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Civil Practice – Expert Witness – Dismissed Claims

Plaintiff’s proffered damages expert, Scott Barnes, bases his opinions on claims that were dismissed at the summary judgment stage. Such opinions are inherently irrelevant.

The court grants defendants’ motion to exclude Barnes’ report and to limit plaintiff’s evidence of damages. The court also grants plaintiff’s motion to exclude defendants’ expert witness.

Plaintiff had 18 months between the filing of its complaint and the end of discovery to provide to defendants any other evidence of plaintiff’s damages, outside of Barnes’ report. Plaintiff failed to do so and will not be permitted to introduce new theories or evidence of damages at the eleventh hour.

Defendants designated Mickey Ferri as a rebuttal expert against Barnes. Testimony from a rebuttal expert that attacks another, already-excluded expert is inherently irrelevant. Indeed, defendants concede that if Barnes is excluded, then Ferri should be excluded, too.

Vitaform, Inc. v. Aeroflow, Inc. (Lawyers Weekly No. 020-020-23, 22 pp.) (Louis Bledsoe, C.J.) Jeffrey Smith, John DeVoss, Jake Snider and Taylor Caulk for plaintiff; Joseph Schouten, Hayley Wells and Jordan Spanner for defendants. 2023 NCBC 20A

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