Accounting Expert’s Financial Testimony on Mitigation Admitted
Posted on November 13, 2025 by Expert Witness Profiler
Plaintiffs sought to develop affordable housing in Brevard County. The Venue at Heritage Oaks Partners, Ltd. was the contract purchaser of the property. They, along with Atlantic Housing Partners L.L.L.P., intended to develop as “The Venue at Heritage Oaks,” a development comprised of multi-family dwelling units.
Canton Construction, LLC was to construct the development, and once completed, Concord Management, Ltd. was to manage it. The project did not come to fruition, however, because in December 2023, Defendant’s board of commissioners rejected Plaintiffs’ bond financing application.
Plaintiffs brought this action against Defendant for damages under the Fair Housing Act and the Florida Fair Housing Act, alleging that Defendant’s rejection discriminated against racial minorities.
Defendant affirmatively alleged that Plaintiffs must mitigate their damages and have failed to do so,” and as such, argues that “Plaintiffs’ claims should either be barred, or in the alternative, comparatively reduced in accordance with Plaintiffs’ failure to mitigate damages.
Defendant retained Patrick Kelleher as an expert to demonstrate that “Plaintiffs’ damages model does not consider mitigation and that reasonable possibilities likely existed with respect to mitigation.”
Plaintiffs filed a motion to exclude Kelleher’s opinions pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Accounting Expert Witness
Patrick F. Kelleher is a Certified Public Accountant (CPA) and Certified in Financial Forensics (CFF) with both a Bachelor of Science in accounting and a Master of Business Administration focused on finance, and he has more than twenty years of experience in forensic and investigative accounting. Kelleher submitted a twenty-page report that stated his opinions, included the documents he considered, and explained the analysis he performed, among other things.
Discussion by the Court
Kelleher opined that “Plaintiffs have not demonstrated any economic damages with reasonable certainty, but rather have provided a model that does not reflect the timing and accuracy of the cash flows associated with the housing] project.” Kelleher also identified alleged errors and deficiencies with Plaintiffs’ model and with testimony from two of Plaintiffs’ witnesses. With respect to his methodology, Kelleher reviewed Plaintiffs’ documents and used them to render accounting and financial testimony related to mitigation. In doing so, he used calculations and analysis in accordance with the American Institute of Certified Public Accountants (AICPA) Statement on Standards for Forensic Services. He also used AICPA prescribed methods for calculating damages.
Analysis
Plaintiffs stated, without citations to the record or supporting caselaw, that Kelleher’s opinion was unreliable as it was not based in accounting—Kelleher’s area of expertise—but is based on a qualitative analysis. Plaintiffs also asserted that Kelleher’s opinion cannot be tested and did not use a generally accepted methodology. However, Kelleher noted that he performed his analysis in accordance with AICPA standards and followed AICPA prescribed methods for calculating damages. Courts have consistently found that such methodologies are generally accepted and thus reliable.
Plaintiffs further challenged Kelleher’s opinions as unhelpful because they are “not beyond the understanding of the average lay person.” Plaintiffs also contended that Kelleher’s opinions offered just what Defendant’s attorney could argue in closing arguments. However, Kelleher’s testimony can assist the jury with financial and accounting principles.
Even if Kelleher’s opinion “boils down to at its essence,” something a layperson may understand, the purpose of an expert is to help simplify complex concepts, boiling them down—as Plaintiffs point out—so that laypersons can comprehend them.
Although Kelleher’s conclusions may be simple, the mathematical calculations leading to such conclusions are beyond the understanding of the average layperson, so his opinions would help the jury.
Kelleher can explain field-specific information that the average layperson does not know, including, but not limited to, the capital forces specific to Plaintiffs’ business model, the ownership structure of the entities at issue, and how these topics affect the ability to redeploy capital.
Given the “liberal standard for relevance to whether expert testimony will aid the jury in resolving the facts,” the Court declined to exclude Kelleher’s testimony under Daubert.
Held
The Court denied the Plaintiffs’ motion to exclude the opinions offered by Patrick Kelleher.
Key Takeaway:
If Plaintiffs wish to undermine Kelleher’s opinions, “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.”
Case Details:
| Case Caption: | Atlantic Housing Partners L.L.L.P. Et Al V. Brevard County |
| Docket Number: | 6:23cv2473 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | November 07, 2025 |
