United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
matter is before the Court upon the United States' Motion
in Limine to Exclude Improper Expert Testimony and
Motion to Quash Subpoenas. [R. 120; R. 195.] The United
States moves to exclude two of Mr. Lundergan's proposed
expert witness, Mr. Michael Toner and Mr. Peter Nichols, on
the grounds that their testimony is irrelevant and would
consist of improper legal conclusions. Id. Seemingly
in reaction to the chance his experts might be excluded, Mr.
Lundergan issued subpoenas to three FEC officials on August
8, 2019. The United States moves to quash the subpoenas on
the grounds that these witnesses would offer the same,
impermissible legal testimony as defendant's proffered
experts. [R. 195.] For the following reasons, the United
States' motion to exclude is DENIED,
while the motion to quash is GRANTED.
parties are well-aware of the facts undergirding this case:
defendant Gerald C. Lundergan, along with co-defendant Dale
C. Emmons, are alleged to have violated various portions of
the Federal Election Campaign Act (FECA). [See R.
1.] More specifically, the United States alleges that Mr.
Lundergan and co-defendant Dale C. Emmons participated in a
scheme to funnel hundreds of thousands of dollars in
corporate funds into the 2014 United States Senate Race. [R.
120-1 at 2.] In discharging their duty, the jurors in this
case will be required to apply the facts presented at trial
to the law of the FECA to determine whether or not the
defendants' conduct violated that act.
FECA is a myriad of rules and regulations, and the Federal
Election Commission (FEC) is the administrative agency in
charge of administering and enforcing it. See Buckley v.
Valeo, 424 U.S. 1, 279 (1977). For that reason, on July
2, 2019, Mr. Lundergan sent notice to the United States of
his intent to call expert witnesses Michael Toner and Peter
Nichols, two former officials of the FEC. [R. 120-1 at 3.]
Mr. Toner is “former Chairman of the Federal Election
Comission” and “a leading practitioner in
election and campaign finance law.” [R. 120-2 at 2.]
Mr. Nichols is “the owner of Common Sense Consulting, a
consulting business that provides campaign finance compliance
advice[.]” [R. 120-3 at 1.] Also, Mr. Nichols formerly
worked in the FEC's Reports and Analysis Division.
Id. at 2. The experts would testify to, broadly
speaking, the relevant rules and regulations of the FECA.
United States filed a Motion in Limine to exclude
Mr. Toner and Mr. Nichols' testimony on the grounds that
the experts' testimony “would consist of
impermissible legal conclusions, does not rest upon a
reliable methodology that can be objectively analyzed, would
serve to confuse the jury, and is otherwise irrelevant to the
issues properly in dispute at trial.” [R. 120-1 at 7.]
In contrast, Mr. Lundergan argues that such testimony is
necessary to aid the jury because the regulations surrounding
campaign finance law is extremely complex, and “would
provide a necessary framework through which the jury can
understand the alleged crime.” [R. 136-1 at 5.]
close of voir dire, the Court heard further argument from the
parties on the motion to exclude. At that time, counsel for
Mr. Lundergan indicated that if this Court excluded the
expert testimony, the defense team might issue subpoenas to
current FEC officials to elicit similar testimony.
admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which states:
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.
seminal case evaluating expert testimony is Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). In that
decision, the Supreme Court explained that a district
court's gatekeeping responsibility is implicit in Rule
702, “ensuring that an expert's testimony both
rests on a reliable foundation and is relevant to the task at
hand.” Daubert, 509 U.S. at 597. Further, the
Supreme Court listed several specific factors to help
determine the reliability of expert testimony based on
scientific knowledge. See Id. at 590, n. 8. These
factors include whether a theory or technique can be or has
been tested; whether the theory has been subjected to peer
review and publication; whether there is a high known or
potential error rate; whether there are certain operation
standards that should have been or were followed; and whether
the theory or technique is generally accepted within the
scientific community. Id. at 592-94. Later, in
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),
the Supreme Court determined that the gatekeeping obligation
and subsequent factors established in Daubert apply
with equal force to non-scientific experts. However, those
factors are not definitive and district courts “must
have considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony
is reliable.” Kumho, 526 U.S. at 152.
Rule 702 and Daubert, the Sixth Circuit has
distilled a two-part test for admitting expert testimony.
First, is the expert qualified and the testimony reliable?
And second, is the evidence relevant and helpful to the trier
of fact? See, e.g., United States v. Jones, 107 F.3d
1147, 1156 (6th Cir. 1997). Notably, the Court's
gatekeeping role under the case law “is not intended to
supplant the adversary system or the role of the jury.”
Allison v. McGhan Medical Corp., 184 F.3d 1300, 1311
(11th Cir. 1999). Instead, “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”
Daubert, 509 at 596. Whether or not to admit expert
testimony is a matter over which the district court