Accounting Expert Allowed to Opine on Monetary Damages

In the wake of a failed multi-million-dollar construction project, Plaintiff UMB Bank, N.A. ("UMB") brought several civil claims under the Racketeer Influenced and Corrupt Organization Act ("RICO") and Kansas state law against numerous Defendants. UMB retained Vince Cummings as an expert witness to calculate the total damages UMB alleges it is entitled to.

Defendants sought to exclude Cummings' opinions and testimony under Rule 702 of the Federal Rules of Evidence.

Accounting Expert Witness

Paul Vincent Cummings is a Certified Public Accountant and a Master Analyst in Financial Forensics. He has over 30 years of investigative and accounting experience.

Want to know more about the challenges Vince Cummings has faced? Get the full details with our Challenge Study report.

Discussion by the Court

After assuming Defendants' liability and reviewing relevant documents from the Bonds, Indentures, and other associated accounts, Cummings reached various sums and calculated UMB's damages in the overarching formula that follows:

Analysis

Defendants did not attack Cummings’ general qualifications or the reliability of his opinions. Rather, Defendants asserted that Cummings’ testimony is unhelpful to the jury and may be unduly relied upon if permitted.

Cummings’ opinions are unhelpful because he employed basic math from readily attainable numbers

First, Defendants argued that Cummings’ opinions are unhelpful because he employed basic math from readily attainable numbers that the jury can perform on its own. It is true that Cummings’ overarching formula involves simple addition, subtraction, and multiplication. And Cummings reached several numbers in his formula by taking them directly out of relevant documents, including the number of Applicable Bonds Proceeds, Estate Fund Balances, and Litigation Costs. But Cummings employed a more advanced method to determine the Delinquent Bonds Interest and Principal Redemption by using the specified interest rates and scheduled interest payments from each Indenture, cross-referencing those figures with account statements to identify paid interest from unpaid interest, all while accounting for a September 2023 principal redemption distribution in the TGT Bond to avoid double counting. That is well beyond the abilities of those with only a grade-school education, particularly since Cummings navigated numerous documents associated with the Bonds to calculate and identify the sums underlying his overarching formula.

Cummings’ opinions are unhelpful because the underlying numbers and methods he utilizes are not disputed

Second, Defendants argued that Cummings’ opinions are unhelpful because the underlying numbers and methods he utilizes are not disputed. As already discussed, however, the method Cummings employed to determine the Delinquent Bonds Interest and Principal Redemption is outside the realm of common experience, even if the method he utilized in doing so is not in dispute. Similarly outside the realm of common experience is identifying which numbers are relevant to calculating damages concerning Bonds, Indentures, and associated accounts, even if the numbers themselves are undisputed. Cummings’ testimony will help the jury distinguish between relevant numbers and irrelevant ones that appear in this document-intensive case. Thus, the Court concluded that Cummings' testimony will help the jury navigate the well-established complexity that is this case to determine appropriate damages, if applicable.

The jury may give Cummings’ testimony undue weight

Finally, Defendants argued that the jury may give Cummings’ testimony undue weight, particularly because he worked as an FBI special agent from 1991–1994. Although not explicitly invoked, Defendants’ argument delves into Rule 403 territory concerning potential prejudicial effects of testimony.

The Court is unpersuaded that such an extraordinary remedy is necessary here. Concerns over the influence of Cummings’ three-to-four-year career at the FBI from over 30 years ago on the jury—if any arise—may be sufficiently addressed on cross-examination and through limiting arguments.

Held

The Court denied Defendants' motion to exclude the testimony of Vincent Cummings.

Key Takeaway

Excluding otherwise admissible evidence under Rule 403, including expert testimony, is an extraordinary remedy and should be used sparingly.

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