Trusts & Estates Expert Witness Testimony Not Allowed

Plaintiffs sued Defendants over the mismanagement of a Trust.  The Defendants hired a trusts & estates expert witness to provide testimony, to which the Plaintiffs filed a motion to exclude.  The court granted the motion.

Facts: This case (Kerns et al v. Beam et al – United States District Court – Western District of Kentucky – August 18th, 2017) involves a dispute over the administration of a trust.  The Plaintiffs allege that the Defendants caused disproportionate distributions to be made from a sub-trust of the Thomas H. Kerns Trust.  These distributions resulted in the exhaustion of the main part of the sub-trust, to the which the Plaintiffs are beneficiaries.  The Defendants hired Jack Combs, Jr (trusts & estates expert witness) to provide expert witness testimony on their behalf.  The Plaintiffs filed a motion to exclude this testimony.

Discussion:  Mr. Combs, in his opinions, forms four main points: 1) The Defendant acted reasonably at all times with respect to the terms of the Trust; 2) All of the expenses challenged by the Plaintiffs qualify as furthering the best interests of the terms of the Trust; 3) It was well within the Bank’s right to make distributions related to the services provided by Ms. Humphrey and 4) The Bank acted in accordance to the terms of the Trust when it made distributions from principal.

The Plaintiffs allege that Mr. Combs’ expert report contains opinion son the ultimate issues of the case, is not reliable, and will not assist the trier of fact.

First, the Plaintiff’s allege that Mr. Combs defines the scope of the Bank’s fiduciary duty and then opines on the ultimate issue as to whether or not the Bank breached that duty.  The Plaintiffs also allege that Mr. Combs’ opinion contains an impermissible legal conclusion.  The court ruled that Mr. Combs does not provide legal conclusions in that he never explicitly stated that the Bank did not breach its fiduciary duty.  In addition, his report does not tell the jury what conclusion to reach.

Second, the Plaintiffs claim that Mr. Combs’ relied on his undefined experience to render his opinion, which makes it unreliable.  The Plaintiffs maintain that they will not be able to cross-examine his methodology at trial because he has not explained how his general experience assisted him in forming his conclusions.  The Defendants reply that Mr. Combs’ testimony if neither scientific nor technical.  Thus, they note that Daubert factors are irrelevant.  The court agreed with the Plaintiffs, stating that there is too great an analytical gap between the data and the opinion proffered.  Mr. Combs’ failed to explain how his experience led to the conclusions that he reached.

Last, the Plaintiffs argue that the Mr. Combs’ opinion will not assist the trier of fact.  They state that he just recites testimony that fact witnesses will testify at trial and that  he just regurgitates the banks position in this case.  The court agreed, stating that a lay person without experience can read the Trust document and make his or own conclusions.

Conclusion:  The motion to exclude the expert witness testimony of Jack Combs, Jr is granted.