Free Motion in Limine - District Court of Federal Claims - federal

Case 1:06-cv-00245-EJD

Document 43

Filed 03/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Nos. 06-245T, 06-246T, and 06-247T
(Consolidated)

MURFAM FARMS, LLC, By and Through Wendell H. Murphy, Jr., a Partner Other Than Tax Matters Partner,

PSM FARMS, LLC, By and Through Stratton K. Murphy, a Partner Other Than Tax Matters Partner, MURPHY PORK PARTNERS, LLC By and Through Wendell H. Murphy, Jr. a Partner Other Than Tax Matters Partner, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

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UNITED STATES' MOTION TO PARTIALLY EXCLUDE THE EXPERT REPORT AND TESTIMONY OF DON M. CHANCE The United States moves the Court to prohibit the following from being admitted into evidence: 1. That part of the report of Don M. Chance ("Chance") dated May 8, 2007, in which Chance gives his opinion on whether the probabilities of profit on the foreign exchange digital option spreads involved in this case are "reasonable:" and 2. Any testimony from Chance that gives his opinion on whether the probabilities of profit on the foreign exchange digital option spreads involved in this case are "reasonable."

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Case 1:06-cv-00245-EJD

Document 43

Filed 03/07/2008

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Chance's analysis in reaching his opinion that the probabilities of profit on the foreign exchange digital option strategies in this case are "reasonable" is not based on reliable principal and method and is meaningless in helping the trier of fact determine whether the probability of making a profit was "reasonable." Chances opinion provides no assistance in evaluating economic prospective of the strategy. His judgment about reasonableness is completely void of economic content. His report on reasonableness should be struck and any testimony excluded. Respectfully submitted,

/s/ Dennis M. Donohue DENNIS M. DONOHUE CHIEF SENIOR LITIGATION COUNSEL OFFICE OF CIVIL LITIGATION Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-6492 Facsimile: (202) 307-2504 E-mail: [email protected]

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Case 1:06-cv-00245-EJD

Document 43

Filed 03/07/2008

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CERTIFICATE OF CONFERENCE On March 7, 2008, I spoke to Todd Welty, an attorney for Petitioner and asked if Petitioner opposed the motion to partially exclude the testimony of Don M. Chance, in his opinion on whether or not the COBRA Transactions had a reasonable probability of profit. Mr. Welty stated the Petitioner opposed the motion. /s/ JOSEPH A. PITZINGER, III JOSEPH. A. PITZINGER Trial Attorney, Tax Division U.S. Department of Justice 717 North Harwood, Suite 400 Dallas, Texas 75214 Telephone: (214) 880-9728 Facsimile: (214) 880-9741 E-mail: [email protected] CERTIFICATE OF SERVICE I hereby certify that on March 7, 2008, I electronically filed the foregoing United States' Memorandum of Law in Support of its Motion to Partially Exclude the Expert Report and Testimony of Don Chance with the Clerk of the Court using the ECF system which will send notification of such filing to the following: Joel N. Crouch Texas State Bar No. 05144220 Meadows, Collier, Reed Cousins & Blau, L.L.P. 901 Main Street, Suite 3700 Dallas, Texas 75202

/s/ Dennis M. Donohue CHIEF SENIOR LITIGATION COUNSEL OFFICE OF CIVIL LITIGATION Trial Attorney, Tax Division U.S. Department of Justice P.O. Box 55, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-6492 Facsimile: (202) 307-2504 E-mail: [email protected]

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