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Wells Fargo & Company v. United States

United States District Court, Eighth Circuit

May 27, 2013

WELLS FARGO & COMPANY, et al., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

CHARLES H. GUSTAFSON, Special Master.

ORDER

Plaintiff has moved (Doc 281) to exclude expert testimony of Dr. David LaRue under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993). Having considered the challenges to Dr. LaRue's qualifications, report, deposition, other submissions and potential testimony in this case in the context of the requirements of FRE 702 and the Daubert standards and procedures, it is HEREBY ORDERED that the Plaintiff's motion to exclude Dr. LaRue's testimony is DENIED.

Report of Special Master

REPORT DECIDING PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. DAVID LARUE

Plaintiff's Motion

Dr. David LaRue is one of several individuals retained by the Defendant as expert witnesses to analyze and explain various financial and other aspects of the STARS transactions that are a principal subject of this case. Plaintiff has moved (Doc 281) under Rule 702 of the Federal Rules of Evidence ("FRE") for an order excluding Dr. LaRue's participation as an expert witness.

Dr. LaRue has provided a substantial report reflecting his financial analysis and his views about the characterization of the various elements of the STARS transactions.[1] He has also submitted to an extensive deposition with respect to his analysis and conclusions[2] and prepared a "Declaration" in response to aspects of the Plaintiffs motion considered herein.[3] Plaintiffs motion is based upon several arguments. They include the contentions:

1. That Dr. LaRue has no authority for his view that the STARS arrangements provided an "effective rebate" of U.K. income taxes paid in effect by the Plaintiff for which foreign tax credits have been claimed.
2. That Dr. LaRue's approach is unreliable because it ignores various Internal Revenue Code ("Code") provisions, regulations and judicial interpretations regarding the availability of foreign tax credits.
3. That Dr. LaRue's testimony is unhelpful and is likely to confuse the jury.
4. That, because Dr. LaRue's conclusions are not soundly based upon identifiable methodology, they are ipse dixit and amount to "pure advocacy."

The Defendant responds that Dr. LaRue is a well-respected expert in financial analysis, accounting and taxation and that his conclusions derive from an independent analysis that is based upon his extensive experience with the issues that are at the heart of this portion of the case.

Jurisdiction to Hear this Motion

There is a question about the authority of the Special Master to hear and decide this motion. Article A(1)(a) of the Appointment Order of June 13, 2011, authorizes the Special Master to "hear any pretrial dispositive motion." Rule 7.1(c)(6)(D) of the Local Rules for the District of Minnesota includes in a list of ...


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