Free Response to Motion - District Court of Arizona - Arizona

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G. Gregory Eagleburger, #002695 The Eagleburger Law Group 2999 N. 44th Street, Suite 303 Phoenix, Arizona 85018 (602)840-6533 Fax (602)808-9402 Attorney for Individual Defendants

IN THE UNITED STATES DISTRIC COURT DISTRICT OF ARIZONA

Awareness Corporation, Plaintiff, v. GROUP VISION INTERNATIONAL, L.L.C., a Michigan limited liability company; KELLY MATTICE and PAIGE MATTICE, husband and wife; KEVIN and CHERYL MACGREGOR, husband and wife dba THE LIFE TREE; LYNN and RENIE REMELSKI; and DAVID and SUZANNE BETTS, Defendants.
And related cross claims and third party actions.

Case No. CV03-2024-DGC INDIVIDUAL DEFENDANTS RESPONSE TO MOTION TO EXCLUDE OPINIONS OF JOHN J. GORMAN

Individual Defendants hereby respond to Awareness' Motion to Exclude Opinion of John J. Gorman. Although not designated as a Motion In Limine, such Motion apparently was intended as such by Awareness. The contentions as to factual scope and basis for the opinions of Mr. Gorman are wrong and intentionally misleading and the

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legal basis for exclusion non-existent.

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This Response is further supported by the following Memorandum of Points and Authorities and the entire Court record in this case. MEMORANDUM OF POINTS AND AUTHORITIES The opinions of Mr. Gorman have already been reviewed by this Court in reaching his decision on the various Motion for Summary Judgment. His opinions have been found to be supported by sufficient fact and his conclusions based upon reliable principles applying the facts. The basis for Mr. Gorman's opinions have been

subpoenaed and received by Awareness months ago.
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Awareness now claims that the opinion of Mr. Gorman does not (1) rest on a reliable foundation of sufficient facts or data; (2) be done in accordance with reliable principles and methods; and (3) be relevant to the issues. His report specifies the data used both for his opinion on Awareness' damages and on the Individual Defendants' damages (Pages 9, 15 & 16). Awareness has no evidence that the data used by Mr. Gorman was not reliable other than its own witnesses' opinions based upon no review of Mr. Gorman's data. There is no showing that the data is fictional or based upon the subjective opinion of another or is based upon unverified data. The report itself shows that the data was

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voluminous and based upon reliable sources from the individual's own accounting, tax and banking records and the financial summaries of Awareness. The quote from the report of Mr. Gorman contained at Page 3, Lines 8-13, relates to the damages asserted by the individuals other than the loss of profits from commissions, through non-payment or miscalculation of commission and from

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Awareness' direct sales data, and to lost profits from cancellation of Mattices radio shows. With regard to the Individual Defendants damages, Mr. Gorman did not attempt to quantify damages only from delays in shipping, improper sales tax charges, bonuses, defamation or interference. Mr. Gorman's opinions as to the reliable basis for Awareness' damages are based upon data given by Awareness. Apparently Awareness now believes its own data is unreliable.

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Awareness' sole contention is that Mr. Hall is right in his opinion based on his data and Mr. Gorman is wrong because he didn't use the same data or come up with the same opinion. These "dueling opinions" are common in trials and only the trier of fact can determine, after a full hearing, which facts and data more appropriately support which opinion. Awareness in this Motion, as it has in the past, assumes the role of judge and assumes its analysis must be followed. Awareness itself cannot even admit its own data, e.g.:

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1.

The gross margin of 35% is the gross profit guaranteed the distributors by

Awareness in commissions and bonuses; 2. 3. The overhead cost figure comes from tax returns of the individuals; Future lost profits of three years is certainly shorter than the seven years

assumed by Awareness' expert;

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4.

Unpaid commissions have been found by this court to exist at least for

earnings prior to termination. The amount of lost and unpaid commissions is within the ability of Awareness to produce but it says it can not. Now it complains because the individuals don't have the necessary data. Who is Awareness fooling? This Motion is even more confusing since Awareness has stipulated to the admissibility of Mr. Gorman's Report (Awareness Trial Exhibit 299). Rule 702 only requires that the expert be qualified; that the opinion is based upon sufficient facts or data to support the opinion; and that the opinion applies reliable

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principles and methods. Rule 703 declares that the data may be that perceived by or made known to the expert at or before trial. The facts and data need not be admissible for the opinion to be admitted. Mr. Gorman's opinion fulfills all the criteria for admission. Therefore, Awareness' Motion to Exclude the Opinion of Mr. Gorman should be denied. RESPECTFULLY SUBMITTED this 15th day of August, 2005. THE EAGLEBURGER LAW GROUP

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By: /s/ G. Gregory Eagleburger Attorney for Individual Defendants The ORIGINAL of the foregoing electronically filed with the Clerk of the Court this 15th day of August, 2005 and a COPY hand-delivered to: The Honorable David G. Campbell
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U. S. District Court of Arizona 401 West Washington Phoenix, Arizona 85003-2118 And a copy mailed to: Steven M. Weinberg, Esq. Greenberg Traurig, LLP 2375 E. Camelback Rd., Suite 700 Phoenix, AZ 85016 Attorneys for Plaintiff Curtis D. Drew, Esq. 2342 N. Pima Scottsdale, AZ 85257-2405 Attorney for Group Vision International, LLC /s/ Jill Robinson

Case 2:03-cv-02024-DGC

Document 379

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