *” as
required by Oregon Evidence Code (OEC) 702 (ORS 40.410).
Taxpayer argues that the department bases its objection on
the erroneous premise that “there is no such thing as tax
552 Santa Fe Natural Tobacco Co. v. Dept. of Rev.

policy that exists apart from black letter law,” and taxpayer
argues that Pomp’s testimony did not “cross the line into an
opinion of law.” Taxpayer also asserts that this court, as a
court without a jury, is authorized and required to admit the
testimony.
II. ISSUE
Is the proffered expert witness testimony admissible?
III. DISCUSSION
The court considers the proffered testimony and
objections in two parts, consistent with the order of presen-
tation: the origin and development of Public Law 86-272 and
cases applying that statute, and the application of tax policy
to the facts of this case. All of the testimony fits into one of
these categories, except testimony related to the witnesses’
qualifications, which the court addresses in the first part.
A. Testimony on Origin and Development of Public Law
86-272
After addressing qualifying questions, discussed
below, each witness testified generally about state taxation
of interstate commerce under Public Law 86-272 and consti-
tutional restrictions. Pomp testified about growth in inter-
state commerce after the Great Depression and about court
decisions and concerns within the business community that
led up to the passage of Public Law 86-272, as well as subse-
quent efforts to develop uniformity in state taxation through
the period preceding Wisconsin Dept. of Rev. v. William
Wrigley, Jr. Co., 505 US 214, 112 S Ct 2447, 120 L Ed 2d 174
(1992). Miller briefly discussed the age of Public Law 86-272
and referred to Wrigley and South Dakota v. Wayfair, Inc.,
585 US ___, 138 S Ct 2080, 201 L Ed 2d 403 (2018).
The court considers whether this testimony consti-
tutes legal analysis that is the province of the court and
is not a proper subject for expert testimony. See Jackson
v. Franke, 304 Or App 503, 512, 467 P3d 779, rev allowed,
367 Or 220 (2020) (reviewing trial court’s denial of crim-
inal defendant’s claim for post-conviction relief based on
ineffective assistance of counsel; approving trial court’s
Cite as 24 OTR 549 (2021) 553

exclusion of criminal defense lawyer’s testimony on “cor-
rect interpretation of case law”); see generally Stobie Creek
Investments, LLC v. U.S., 81 Fed Cl 358, 360 (2008) (in tax-
payer’s challenge to income tax adjustments, declining to
admit taxpayer’s proffered expert testimony of tax profes-
sor and tax attorney that “testifies about what the law is or
directs the finder of fact how to apply law to facts”); Laird
C. Kirkpatrick, Oregon Evidence 648 (7th ed 2020) (“In gen-
eral, questions of law are for the court and are not a proper
subject for expert testimony to the jury.”).

The court starts by considering whether a field of
tax policy may exist separate from the field of tax law. The
parties have not attempted to define “tax policy.” The court
generally understands tax policy to focus on the choices
that governmental leaders make in response to, or in antic-
ipation of, economic, social, and other concerns related to
taxation. See generally Webster’s Third New Int’l Dictionary
1754 (unabridged ed 2002) (defining “policy” as “a definite
course or method of action selected (as by a government,
institution, group, or individual) from among alternatives
and in the light of given conditions to guide and usually
determine present and future decisions”). Because taxation
is an inherently governmental function, the court focuses on
policy-making by government actors. See id. at 2345 (defin-
ing “tax” as a “charge imposed by legislative or other pub-
lic authority * * * for public purposes”). Based on this broad
understanding, the legislative branch has a primary role in
tax policy-making, which it exercises by hearing the con-
cerns of the public and of interested persons, choosing which
concerns to address and how to do so, and writing laws that
reflect those choices. The legislative branch also may make
policy less formally and without writing laws, for example,
by convening or encouraging work groups that result in
negotiated solutions without legislation, or by engaging in
budgetary and other oversight of the executive branch. Even
holding hearings and conducting other public factfinding
efforts might constitute a definite course of action intended
to influence public opinion and change the course of events.2

2
The court does not rule out the possibility that other actors within or with-
out government may influence or participate in making tax policy.
554 Santa Fe Natural Tobacco Co. v. Dept. of Rev.

The court concludes that a field of tax policy exists
that includes, but is broader than, the field of tax law. The
study of tax policy may, for example, encompass historical
evidence of the forces leading to policy-makers’ choices,
alternatives they could have pursued, and social and eco-
nomic consequences of enacted tax laws. The court does not
doubt that policy-makers and scholars in a range of disci-
plines such as law, but also history, economics, and other
social sciences, may achieve a high level of understanding of
tax policy, thus defined, and may help the court by adding
context to the text of the law. This seems to have been one
of taxpayer’s aims in presenting expert testimony at trial.
During taxpayer’s introduction to its case in chief, it urged
the court to “hear about the policy aspects of what was driv-
ing Public Law 86-272. What is happening in the nexus uni-
verse regarding Public Law 86-272.”
Having identified a field constituting tax policy, the
court considers the qualification of each party’s witness.3
Richard Pomp is a distinguished scholar: He is a profes-
sor at the University of Connecticut Law School and at the
New York University LLM program in taxation, the author
of numerous articles and teaching materials, and a fre-
quent speaker at tax-related conferences. The department
acknowledges his expertise in tax law but argues there is
no proof of his expertise in tax policy. It is uncontested, how-
ever, that Pomp has drafted tax laws as a consultant for
several states and led a commission to reform New York’s
corporate and personal income taxes. The court recognizes
this experience in particular as an indicator of his qualifica-
tion as an expert in tax policy. By definition, he worked for
and with policy-makers, and at a bare minimum this task
has required him to understand their tax policy goals and
translate them into tax laws. Benjamin Miller, a graduate of
Stanford Law School, had a long career with the California
Franchise Tax Board working on matters involving multi-
state taxpayers, and he served as California’s representa-
tive to the Multistate Tax Commission. Taxpayer did not
object to Miller’s qualification. The court finds both wit-
nesses qualified as experts in tax policy.
3
To do so, the court will admit as factual evidence the portions of testimony
related to each witness’s qualifications, as identified at the end of this order.
Cite as 24 OTR 549 (2021) 555

The court next considers whether it can benefit
from an expert’s view of tax policy as background. The court
decides statutory cases based on legislative intent. When
a federal statute governs the case, as Public Law 86-272
does here, the court applies federal principles of statutory
construction to better understand Congress’s intent. Etter
v. Dept. of Rev., 360 Or 46, 52, 377 P3d 561 (2016) (Oregon
courts must apply federal law when interpreting a federal
statute, which requires an analysis of the statute’s text,
structure, and legislative history). Federal principles allow
the court to consider a range of factors as relevant to the
“structure” or “context” of the statute. See id. (citing Dept. of
Rev. of Or. v. ACF Industries, 510 US 332, 339-46, 114 S Ct
843, 127 L Ed 2d 165 (1994)). However, the context supplied
by a deeper understanding of tax policy can be useful to the
court only if it reveals something that Congress did or did
not intend when it wrote the law. Therefore, the very insights
that make the proffered information helpful to the court,
when presented as witness testimony, also risk “intruding
on the province of the court.” See Hunters Ridge Condo. Ass’n
v. Sherwood Crossing, LLC, 285 Or App 416, 442-43, 395 P3d
892 (2017) (“It is well established that the adjudication of an
‘issue of law’ is generally the province of the judge, while an
‘issue of fact’ is ordinarily determined by a jury.”).
As a court that sits always in equity and without
a jury, this court has few concerns about intrusion on the
province of the court when the subject of the testimony is
the origin and development of the law. See ORS 305.425.
The court can determine for itself whether the testimony
aids the court’s understanding of the law and can assign the
testimony whatever weight is merited. Nor does testimony
of that limited sort implicate OEC 702, because the court
does not hear it in the court’s capacity as “trier of fact.” See
OEC 702 (allowing expert testimony if “specialized knowl-
edge will assist the trier of fact to understand the evidence
or determine a fact in issue”). The concerns about expert
testimony regarding legal background, as identified in cases
and scholarly articles, appear to stem primarily from the
risk that testimony on that subject during trial could con-
fuse a jury that receives a different summary of the law in
jury instructions. See Charles W. Ehrhardt, The Conflict
556 Santa Fe Natural Tobacco Co. v. Dept. of Rev.

Concerning Expert Witnesses and Legal Conclusions, 92 W
Va L Rev 645, 666-71 (1990) (courts have held legal opinion
testimony inadmissible under Federal Rule of Evidence 702
because it “interfere[s] with the province of the trial judge
to determine and instruct the jury on the law”); Thomas E.
Baker, The Impropriety of Expert Witness Testimony on the
Law, 40 U Kan L Rev 325, 337 (1992) (“If the expert’s tes-
timony conflicts with that of the judge, the testimony may
actually make the jury’s determination more difficult.”).
Having no risk of jury confusion, the court concludes
that so much of each party’s proffered expert testimony as
is limited to the origins and background of policy-makers’
decisions in the formation of the law will be admitted for the
purpose of informing the court in its role as interpreter of the
law. This means that the parties may refer in post-trial brief-
ing to the portions of testimony specifically identified at the
end of this order as statements by recognized experts on the
background and development of the law. The court will con-
sider those statements along with other sources, such as pub-
lished materials, and will assign to them whatever weight
the court considers them to merit based on factors such as
their grounding in sources available to the court and their
internal logic and inherent persuasiveness. The court will
not admit these portions of testimony as factual evidence.4
B. Testimony on Application of Tax Policy to Facts
The court now considers the department’s objec-
tions to proffered testimony on the application of tax policy
(which, as discussed, may encompass tax law) to the facts of
this case. In contrast to general background testimony on
policy or the law, this kind of testimony is squarely governed
by OEC 702. The legislature has chosen to make the Oregon
Evidence Code applicable specifically to this division of the
court, in full awareness that matters in this court are “tried
without a jury.” OEC 101(1)(a) (OEC applies to Regular
Division proceedings); ORS 305.425(1) (no jury).

4
The court encourages counsel in future to consider the alternatives avail-
able in this court. Although a trial court, this court has an established amicus
curiae procedure, as discussed in greater detail below. See Tax Court Rule (TCR)
48. And, of course, parties may cite the views of experts on policy or law in regu-
lar briefing.
Cite as 24 OTR 549 (2021) 557

To be admissible under OEC 702, expert testimony
must help the court, in its role as trier of fact, determine an
issue of fact or understand the evidence:
“If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training or education may
testify thereto in the form of an opinion or otherwise.”
OEC 702. In 1981, Oregon adopted verbatim the then-
existing text of Rule 702 of the Federal Rules of Evidence
and the accompanying commentary. OEC 702 Commentary
(1981) (“Oregon Rule of Evidence 702 * * * is identical to Rule
702 of the Federal Rules of Evidence, and the Legislative
Assembly adopts the commentary of the federal advisory
committee[.]”). Under OEC 702 and case law, the court should
admit testimony of a qualified expert if the testimony would
“aid or * * * help the [finder of fact] to conclude the ultimate
question framed by the pleadings.’ ” Brown v. Boise-Cascade
Corp., 150 Or App 391, 946 P2d 324 (1997) (applying OEC
702; quoting Yundt v. D & D Bowl, Inc., 259 Or 247, 258,
486 P2d 553 (1971)); see also OEC 701 (requiring that lay
testimony be “[h]elpful to a clear understanding of * * * the
determination of a fact in issue”). On the other hand, the
court should not admit expert testimony if the finder of fact
“clearly is equally qualified [to determine the facts] with-
out help from opinion testimony.” Yundt, 259 Or at 259. In
the “area between the clearly qualified [trier of fact] and the
clearly unqualified [trier of fact],” the court has “a certain
latitude of decision in excluding or receiving expert opin-
ion testimony.” Id.; see State v. Jesse, 360 Or 584, 599, 385
P3d 1063 (2016) (Supreme Court’s “decisions have confined
the role of judicial discretion to circumstances involving
factual issues neither clearly within, nor beyond, the jury’s
assumed level of understanding”). When a witness seeks to
apply the law to the facts of a case, Oregon courts repeatedly
have held the testimony inadmissible under OEC 702. E.g.,
Jackson, 304 Or App at 512; State v. Woodford, 293 Or App
484, 487-88, 428 P3d 971 (2018) (trial court committed non-
harmless error by admitting as expert testimony police offi-
cer’s statement that he saw “ ‘no elements of a crime being
committed’ ”); see also Olson v. Coats, 78 Or App 368, 370-71,
558 Santa Fe Natural Tobacco Co. v. Dept. of Rev.

717 P2d 176 (1986) (citing common law) (“A witness may not
testify regarding a legal conclusion.”).
The court finds that the testimony not addressed in
the first part of this order falls outside the range of testimony
that the court must, or may, admit. The testimony applying
tax policy to the facts is primarily limited to application of
tax law to the facts.5 At trial, Pomp discussed Justice Scalia’s
focus in Wrigley on whether and where “solicitation” occurs
in applying Public Law 86-272. He also described Wayfair as
determining that it is “sound policy to maintain a level playing
field between local merchants that are selling and collecting
the sales tax and remote vendors that are selling.” Further,
Pomp discussed returns under taxpayer’s business model and
opined on rights of parties under taxpayer’s contracts and
under Public Law 86-272 pursuant to various agency theories.
He went on to discuss application of agency law and “ancil-
lary” principle under Wrigley to pre-book orders.
The department’s expert, Miller, differentiated between
pre-solicitation and post-sale activities under Wrigley. He
continued with testimony applying Public Law 86-272 to
pre-book orders and gave testimony as to “control” on cross-
examination. As the court interprets Jackson and Woodford,
the court is deemed to be “equally qualified,” to the same
extent as any legal expert, to apply the law in determining
ultimate facts. Under Yundt, therefore, the court lacks discre-
tion to admit the testimony. See 259 Or at 259.
To the extent that either witness mentioned policy
other than Public Law 86-272 or case law, as applied to the
facts, the references are to general ideas or principles, with-
out citation. Professor Pomp described commercial activities
generally as win-win for buyers, sellers, states, and locali-
ties. Miller offered that “everybody’s been tightening down
on this idea that * * * if you’re doing a certain level of busi-
ness, why it’s reasonable to expect—you know, the state gets
compensation for that.” As to these relatively few references,
the court likewise concludes that it is “equally qualified,”

5
The court uses the term “tax” policy or law broadly, encompassing all law
governing the contracts in evidence, as well as concepts such as the degree of
control that a principal must exert before an agent’s actions are attributed to the
principal.
Cite as 24 OTR 549 (2021) 559

and that the testimony therefore does not help the court
understand the evidence or determine the ultimate facts as
required by OEC 702.
Taxpayer urges a more liberal standard for admis-
sion of its proffered testimony because this court conducts
bench trials. (Its brief cited Builders Steel Co. v. Comm’r, 179
F2d 377 (8th Cir 1950).) But beyond the court’s statutory
requirement to apply OEC 702 when acting as factfinder, the
court believes that doing so will help the court create a clear
record for appeal. The Supreme Court reviews this court’s
decisions de novo on “errors or questions of law” but as to
factual questions applies the standard of “lack of substan-
tial evidence in the record.” ORS 305.445. Avoiding expert
testimony on application of the law to the facts will better
enable the Supreme Court, upon review of this or any case,
to determine the capacity in which this court acts when dis-
cussing the law and the factual evidence.
Moreover, the legislature has seen fit to allow this
court some latitude to promulgate its own “rules of prac-
tice and procedure,” and the court several years ago used
that authority to incorporate procedures for an amicus cur-
iae to offer views on a case pursuant to TCR 48. See ORS
305.425(3). The court generally will entertain an application
by any person, with or without a private interest in the case,
to submit a brief as an amicus curiae in summary judgment
proceedings. The court also will consider an application to
participate in oral argument or in argument at trial. See
TCR 48 E, F. The court’s decision to allow an amicus curiae
to appear is discretionary and may be based on the court’s
view of the value of the applicant’s participation.6 The court
believes that the amicus rule—unusual if not unique among
Oregon trial courts—allows the court to entertain either an
explanation of the policy context affecting the development
of the law, or a policy-based interpretation of the facts, or
both. This alternative gives the amicus latitude to make its
point as persuasively as possible while leaving the parties
6
As the court stated at the beginning of trial in this case, in the course of
reserving its ruling on the admissibility of expert witness testimony, the value to
the court of any presentation on tax policy would depend largely on the extent to
which the applicant relies on credible, cited sources that substantiate the policy
explanation and that are available to the court.
560 Santa Fe Natural Tobacco Co. v. Dept. of Rev.

and the court free to adopt, add to, or refute the background
or arguments based on the admitted evidence.
In this case, the court thus admits and excludes
portions of the testimony as follows. The portions admit-
ted as factual evidence of witness qualification are Pomp’s
testimony at Transcript pages 28 through 48 and Miller’s
testimony at Transcript page 143 through page 153, line 2,
as well as related testimony on cross-examination and redi-
rect at Transcript page 117, line 10, through page 126, line
12 (Pomp) and page 162, line 16, through page 165, line 2
(Miller). The portions admitted for the limited purpose of
informing the court on the origins and background of policy-
makers’ decisions in the formation of the law, as described
above, are Pomp’s testimony at Transcript page 50 through
page 68, line 18, and Miller’s testimony at Transcript page
153, line 11, through page 155, line 19. The court excludes
all remaining testimony and will not consider it for any pur-
pose in deciding the case.7
This court has routinely heard expert testimony
and dealt with a range of objections. However, the issue of
the admissibility of expert testimony on tax policy has not,
to the court’s knowledge, been contested previously. Having
reached the foregoing conclusions with the assistance of the
parties’ briefs, the court in this case will entertain applica-
tions of any amici curiae to submit briefs pursuant to TCR
48, should they desire to do so. Any such brief of an amicus
curiae is due seven days after the due date of the post-trial
brief for the party with which the amicus is aligned or, if
the amicus is not aligned with any party, seven days after
taxpayer’s post-trial brief is due. See TCR 48 D.
IV. CONCLUSION
The court admits and excludes the proffered testi-
mony as listed above. Now, therefore,
IT IS ORDERED that Defendant’s Motion to Strike
Expert Testimony is granted in part and denied in part; and
7
The court therefore finds it unnecessary to consider the parties’ other objec-
tions to specific testimony, such as misstatement of the record, attempts to intro-
duce new evidence, or testimony beyond the scope of a witness’s expertise.
Cite as 24 OTR 549 (2021) 561

IT IS FURTHER ORDERED that Plaintiff’s motion,
made orally at trial, to strike the testimony of Benjamin
Miller is granted in part and denied in part.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10607344. Public record. Not legal advice.