Judge Nottingham Excludes Expertise of Prof. Daniel Fischel

Last Thursday was arguably one of the most exciting days since the start of Joseph Nacchio’s criminal hearings. The morning began with a brief testimony from Denver billionaire, Phillip Anschutz, and continued with further testimony from Abbot Giles Hayes O.S.B.  After Abbot Hayes was excused from the stand, Judge Nottingham ruled on the Government’s motion to exclude Daniel Fischel’s testimony, apparently catching the Defense unprepared.  

The following statements made by Judge Nottingham are taken directly from the Court’s Transcript.

The Government argues that this – the testimony consists of a recitation of facts not within the witness' personal knowledge. The Government argues that the testimony is not necessary and will not help the jury. It argues that Mr. Fischel is not a qualified expert. It argues that the defense has not established that the witness used a reliable methodology in reaching his opinions. And it argues that the facts upon which Fischel relied in making his opinion are not the ones upon which a reasonable expert would rely.

The testimony is excludable on a number of rationales. Most convincingly, the defendant has made no attempt to comply with Rule 702 or Daubert and establish that Fischel's testimony is the product of reliable principles and methods or that Fischel applied some principles and methods reliably in this case.

Pursuant to Tenth Circuit case law, any step that renders the analysis unreliable renders the expert's testimony inadmissible.

The Court is concerned not only with the methodology, which is absolutely undisclosed in this expert disclosure, the Court is concerned that the Rule 702 stipulation that the testimony must be helpful to the jury is not met here.

First, many aspects of the testimony are simply nothing more than closing argument meant to rebut a suggestion in a government closing argument or to buttress or repeat or foreshadow an argument in the defense closing argument.

If the defense wants to do a similar summary and spin it differently, the defense may do so. It may not spin it differently by offering the testimony of an expert who purports to offer an opinion or a conclusion that the jury can draw from other evidence in the case.

The Court is also concerned that this would not be helpful to the jury because a lot of what this man is proposed to testify to is within the common knowledge of the jury and can be -- is a conclusion that the jury can draw based on argument and the evidence in the case.

For all of those reasons, primarily the gross defect in failing to reveal the methodology, the motion to exclude the testimony of Daniel Fischel is granted.

Although Nottingham’s ruling may appear as the type of ruling one would anticipate during the course of any criminal trial; the Defense was anything by prepared for it, which set the ground for what may possibly be the most exciting exchange between Judge Nottingham and lead Defense counsel, Herbert Stern.  The two sides have filed motions on the testimony of Daniel Fischel so the battle will continue this morning.   The motions (and the transcript of the hearing on Thursday) may be found on the DU Corporate Governance web site.