Beach Tv Properties Inc. v. Soloman

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE ATLANTA CHANNEL, INC., :
:
Plaintiff, : Civil Action No.: 15-1823 (RC)
:
v. : Re Document Nos.: 145, 150, 155
:
HENRY A. SOLOMON, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT HENRY A. SOLOMON’S MOTION TO
STRIKE; DENYING GARVEY DEFENDANTS’ AMENDED MOTION FOR RECONSIDERATION;
DENYING AS MOOT GARVEY DEFENDANTS’ MOTION FOR RECONSIDERATION
I. INTRODUCTION
In this long-running legal malpractice suit, the parties continue to dispute the
admissibility of Plaintiff’s evidence. Presently before the Court are two sets of motions
regarding the testimony of Plaintiff’s expert George W. Conk, whom Plaintiff ACI designated as
a specialist in legal ethics in support of its liability claims. This Court previously ruled on the
motion of Defendants Garvey Schubert and Melodie Virtue (“the Garvey Defendants”) to strike
Mr. Conk’s testimony, granting the motion in part and striking Mr. Conk’s opinions “to the
extent he equates the Garvey Defendants’ breach of their ethical duties with a breach of the
standard of care they owed ACI.” Atlanta Channel, Inc. v. Solomon (Beach TV VI), No. 15-cv-
1823, 2019 WL 4394837, at *5 (D.D.C. Sept. 13, 2019). 1 The Garvey Defendants now move for
reconsideration of the Court’s opinion in Beach TV VI, contending both that the Court
1
Because this case was originally captioned as Beach TV v. Solomon, the Court uses the
shortened citation Beach TV VI to promote consistency with its earlier opinions.
misconstrued portions of the record in rejecting the majority of their argument and directing the
Court’s attention to an intervening district court case in the Southern District of New York.
Separately, Defendant Henry Solomon has moved to strike Mr. Conk on a number of grounds,
including the same contention that his testimony contains inadmissible legal conclusions that the
Court addressed in Beach TV VI with respect to the Garvey Defendants. After reviewing both
parties’ arguments, the Court denies the Garvey Defendants’ motion for reconsideration and
grants in part and denies in part Defendant Solomon’s motion to strike.
II. BACKGROUND
In light of the lengthy history of this case and the Court’s summary of the factual
background in prior opinions, see, e.g., Beach TV Properties, Inc. v. Solomon (Beach TV IV), 324
F. Supp. 3d 115, 118 (D.D.C. 2018); Beach TV Properties, Inc. v. Solomon (Beach TV I), No. 15-
cv-1823, 2016 WL 6068806, at *1–4 (D.D.C. Oct. 14, 2016), the Court briefly discusses only the
facts most relevant to the pending motions.
This malpractice suit has its origins in late December 1999, when Mr. Solomon, an
attorney, submitted a statement of eligibility for a Class A license to the Federal
Communications Commission (“FCC”) on behalf of his client at the time, the Atlanta Channel,
Inc. (“ACI”). See Beach TV VI, 2019 WL 4394837 at *1 (citing Beach TV IV, 324 F. Supp. 3d at
118). Because several portions of the form that Mr. Solomon submitted were incomplete, the
FCC dismissed the statement of eligibility. See id. ACI alleges that the omissions on the
statement of eligibility left it unable to apply for a valuable Class A license that, on Plaintiff’s
account, a station that it owned would have otherwise received (along with the pecuniary
benefits associated with this valuable broadcast spectrum space). See id. Attempts to appeal to
2
the FCC and, later, to the D.C. Circuit for review of the initial denial over the course of nearly 15
years proved unavailing. See id.
After the D.C. Circuit upheld the FCC’s denial of ACI’s statement of eligibility, Plaintiff
filed suit for legal malpractice in this Court on October 26, 2015. See id. (citing Compl., ECF
No. 1). ACI amended the complaint in February 2016 to include claims against, inter alia,
Defendants Solomon and the law firm Garvey Schubert Barer. See id. (citing First Am. Compl.
¶¶ 122–37, ECF No. 21). This Court subsequently dismissed all claims apart from one claim
against Defendant Solomon. See Beach TV I, 2016 WL 6068806, at *1. Discovery on the claim
between ACI and Defendant Solomon commenced in late 2016 and concluded with respect to
liability issues in early 2018. See Beach TV VI, 2019 WL 4394837 at *1 (citing Joint Status
Report 2, ECF No. 85).
In parallel, ACI pursued additional claims against Ms. Virtue and Garvey Schubert Barer,
filing a second amended complaint in June 2017. See id. (citing Second Am. Compl., ECF No.
69). This second amended complaint alleges that Ms. Virtue committed malpractice after she
took over the FCC license matter from Mr. Solomon in 2012 and that her employer, Garvey
Schubert Barer, is liable for her malpractice. See id. (citing Second Am. Compl. ¶¶ 59–60, 80–
84, 87). Discovery on this set of claims proceeded on a different timeline, with submission of
ACI’s expert reports with respect to liability due by late January 2019. See id.A flurry of activity in this case ensued in early fall of 2019. First, on August 5, 2019,
Defendant Solomon moved to strike Mr. Conk’s opinions concerning him in their entirety,
arguing that this testimony consists of inadmissible legal conclusions, discusses events that do
not pertain to the sole remaining count against him, includes unnecessary and unhelpful points
and was, in part, filed after the close of discovery. Def. Solomon’s Mot. to Strike (“Solomon
3
Mot.”), ECF No. 145. On September 13, 2019, the Court resolved a separate motion by the
Garvey Defendants to strike Mr. Conk as an expert witness. See generally Beach TV VI, 2019
WL 4394837. In Beach TV VI, this Court rejected the majority of the Garvey Defendants’
arguments yet granted the motion to strike in part, agreeing that Mr. Conk’s opinions should be
stricken to the extent that they equated the Garvey Defendants’ breach of ethical duties with a
breach of the standard of care owed to ACI. 2019 WL 4394837, at *5 (permitting Mr. Conk “to
testify to the ethical duties applicable to the Garvey Defendants, and the breach thereof, only to
the extent he explains how those ethical responsibilities framed his determination of what the
applicable standard of care was for an attorney in the Garvey Defendants’ circumstances”).
Thereafter, the Garvey Defendants moved the Court to reconsider its opinion, contending that the
Court “patently misunderstood” their argument concerning the applicable standard of care.
Mem. P. & A. in Supp. of Garvey Defs.’ Mot. Recons. 7–8, ECF No. 150-1. Ten days later, the
Garvey Defendants filed an amended motion for reconsideration, reiterating the same points and
directing the Court to a recently-decided case in the Southern District of New York. Garvey
Defs.’ Am. Mot. Recons. (“Garvey Mot.”) 2, ECF No. 155. For the forthcoming reasons, the
Court is unpersuaded by the Garvey Defendants’ motion, which amounts to little more than a
warmed-over version of the same arguments the Court already rejected in Beach TV VI, 2019
WL 4394837. But the Court is convinced by certain arguments that Defendant Solomon makes
in his motion to strike, and thus grants in part and denies in part that motion.
III. ANALYSIS
The arguments presented by Defendant Solomon in his motion to strike rely in part on the
same points that the Garvey Defendants raised in the motion to strike that this Court resolved in
Beach TV VI. See Solomon Mot. 3 (citing Mem. P. & A. in Supp. of the Mot. of the Garvey
4
Defs. to Strike George Conk (“Garvey Defs.’ Mot. Strike”) 6–17, ECF No. 120-1) (adopting and
incorporating by reference Garvey Defendants’ contentions that Mr. Conk “merely states”
inadmissible legal conclusions). As the Court just mentioned, Beach TV VI, which was decided
after Defendant Solomon filed his motion to strike, but before he filed his reply brief, addressed
the arguments made by the Garvey Defendants that Defendant Solomon incorporated by
reference in the motion to strike presently pending before the Court. Because the Garvey
Defendants argue that the Court should revisit its Beach TV VI conclusions, the Court begins
with the Garvey Defendants’ motion for reconsideration and then considers Defendant
Solomon’s motion to strike.
A. The Garvey Defendants’ Motion for Reconsideration
The Garvey Defendants present two arguments in support of their motion for
reconsideration. Their primary assertion is that the Court “appeared to have misundestrood their
contentions with respect to Mr. Conk’s lack of familiarity with the applicable standard of care.”
Mem. P. & A. in Supp. of Garvey Mot. (“Garvey Mem.”) 1, ECF No. 155-1. More specifically,
the Garvey Defendants charge that the Court erroneously concluded that the Garvey Defendants
invoked a narrow standard of care based on “the exact same situation,” id. at 5–6, when they in
fact relied on a standard of care “based on ‘similar circumstances’” in their initial motion to
strike, id. at 2, 5. Because they assert that “this mistaken premise was determinative” in the
Court’s denial of their motion to strike Mr. Conk as an expert witness, the Garvey Defendants
maintain that the Court’s misunderstanding demands reconsideration of its holdings in Beach TV
VI. Id. at 11. In further support of this argument, the Garvey Defendants invoke Joffe v. King &
Spaulding LLP, 17-cv-3392, 2019 WL 4673554 (S.D.N.Y. Sept. 24, 2019). Citing Joffe, the
Garvey Defendants assert that the Court was too lenient in permitting Mr. Conk to refer to the
5
Rules of Professional Conduct (“RPC”) as evidence of the standard of care, id. at 8, when in fact
his opinions should be inadmissible in this legal malpractice suit because they rest on his
interpretation of ethical rules and are not “grounded . . . on knowledge of actual conduct by other
lawyers,” id. at 9; see id. at 8–11. The Court will briefly summarize the applicable legal
standards before assessing the merits of the Garvey Defendants’ arguments.
Federal Rule of Civil Procedure 54(b) governs a situation, like the one at hand, wherein a
party petitions the court to reconsider an interlocutory order. Robinson v. District of Columbia,
296 F. Supp. 3d 189, 192 (D.D.C. 2018) (discussing Rule 54(b)); see Fed. R. Civ. P. 54(b)
(“[A]ny order or other decision . . . that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the claims and all
the parties' rights and liabilities.”). A court applying Rule 54 has authority to reconsider an
interlocutory decision “as justice requires.” U.S. ex rel. Westrick v. Second Chance Body Armor,
Inc. (Westrick), 893 F. Supp. 2d 258, 268 (D.D.C. 2012) (quoting Capitol Sprinkler Inspection,
Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011). Under this “as justice requires”
standard, “reconsideration may be warranted,” inter alia, “where the court has ‘patently
misunderstood the parties . . . or [where] a controlling or significant change in the law has
occurred.’” Id. (second alteration in original) (quoting Arias v. DynCorp, 856 F. Supp. 2d 46, 52
(D.D.C. 2012). “These considerations leave a great deal of room for the court’s discretion and,
accordingly, th[is] . . . standard amounts to determining ‘whether [relief upon] reconsideration is
necessary under the relevant circumstances.’” Lewis v. District of Columbia, 736 F.Supp.2d 98,
102 (D.D.C. 2010) (first alteration in original) (quoting Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004)).
6
That said, the deciding court’s discretion pursuant to Rule 54(b) is not open-ended; to the
contrary, it is “limited by the law of the case doctrine and subject to the caveat that where
litigants have once battled for the court’s decision, they should neither be required, nor without
good reason permitted, to battle for it again.” Robinson, 296 F. Supp. 3d at 192 (quoting Singh v.
George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)). The party who moves for
reconsideration must show “that reconsideration is appropriate and that harm or injustice would
result if reconsideration were denied.” Westrick, 893 F. Supp. 2d at 268 (citing Husayn v. Gates,
588 F. Supp. 2d 7, 10 (D.D.C. 2008)).
In this case, the Garvey Defendants assert that reconsideration under Rule 54(b) is
appropriate for two reasons: because of the Court’s purported patent misunderstanding of its
argument and because Joffe, 2019 WL 4673554, represents an intervening change in the law.
Garvey Mem. 10–11. Neither argument is persuasive. For one, based on its review of the
record, the Court did not misunderstand the Garvey Defendants’ contentions concerning the
relevant standard of care. In their motion for reconsideration, the Garvey Defendants contend
that the Court misunderstood them because they previously meant to argue “that the applicable
standard of care is based on ‘similar circumstances,’” just as the Court explained in Beach TV VI,
2019 WL 4394837, at *6, yet “this Court mistakenly found that the Garvey Defendants were
relying on a more narrow standard of care” that “requir[ed] an expert’s familiarity with the
‘exact same circumstances.’” Garvey Mem. 1–2. The problem with this argument is that the
Garvey Defendants’ initial motion, construed in context, does in fact invoke a narrower standard
of care—as Plaintiff points out. See Pl.’s Opp’n to Garvey Mot. (“Pl.’s Opp’n”) 3–4, ECF No.
158 (citing Garvey Defs.’ Mot. Strike 14) (arguing that the Garvey Defendants presented a
“syllogism . . . [that] clearly argued for an ‘exact same circumstances’ standard”).
7
To understand how the original motion invoked a narrower standard in this way, the
Court next recounts the Garvey Defendants’ arguments that Mr. Conk lacked knowledge of the
applicable standard of care. The Garvey Defendants’ motion to strike, like their motion for
reconsideration, relies heavily on an exchange between their counsel and Mr. Conk. Therein,
Mr. Conk was asked whether he had “encountered any actual situations in which lawyers have
been involved in situations which are similar to those” facing the Garvey Defendants. Garvey
Defs.’ Mot. Strike 10 (internal citations omitted); Garvey Mem. 3 (emphasis omitted) (internal
citations omitted). When Mr. Conk attempted to clarify what was being asked, counsel
rephrased the question as “whether or not [Mr. Conk had] ever encountered, whether [he had]
been aware of, observed, participated in, actual situations that have taken place that are similar to
those that are alleged” with respect to the Garvey Defendants. Garvey Defs.’ Mot. Strike 10;
Garvey Mem. 3 (emphasis omitted) (internal citations omitted). Unsatisfied with the response,
counsel restated the question once again, stating, “I am not asking you about cases in which you
have testified or offered an opinion. I am asking you about actual situations with actual lawyers
and actual clients that have involved situations similar” to those alleged against the Garvey
Defendants. Garvey Defs.’ Mot. Strike 10–11 (internal citations omitted); Garvey Mem.. 3–4
(emphasis omitted) (internal citations omitted). When Mr. Conk responded, over the repeated
objections of Plaintiff’s counsel concerning the ambiguous nature of the word “similar,” that he
“really [couldn’t] answer that question” and didn’t “know what [counsel] mean[t] by actual
lawyers and actual cases,” counsel for the Garvey Defendants clarified that he meant “actual
involvement, your ability to have observed things either as a practicing lawyer or otherwise.”
Garvey Defs.’ Mot. Strike 11 (internal citations omitted); Garvey Mem. 4 (emphasis omitted)
(internal citations omitted). This exchange ended with Mr. Conk’s statement that he understood
8
the Garvey Defendants’ counsel to be asking him whether he had “ever seen any other situation
like this,” and his indication that he had not, because “[i]t’s really a pretty unique circumstance.”
Garvey Defs.’ Mot. Strike 11 (emphasis omitted) (internal citations omitted), Garvey Mem. 4
(emphasis omitted) (internal citations omitted).
Read in context, these statements suggest to the Court that the Garvey Defendants did in
fact rely on a narrower standard of care than merely familiarity with and knowledge of “similar
circumstances.” The Garvey Defendants dispute this point, claiming that they merely contend
that Mr. Conk cannot establish familiarity with a standard of care based on “similar
circumstances” because he lacks “knowledge of actual practices by other lawyers,” Garvey
Mem. 2 (citing Joffe, 29–35), in the context of “similar” legal malpractice cases, id. The flaw in
this argument is that, if the situation is “unique” in the way Mr. Conk suggests, there would be
no way for any expert to establish the requisite familiarity if satisfying a “similar circumstances”
standard of care requires “actual involvement” with “actual clients” in a similar situation. Put
differently, read in context, the Court finds that Mr. Conk’s statement that he had not “ever seen
any other situation like this,” id. at 4, does not mean that he has never encountered similar
circumstances. If the question is whether the situations that he did encounter are sufficiently
similar, then the Court finds compelling ACI’s argument that the Garvey Defendants had “ample
opportunity to ask Conk during his deposition about his actual experience with conflicts of
interest, informed consent[,] and statute of limitations to determine whether and to what extent
his actual hands-on experience comports with his opinions.” Pl.’s Opp’n 7. They declined to do
so, instead relying on a different, narrower understanding that requires familiarity with “actual”
circumstances that are similar to the charges implicating the Garvey Defendants.
9
In short, despite the Garvey Defendants’ representations to the contrary, what they argued
in their motion to strike was that only direct experience with a sufficiently parallel situation—
which was not possible here because of the uniqueness of the facts presented—could qualify an
expert to testify. This is precisely the conclusion that the Court reached in Beach TV VI.
Nothing about the Garvey Defendants’ resubmission of the same testimony with the word
“similar” emphasized in bold, see Garvey Mem. 3–4, convinces the Court that the present motion
for reconsideration is anything other than an attempt to relitigate arguments that this Court
already found unavailing. See Beach TV VI, 2019 WL 4394837, at *6 (noting that the Garvey
Defendants provide no case law “supporting the notion that an expert’s knowledge of the
standard of care must be this narrowly tailored in order for his opinion to be admissible.”).
As further support for this conclusion, it bears mention that the Garvey Defendants’
motion for reconsideration excludes any discussion of other reasons for the Court’s Beach TV VI
conclusion that they were arguing for a narrower standard of care. As the Court noted in Beach
TV VI, the Garvey Defendants’ original motion to strike also emphasized Mr. Conk’s statement
that he didn’t “know what an average FCC lawyer is,” and so could not say whether such an
individual would be aware of the continuing representation doctrine. Garvey Defs.’ Mot. Strike
12 (emphasis omitted). The Garvey Defendants presented this statement as further evidence that
Mr. Conk was unqualified “to opine on how an ordinarily competent FCC lawyer would have
acted.” Id. But just as the Court previously held, because “ACI’s argument for liability is based
on the failure to make a disclosure in response to a conflict of interest—a situation that can arise
in all areas of practice—the Court is not convinced that knowledge of how a ‘competent FCC
lawyer’ would act is required” to qualify Mr. Conk to testify. Beach TV VI, 2019 WL 4394837,
at *6. At no point in their motion for reconsideration do the Garvey Defendants address this
10
additional ground for the Court’s conclusion that they were relying on too cribbed a notion of
knowledge of “similar circumstances.” The upshot is simple: nothing in the present motion
convinces the Court that its Beach TV VI determinations were clearly erroneous in a way that
merits reconsideration pursuant to Rule 54(b).
The Garvey Defendants’ appeal to Joffe is equally unpersuasive. At the outset, the Court
is puzzled why a single out-of-circuit, nonbinding opinion qualifies as “a controlling or
significant change in the law,” Westrick, 893 F. Supp. 2d at 268 (citation omitted), that merits
reconsideration under Rule 54(b)’s standard. The Garvey Defendants assert that the opinion
should be persuasive to this Court because the Joffe court rejected an expert report that “relied
mainly on [the expert’s] interpretation of the Rules of Professional Conduct.” Garvey Mem. 8.
In making this argument, the Garvey Defendants highlight this Court’s statement in Beach TV VI
that “courts are divided as to whether . . . ethical duties [of attorneys] can constitute evidence of
the standard of care” that attorneys owe to clients, “and whether expert witnesses should be able
to refer to ethical rules when testifying to the standard of care.” 2019 WL 4394837, at *4. The
Garvey Defendants’ argument is not as clear as they may think it is, yet what they seem to be
suggesting is that, given this division of opinions, the case at hand is one in which Joffe supports
the conclusion that Mr. Conk improperly referenced ethical rules as the basis for his testimony.
This argument fails because it requires ignoring the Court’s other statements in Beach TV
VI concerning the controlling legal standard. Therein, this Court followed its observation
concerning the split of authority in some courts with a statement of the operative rule in this
jurisdiction: “the District of Columbia considers ethical rules applicable to D.C. attorneys to be
relevant to determining the appropriate standard of care in a legal malpractice case.” 2019 WL
4394837, at *5 (citing Waldman v. Levine, 544 A.2d 683, 691 (D.C. 1988); Williams v.
11
Mordkofsky, 901 F.2d 158, 163 (D.C. Cir. 1990)). In other words, “[t]he D.C. Court of Appeals
and the D.C. Circuit have made clear that while a lawyer’s ethical responsibilities, and breach
thereof, can be used as evidence in a legal malpractice action, violations of the D.C. Rules of
Professional Conduct ‘do[] not provide for a direct malpractice action.’” Id. (quoting Williams,
901 F.2d at 163). Applying this rule, this Court granted the Garvey Defendants’ motion to strike
portions of Mr. Conk’s testimony that seemed to invoke ethical rules to draw legal conclusions
concerning malpractice, rather than merely discussing the rules in the context of “explain[ing]
how those ethical responsibilities framed his determination of what the applicable standard of
care was for an attorney in the Garvey Defendants' circumstances.” Id. Curiously, the Garvey
Defendants’ motion for reconsideration never so much as mentions this controlling precedent or
the Court’s application of it, nor do they provide any “reason why the Court should jettison its
reliance on Waldman and Williams . . . and embrace Joffe.” Pl.’s Opp’n 8. The instant motion
thus attempts to dress up a non-binding opinion that is contrary to governing law as a significant
change in law. The Court sees through this disguise: the Garvey Defendants cannot, without so
much as a line of argument as to why the cited precedent should persuade the Court to abandon
settled, controlling law, invoke Joffe to try to “reargue facts and theories upon which [the] court
has already ruled.” 2 Robinson, 296 F. Supp. 3d at 192 (D.D.C. 2018) (citing Bailey v. U.S.
Marshal Serv., No. 08-cv-0283, 2009 WL 973197, at *2 (D.D.C. Apr. 2, 2009)).
2
Though the Court rests its conclusions on the application of the Rule 54(b) legal
standard in the manner discussed above, it is worth also mentioning that Joffe is distinguishable
on its facts. As Plaintiff notes, the Garvey Defendants gloss over the factual distinctions
between Joffe, an action for alleged retaliatory termination that involved expert testimony
concerning an attorney’s reporting obligations to his employer, see 2019 WL 4673554 at *1–2,
*14–16, and this case, which involves the duty that an attorney owes to his client. See Pl.’s
Opp’n 8 n.6 (“Joffe is readily distinguishable because it does not involve an attorney’s duty to
the client.”). Particularly because the Garvey Defendants urge the Court to take a closer look at
the cause of action in assessing Mr. Conk’s opinion testimony and to “consider the distinction
12
Accordingly, because the Court finds both of the grounds on which the Garvey
Defendants seek reconsideration to be without merit, the Garvey Defendants’ motion is denied. 3
B. Defendant Solomon’s Motion to Strike
With its Beach TV VI holding undisturbed, the Court next considers Defendant
Solomon’s separate motion to strike Mr. Conk’s expert testimony as it pertains to his own
liability. Defendant Solomon makes several points in support of his motion. First, relying on the
same arguments that the Garvey Defendants raised in their own motion, Defendant Solomon
contends that Mr. Conk’s testimony should be stricken because it merely states inadmissible
legal conclusions and does not adequately discuss the applicable standard of care. Solomon Mot.
1. Second, he asserts that most of the testimony is irrelevant as applied to him because it centers
on his retirement and does not relate to the allegedly actionable conduct that occurred in
December 1999. Id. Third, he maintains that Mr. Conk’s discussion of his professional liability
insurance is inadmissible under Federal Rule of Evidence 411. Id. at 1–2. And finally, he argues
that Mr. Conk’s May 1, 2019, submission should be stricken as untimely because it was served
well past the final deadline for Plaintiff’s expert disclosures on liability issues as they pertain to
between allegations of a lawyer’s breach of fiduciary duties and cases of legal malpractice
alleging negligence,” Garvey Mem. 9, the Court looks askance at their own reliance on
persuasive authority that involves an entirely different application of the ethical rules. And to the
extent that the Garvey Defendants seek to invoke Joffe solely for the proposition that an expert’s
testimony must do more than merely interpret the relevant ethical standard, see Joffe, 2019 WL
4673554, at *17, this Court already ruled in the Garvey Defendants’ favor on this point by
holding that Mr. Conk’s testimony should be admitted only to “extent he explains how those
ethical responsibilities framed his determination of what the applicable standard of care was for
an attorney in the Garvey Defendants’ circumstances.” Beach TV VI, 2019 WL 4394837, at *5.
3
Because, for the reasons the Court just discussed, the Garvey Defendants have failed to
show that reconsideration is appropriate based on this Court’s misunderstanding of their
arguments or an intervening change in the law, the Court does not address whether the Garvey
Defendants carried their additional burden to establish “that harm or injustice would result if
reconsideration were denied.” Westrick, 893 F. Supp. 2d at 268 (internal citation omitted).
13
him. Id. at 2. For the reasons set forth below, the Court finds Defendant Solomon’s arguments
persuasive insofar as they overlap with its Beach TV VI conclusions, agrees with him in part
concerning Mr. Conk’s testimony regarding his retirement, and concurs regarding the
untimeliness of the May 2019 submission. However, because the Court is not convinced by his
other arguments, it grants in part and denies in part his motion to strike. The Court considers
Defendant Solomon’s contentions in turn.
1. Mr. Conk’s Discussion of Ethical Rules
As a general rule, experts may not opine on legal issues. See Beach TV VI, 2019 WL
4394837, at *4. As this Court explained in Beach TV VI, Federal Rule of Evidence 702 permits
an expert to “testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.” Id. (quoting Fed. R. Evid. 702). Testimony that “consists of legal
conclusions . . . cannot properly assist of a trier of fact.” Convertino v. DOJ, 772 F. Supp. 2d 10,
12 (D.D.C. 2010) (quoting Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1211
(D.C. Cir. 1997)). Thus, expert testimony that does no more than provide legal conclusions is
inadmissible. Beach TV VI, 2019 WL4394837, at *4 (quoting Convertino, 772 F. Supp. 2d at
12). This rule ensures that expert testimony does not improperly intrude on the domain of the
Court. Convertino, 772 F. Supp. 2d at 12 (“[L]egal conclusions . . . intrude upon the duties of,
and effectively substitute for, the judgement of the trier of fact and the responsibility of the Court
to instruct the trier of fact on the law.” (internal quotation omitted)).
This Court has previously addressed in depth how legal malpractice suits complicate this
general rule. See Beach TV VI, 2019 WL 4394837, at *4–5. In Beach TV VI, the Court
explained that, in a legal malpractice suit that requires an expert witness, “the expert must clearly
14
articulate and reference a standard of care by which the defendant’s actions can be measured.”
Id. at *4 (internal quotation marks omitted) (quoting Robinson v. Wash. Metro. Area Transit
Auth., 774 F.3d 33, 39 (D.C. Cir. 2014); see also Varner v. District of Columbia, 891 A.2d 260,
269 (D.C. 2006). In the District of Columbia, an expert testifying in a legal malpractice suit may
consider the ethical rules that apply to D.C. attorneys as “a gauge by which to determine the
competency of the Bar.” Waldman, 544 A.2d at 691 (citation omitted). That said, the D.C. Code
of Professional Conduct may only be used to “determin[e] the standard of care required in a legal
malpractice case,” id., such that an alleged breach of that standard of care can be evidence in
such a case, Beach TV VI, 2019 WL 4394837, at *5 (quoting Williams, 901 F.2d at 163). An
expert may not present an ethical rule as “having the force and effect of a law” or indicate “that
deviations from it constitute[e] negligence per se.” Id. (quoting Miami Int’l Realty Co. v.
Paynter, 841 F.2d 348, 353 (10th Cir. 1988); see also Williams, 901 F.2d at 163 (noting that
ethical rules “do[] not provide for a direct private malpractice action” while indicating that
“violations of the [Model Code of Professional Responsibility] certainly constitute evidence in
an action at common law”).
In this case, for reasons substantially similar to its analysis in Beach TV VI, the Court
finds that much of Mr. Conk’s opinion testimony concerning Defendant Solomon improperly
invokes legal authorities. Mr. Conk’s testimony frequently appears to equate a breach of an
ethical duty with a breach of the standard of care that Defendant Solomon owed to ACI. See,
e.g., Report of George W. Conk (“Conk Report”) 5, ECF No. 145-2 (“Solomon had a duty to
inform The Atlanta Channel about any outstanding problems presenting a ‘significant risk’ to the
client[.]” (quoting RPC 1.7(a)(2)); id. at 6 (“Solomon was obligated to scrutinize the status of
matters within the scope of representation[.]” (citing RPC 1.2)); Rebuttal Report of George W.
15
Conk (“Conk Rebuttal Report”) ¶ 47, ECF No. 145-3 (asserting that “Solomon thereby breached
his duty to keep the client reasonably informed” by failing to comply with RPC 1.4(c)). This is
improper expert testimony. Accordingly, to the extent that Mr. Conk “conflate[s] the D.C. Code
of Professional Responsibility with the standard of care applicable to [Defendant Solomon],”
Beach TV VI, 2019 WL 4394837, at *5, his opinion is stricken. Mr. Conk may testify, however,
within the same bounds that the Court drew for the Garvey Defendants: he may speak to “the
ethical duties applicable to [Defendant Solomon], and the breach thereof,” but “only to the extent
he explains how those ethical responsibilities framed his determination of what the applicable
standard of care was for an attorney” in Defendant Solomon’s circumstances. 4 Id.4
As mentioned previously, Defendant Solomon’s opening brief, which was filed before
this Court’s Beach TV VI opinion, initially incorporated by reference the Garvey Defendants’
arguments contending that (1) “Mr. Conk’s proffered opinions are legal conclusions that are
inadmissible under D.C. law,” Garvey Defs.’ Mot. Strike 6–8; (2) “Mr. Conk is not familiar with
the applicable standard of care,” id. at 9–12; and (3) Mr. Conk “failed to review the pertinent
facts,” id. at 12–17. See Solomon Mot. 3. Defendant Solomon’s reply brief reiterates only the
first contention. See Def. Henry A. Solomon’s Reply in Further Supp. of Mot. to Strike the
Expert Opinions of George W. Conk (“Solomon Reply”) 3, ECF No. 154 (discussing Beach TV
VI, noting that “[t]he Court struck Conk’s testimony to the extent Conk equates the Garvey
Defendants’ breach of their ethical duties with a breach of the standard of care they owed ACI,”
and urging the Court to apply the “same ruling . . . to Conk’s testimony with regard to Solomon”
(internal citation omitted)).
For the foregoing reasons, the Court agrees that its Beach TV VI conclusions with respect
to Mr. Conk’s discussion of ethical duties apply with equal force to Defendant Solomon; thus, it
grants in part and denies in part Defendant Solomon’s motion to strike Mr. Conk’s expert
testimony on the grounds that it consists of inadmissible legal conclusions. In addition, for the
reasons that this Court rejected the Garvey Defendants’ original contentions that Mr. Conk is not
sufficiently familiar with the applicable standard of care, see Beach TV VI, 2019 WL 4394837, at
*6, and which the Court revisited above in the context of the Garvey Defendants’ motion for
reconsideration, the Court is unpersuaded by Defendant Solomon’s argument that Mr. Conk is
not qualified to speak to the relevant standard of care. Along similar lines, the Court finds the
third argument concerning Mr. Conk’s familiarity with the facts unavailing and extends its Beach
TV VI holding on this point to find that Mr. Conk “is sufficiently familiar with the facts of this
case to testify as to his expert opinion on the standard of care” applicable to Defendant Solomon.
See Beach TV VI, 2019 WL 4394837, at *6–7. Cross-examination at trial is the proper method
for Defendant Solomon to contest the credibility and/or reliability of Mr. Conk’s testimony. Id.
at *7.
16
2. Relationship between Mr. Conk’s Testimony and December 1999 Conduct
Defendant Solomon argues, additionally, that much of Mr. Conk’s testimony has no
bearing on the legal malpractice claim (Count One) against him. More specifically, he contends
that “the vast majority of the Conk opinions as against Defendant Solomon concern events that
occurred years after the filing of the Statement of Eligibility” and are “being offered on issues
concerning the application of the statute of limitations” that “do not relate to the standard of care
applicable to Defendant Solomon” or the breach thereof. Solomon Mot. 4. Defendant Solomon
maintains that these legal ethics opinions are not only irrelevant, but also, if admitted, will be
unfairly prejudicial to him and risk misleading the jury; accordingly, he urges the Court to
exclude Mr. Conk’s testimony pursuant to Federal Rules of Evidence 403 and 702. Id. at 5–6.
On Plaintiff’s account, this testimony is proper because it directly relates to Defendant
Solomon’s statute of limitations defense, which “put his ‘transition’ into issue.” Pl.’s Opp’n to
Solomon Mot. 5–6, ECF No. 149. In other words, Plaintiff asserts that this testimony speaks to
the “Disclosure Obligations” that Mr. Conk believes applied “when Solomon sought to turn over
responsibility for the FCC proceeding to Virtue,” id. at 4, and which “are relevant to the
reasonableness of Plaintiff’s belief that Solomon remained its attorney” after this point—a
question that is “dispositive of Solomon’s statute of limitations defense,” id. at 5. For the
following reasons, Defendant Solomon has the better argument.
The fundamental issue, as Defendant Solomon points out, is that this testimony does not
speak to the sole remaining count against him, which concerns his submission of the statement of
eligibility in 1999—not his retirement a decade later. Solomon Mot. 4. This count “alleg[es]
that Solomon ‘committed legal malpractice in the representation of ACI by failing to exercise
due and proper care in the preparation and filing of the ACI Statement [of eligibility to apply for
17
a Class A license].’” Id. (quoting Second Am. Compl. ¶¶ 73–75). ACI thus faces an uphill
battle from the start to establish why an expert’s opinions concerning the standard of care owed
by a retiring attorney in Mr. Solomon’s position are relevant to a cause of action involving
Defendant Solomon’s entirely separate actions in 1999. And the Court is not convinced by
Plaintiff’s attempts to connect the two by bringing in Defendant Solomon’s statute of limitations
defense.
Understanding why Plaintiff’s contentions fall flat requires briefly reviewing what this
Court has already concluded concerning Defendant Solomon’s retirement. In Beach TV Props.,
Inc. v. Solomon (Beach TV III), 306 F. Supp. 3d 70, 82–91 (D.D.C. 2018), the Court spoke to the
parties’ statute of limitations dispute. Therein, the Court found that “there was clearly no
meeting of the minds as to when Mr. Solomon’s representation of ACI ended,” id. at 87, and that
there were “sufficient questions of fact to preclude the Court from granting ACI or Mr. Solomon
summary judgment on the statute of limitations question” id. at 89. In addition, the Court
rejected ACI’s arguments that, assuming arguendo that Mr. Solomon’s representation ended
before the statute of limitations began to run, its claim against Defendant Solomon was not time-
barred. Id. at 89–91. The Court was, specifically, not persuaded by ACI’s assertions that Mr.
Solomon “lulled ACI into thinking that he still represented it, and fraudulently concealed that he
was no longer representing it.” Id. at 89. Finding the record to be “devoid of evidence that Mr.
Solomon took affirmative steps after late 2009 to maintain the appearance that he was still
representing ACI,” the Court concluded that the statute of limitations could not be tolled on the
basis of either lulling or fraudulent concealment. Id. at 91.
These Beach TV III conclusions highlight the problems with what Plaintiff now asserts
with respect to Mr. Conk’s testimony. Again, ACI appears to be drawing a connection between
18
the statute of limitations defense, which Defendant Solomon invokes, Mr. Conk’s testimony, and
what Mr. Colley believed at the time of Defendant Solomon’s retirement. But ACI never
convincingly establishes how, exactly, Mr. Conk’s opinions concerning any “Disclosure
Obligations” for an attorney in Mr. Solomon’s position in 2010, see Pl.’s Opp’n to Solomon
Mot. 4–5, are helpful to the jury in its determination of when Mr. Colley reasonably believed that
Mr. Solomon’s representation ended (the date on which the statute of limitations began to run).
Notably, in Beach TV III, this Court already rejected ACI’s lulling and fraudulent concealment
contentions. 306 F. Supp. 3d at 91. Thus, ACI cannot now invoke Mr. Conk’s testimony to
suggest that any alleged breach of the ethical duties of a lawyer upon retirement amounted to
“affirmative steps after late 2009 to maintain the appearance that [Mr. Solomon] was still
representing ACI.” Id.; see also Solomon Mot. 6 (noting Beach TV III conclusions on this
point).
Moreover, even putting to the side these prior conclusions, Plaintiff cannot seek an
inference from Defendant Solomon’s “silence in the face of a duty to speak” in the manner that
ACI asserts. Pl.’s Opp’n to Solomon Mot. 6. Plaintiff’s contentions involve the following
logical chain: because, as Mr. Conk will testify, (1) the rules of professional conduct (a) apply
during the transition of a matter from one attorney to another and (b) require a client’s “informed
consent to the transition,” and (2) “informed consent in this case means [Mr. Solomon] had the
affirmative duty to speak up,” (3) the jury can “infer” what Mr. Colley “reasonably believed”
about any continuing representation from Defendant “Solomon’s silence in the face of a duty to
speak.” Id. (internal quotation marks omitted). As Defendant Solomon notes, ACI provides no
legal authority for the proposition that it can ask the jury to infer what Mr. Colley reasonably
believed from Mr. Solomon’s silence. Solomon Reply 4 (citing Graham’s Handbook of Federal
19
Evidence for the principle that inferences from silence, if admissible, generally speak to the state
of mind of the silent party—not the other party); see Graham, Handbook of Federal Evidence §
801.21 (“If an oral or written statement is communicated by another person to a party in the
litigation containing assertions of fact which if untrue the party would under all the
circumstances naturally be expected to deny, his failure to speak is receivable against him as an
adoptive admission.”). Without any legal support for its argument, Plaintiff’s conclusory
statements concerning this inference fail to persuade the Court.
In addition, even assuming for the sake of argument that Plaintiff had cited case law on
point and that there exists some permissible link between Mr. Conk’s opinions about retirement
and the statute of limitations issue, there is no factual basis to admit Mr. Conk’s opinions. For
example, Mr. Colley does not present testimony that he was aware of Defendant Solomon’s duty
to speak and, thus, drew conclusions from his silence that Mr. Solomon still represented him.
As this Circuit has explained, a witness such as Mr. Conk “who is ‘relying solely or primarily on
experience . . . must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably applied to the
facts.’” Heller v. District of Columbia, 801 F.3d 264, 272 (D.C. Cir. 2015) (alteration in
original) (quoting Advisory Committee notes to Fed. R. Evid. 702); see also United States ex rel.
Morsell v. Symantec Corp., No. 12-cv-800, 2020 WL 1508904, at *13 (D.D.C. Mar. 30, 2020)
(same). Here, because the record does not include facts (testimony or otherwise) that indicate
what Mr. Colley knew about any ethical duties, or how Mr. Conk’s experience is “reliably
applied to the[se] facts,” Advisory Committee Notes to Fed. R. Evid. 702, there is no basis for
Plaintiff to draw the inference that it seeks from Mr. Conk’s opinions. Accordingly, Mr. Conk’s
opinions about any “silence in the face of a duty to speak” upon retirement, Pl.’s Opp’n to
20
Solomon Mot. 6, are not admissible. Such testimony is not helpful to the jury in assessing
whether Mr. Colley reasonably believed that Mr. Solomon still represented him after Mr.
Solomon’s retirement in 2010, which remains a disputed factual issue. 5
3. Admissibility of Mr. Conk’s References to Professional Malpractice Insurance
Next, Defendant Solomon moves to exclude Mr. Conk’s discussion of his professional
liability insurance. See Solomon Mot. 6–7. He contends that such evidence is generally
inadmissible under Federal Rule of Evidence 411, and that, because it will “clearly be offered to
establish negligence,” none of Rule 411’s stated exceptions apply and the admission of such
evidence “would be extremely prejudicial” to him. Id. at 6. ACI maintains that Mr. Conk’s
discussion falls squarely within Rule 411’s allowance of liability insurance evidence for a
purpose other than to show Defendant Solomon’s negligence. Pl.’s Opp’n to Solomon Mot. 7
5
In addition, Mr. Conk’s reliance on D.C. Bar Ethics Opinion 294 (2007) would risk
confusing the jury and is separately subject to exclusion under Federal Rule of Evidence 403.
Solomon Mot. 5 & n.3; see Edmonds v. United States, No. 05-cv-0540 , 2009 WL 969938, at *1
(D.D.C. Apr. 7, 2009) (“Expert testimony, like all other evidence, may be excluded under Rule
403 if it would confuse or mislead the trier of fact[.]”); Fed. R. Evid. 403. As Defendant
Solomon argues, see Solomon Mot. 5 & n.3, Ethics Opinion 294 is explicitly “limited to the sale
of an entire law practice to another lawyer upon the retirement of a lawyer,” D.C. Bar Op. 294
(Dec. 1999). Moreover, it was largely superseded in 2007 by D.C. Rule 1.17. See Ethics
Opinions Substantively Affected by the Amended Rules (Effective 2/1/07), D.C. Bar, Legal Ethics,
https://www.dcbar.org/bar-resources/legal-ethics/opinion-table.cfm (last visited Apr. 1, 2020)
(stating that Ethics Opinion 254 was “substantively affected” by 2007 amendments, and
explaining that D.C. Rule 1.17 along with Comment 10 “governs the sale of a law practice”).
Plaintiff does not rebut this point or present any reason that the cited ethics opinion addresses the
broader question of a retiring lawyer’s duties in arranging for a new lawyer’s assumption of
responsibility of a matter. Because the facts presented to the Court do not involve the sale of a
law practice, permitting Mr. Conk to rely on this ethics opinion as the basis for his testimony that
ACI did not give “informed consent” to “Solomon’s retirement and Virtue’s assumption of his
responsibilities,” see Conk Report 8; Conk Rebuttal Report ¶ 17, risks confusing the jury and is
thus subject to exclusion, see Fed. R. Evid. 403. Because it relates to the standard of care that an
attorney owes upon retirement, which is not relevant with respect to the 1999 allegations, this
testimony falls within the contours of what the Court has just found to be inadmissible expert
testimony; nonetheless, the Court notes these separate grounds for excluding these opinions.
21
(citing Fed. R. Evid. 411). 6 For the following reasons, the Court finds that portions of Mr.
Conk’s testimony on this point are admissible for another purpose, albeit only a very narrow one.
See Fed. R. Evid. 411.
Federal Rule of Evidence 411 bars the admission of evidence of liability insurance “to
prove whether the person acted negligently or otherwise wrongfully,” yet permits a court to
“admit this evidence for another purpose, such as proving a witness’s bias or prejudice or
proving agency, ownership, or control.” Fed. R. Evid. 411. The list of enumerated exceptions in
Rule 411 is illustrative, not exclusive, and courts have “held that evidence of liability insurance
coverage was admissible as bearing upon a relevant material issue other than agency,
employment, ownership, or control.” 40 A.L.R. Fed. 541. “In determining whether to admit or
exclude evidence about insurance that is offered for a purpose other than to prove a party acted
negligently, the district court must apply the principles of [Rule] 403 to determine whether the
probative value of the evidence is substantially outweighed by the danger of unfair
prejudice.” Pinkham v. Burgess, 933 F.2d 1066, 1072 (1st Cir. 1991) (citing 10 J. Moore & H.
Bendix, Moore’s Federal Practice § 411.04 (2d ed. 1988 & Supp. 1990–91)); see Fed. R. Evid.
403 (“The court may exclude relevant evidence if its probative value is substantially outweighed
by a danger of[, inter alia,] unfair prejudice[.]”).
Applying these principles, evidence of Defendant Solomon’s professional malpractice
insurance is potentially admissible if, as ACI maintains, it bears on a relevant material issue
other than establishing Defendant Solomon’s negligence or liability and its probative value is not
6
Plaintiff’s brief cites to the Federal Rules of Civil Procedure, not the Federal Rules of
Evidence. See Pl.’s Opp’n to Solomon Mot. 7. Because the quoted language appears in the
Federal Rules of Evidence and the surrounding discussion concerns these rules, the Court
assumes that Plaintiff intended to reference Federal Rule of Evidence 411.
22
substantially outweighed by a danger of unfair prejudice. Plaintiff argues that this testimony
bears on a relevant material issue because it is part of its case against Defendant Virtue—not
Defendant Solomon—insofar as Mr. Conk discusses Mr. Solomon’s insurance in order to opine
on Defendant Virtue’s “failure to disclose” the malpractice policy to ACI. Pl.’s Opp’n to
Solomon Mot. 7. In other words, ACI avers that these statements are part of Mr. Conk’s
admissible testimony “about the Virtue Obligations as evidence of the standard of care for the
Garvey Defendants.” Id.
Plaintiff’s arguments support the admissibility of this evidence for a narrow purpose. At
the outset, the Court cannot agree with Defendant Solomon that the evidence is outright barred
by Rule 411. Defendant Solomon maintains that, because “the standard of care is one of the
elements of a prima facie case of negligence,” “it is crystal clear that Conk’s testimony as to the
standard of care goes directly towards proving negligence”—in contravention of Rule 411.
Solomon Reply 5. Defendant Solomon thus asserts, in effect, that any discussion of insurance to
speak to a standard of care for the Garvey Defendants necessarily speaks to his own alleged
negligence, as a matter of law, simply because the standard of care is an element of a negligence
claim and the testifying expert is a liability expert. Id. But Defendant Solomon’s argument that
“the evidence will clearly be offered to establish negligence—since Mr. Conk is Plaintiff’s
liability expert,” Solomon Mot. 6, conflates the purpose for which the evidence is offered with
the separate question, previously discussed, of whether Mr. Conk’s testimony represents
inadmissible legal conclusions concerning liability. Nor does Defendant Solomon provide any
case law in support of his argument, which the Court finds especially problematic because his
assertions do not acknowledge the fundamental principle that the same evidence can be
admissible for one purpose but not for another. See Fed. R. Evid. 105 (discussing rules that
23
apply if a court “admits evidence that is admissible against a party or for a purpose—but not
against another party or for another purpose”).
Here, ACI does indicate a very narrow purpose for which this information might be
admissible, without impermissibly speaking to Defendant Solomon’s liability or negligence:
whether, in Mr. Conk’s opinion, Defendant Virtue had an ethical obligation “to tell Plaintiff that
Solomon’s malpractice carrier might pay for an independent attorney to assume responsibility
for” a possible appeal from the FCC’s denial of ACI’s petition, and how any such duty informs
Mr. Conk’s evaluation of the relevant standard of care. Pl.’s Opp’n to Solomon Mot. 7. Insofar
as discussion of Defendant Solomon’s insurance coverage is limited to a factual statement (i.e.,
the policy existed, and it covered X, Y, and Z appeal options), connected to Mr. Conk’s opinions
concerning Defendant Virtue’s ethical duties to speak with her client about its litigation options,
it is admissible. See, e.g., Pl.’s Opp’n to Solomon Mot., Ex. B, Oct. 14, 2014 Virtue Email, ECF
No. 149-1 (informing client, in October 2014, of “possible source of assistance with appellate
legal fees” for appeal to D.C. Circuit).
But Mr. Conk’s testimony on this point is not admissible for any other purpose. Most
significantly, as stated above, Rule 411 bars its admission to establish Defendant Solomon’s
liability. Thus, for instance, Mr. Conk may not opine that “Solomon should have disclosed the
existence of his policy of lawyer’s professional liability insurance” in discussing a possible
“malpractice claim against him and his former firm” with his client, ACI. Conk Rebuttal ¶ 33;
see also, e.g., id. ¶ 17 (“Solomon should have advised the Atlanta Channel of the possibility of
his and Haley Bader’s malpractice insurer assuming the costs of the efforts to cure the
consequences of Solomon’s negligence.”). Such opinions are not only barred by Rule 411 itself,
but also risk “confusing the issues,” Fed. R. Evid. 403, because there is no claim against
24
Defendant Solomon for conduct during his representation of ACI. As discussed above, the only
claim involves his alleged negligence for submission of the statement of eligibility in 1999. This
alone provides an ample basis to strike this testimony insofar as Mr. Conk opines on Defendant
Solomon’s conduct and/or the duties owed by a retiring lawyer.
In addition, even accounting for the importance of the statute of limitations defense with
respect to the count against Defendant Solomon, ACI does not establish why this particular
testimony is relevant with respect to the legal malpractice claim against Defendant Solomon. As
Defendant Solomon argues, “Conk’s expert legal opinions as to the duties of care and rules of
professional responsibility that Solomon allegedly breached upon his retirement are not
probative of whether or not the Plaintiff or its owners reasonably believed that Solomon
continued to represent the Plaintiff after his retirement in 2010.” Solomon Reply 3–4. The
Court finds this point persuasive. What the parties reasonably believed regarding when the
representation ended, as the Court discussed above, see supra Part III.B.2, is a question for the
trier of fact. This testimony is not relevant with respect to the charge against Defendant
Solomon because it does not have “any tendency to make a fact”—what Mr. Colley believed—
"more or less probable than it would be without the evidence.” Fed. R. Evid. 401. The upshot is
that, for all of the foregoing reasons, ACI may not offer Mr. Conk’s testimony concerning what
Defendant Solomon should have, in Mr. Conk’s opinion, disclosed about his insurance policy;
rather, this testimony may be offered only for the narrower purpose specified above with respect
to Defendant Virtue. And it is worth repeating, that Mr. Conk’s testimony concerning Defendant
Virtue must avoid conflating opinions about any breach of ethical duties with a breach of the
standard of care that Defendant Virtue owed to ACI.
25
In reaching this conclusion, the Court bears in mind that Defendant Solomon fails to
squarely address why Mr. Conk’s testimony about Defendant Solomon’s professional liability
insurance should be barred for the distinct, limited purpose specified above. 7 Instead, Defendant
Solomon relies on the conclusory assertion that any discussion or mention of this insurance
would be “extremely prejudicial” to him. Solomon Mot. 6. This bare assertion does not
convince the Court that the testimony should be stricken in its entirety. As Plaintiff notes,
because “[j]uries understand lawyers carry malpractice insurance,” Pl.’s Opp’n to Solomon Mot.
8, simply mentioning Defendant Solomon’s policy does not automatically compel the conclusion
that a jury “might as well decide for this plaintiff without respect to the law and facts,” Solomon
Mot. 6 (quoting 2 Weinstein’s Federal Evidence, § 411.02 [1] (Purpose of Rule)). Accordingly,
the Court does not find that the probative value of mentioning or discussing Defendant
Solomon’s liability insurance, in the limited context of considering Defendant Virtue’s
communications with her client, ACI, concerning the potential for an appeal from the adverse
FCC decision, is substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid.
403. With these points in mind, the Court is persuaded that allowing a very narrow reference to
the insurance accompanied by a limiting instruction—not a wholesale ruling of inadmissibility—
7
In a single sentence in his reply brief, Defendant Solomon indicates that any “opinions .
. . directed against the Garvey Defendants . . . affect Solomon as well because the Garvey
Defendants have a cross-claim for indemnification against Solomon.” Solomon Reply 6. Under
the established law of this Circuit, courts have “generally held that issues not raised until the reply
brief are waived.” Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000)
(quoting Board of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996)); see also
Walker v. Pharm. Research & Mfrs. of Am., 461 F. Supp. 2d 52, 58 n.9 (D.D.C. 2006) (citing In re
Asemani, 455 F.3d 296, 300 (D.C. Cir. 2006)). “This principle holds when a party does not argue a
point until its reply brief, even if the party referred to the argument in its opening brief.” Bloche v.
DOD, 414 F. Supp. 3d 6, 23 n.5 (D.D.C. 2019) (citing Sitka Sound Seafoods, 206 F.3d at 1181).
Here, by failing to mention the cross-claim for indemnification until his reply brief, Defendant
Solomon waived his argument about the possible connection between Mr. Conk’s opinions about the
Garvey Defendants and his own liability.
26
is an appropriate step to cure any possible prejudice, just as Plaintiff argues. Pl.’s Opp’n to
Solomon Mot. 8 (“Any prejudice that could result from a jury learning Solomon has a
malpractice policy can be ameliorated by the appropriate cautionary instruction.” (citing Morton
v. Zidell Explorations, Inc., 695 F.2d 347, 351 (9th Cir. 1982)).
Accordingly, Mr. Conk’s opinions concerning Defendant Solomon’s insurance are
admissible insofar as they are offered in the context of Defendant Virtue’s obligations to discuss
ACI’s potential appeal options with her client, and, therein, “only to the extent” that Mr. Conk
“explains how . . . [any cited] ethical responsibilities framed [Mr. Conk’s] determination of what
the applicable standard of care was for an attorney” in Defendant Virtue’s circumstances. Beach
TV VI, 2019 WL 4394837, at *5. They are inadmissible for any other purpose. 8 See Paxson v.
Davis, 65 F.2d 492, 495 (D.C. Cir. 1933) (admitting evidence of liability insurance for purpose
other than to prove liability); see also Eagle Suspensions, Inc. v. Hellmann Worldwide Logistics,
Inc., 571 F. App’x 281, 286 (5th Cir. 2014) (approving district court’s admission of evidence for
purpose other than to show negligence); Smith v. Summers, 334 F. Supp. 3d 339, 345 (D.D.C.
2018) (admitting evidence of insurance to establish contractual relationship between parties).
Defendant Solomon shall provide the Court with an appropriate limiting instruction at the time of
the pretrial submissions. See Fed. R. Evid. 105.
4. Timeliness of Final Conk Report
Finally, Defendant Solomon moves to strike the May 1, 2019 Conk Reply Report (“Conk
Reply”), ECF No. 145-4, as untimely with respect to Plaintiff’s liability claims against him.
Solomon Mot. 7. Noting that this Court’s scheduling order concerning ACI and Defendant
8
The Court notes, moreover, that some of the discussion to which Defendant Solomon
objects appears in the Conk Reply Report of May 1, 2019, see Solomon Mot. 7, which, as the
Court discusses next, is inadmissible as to Defendant Solomon because it was not timely filed.
27
Solomon stated that “rebuttal expert disclosures and reports related to liability shall be served by
April 28, 2017,” and that these two parties stated in an April 2018 joint status report that they
had “completed discovery regarding liability issues as to each other,” Defendant Solomon
argues that the May 2019 expert disclosure represents an untimely-filed further “expert report by
Mr. Conk concerning alleged breaches of duties by Defendant Solomon.” Id. (emphasis in
original) (first quoting Sched. Order, ECF No. 58, then quoting Joint Status Report (Apr. 13,
2018), ECF No. 85). Plaintiff presents no argument to rebut this contention directly, instead
asserting only that, because Mr. Conk’s opinions in the Conk Reply are “repetitive of his
opinions” in the two preceding reports, striking the testimony in the Conk Reply as to Defendant
Solomon is “pointless.” Pl.’s Opp’n to Solomon Mot. 7 n.10.
As this Court explained in Beach TV VI, “Federal Rule of Civil Procedure 26 requires
parties to disclose the identity [of] their expert witnesses, as well as [to] provide, for each expert,
an expert report containing ‘a complete statement of all opinions the witness will express and the
basis and reasons for them; the facts or data considered by the witness in forming them; [and]
any exhibits that will be used to summarize or support [the opinions].’” 2019 WL 4394837, at
*2 (third and fourth alterations in original) (first citing Fed. R. Civ. P. 26(a)(2)(A), then quoting
Fed. R. Civ. P. 26(a)(2)(B)). Rule 26(a)(2)(D) sets forth the additional requirement that a party
disclose such an expert report “at the times and in the sequence that the court orders.” Fed. R.
Civ. P. 26(a)(2)(D). Where a party fails to follow these prescriptions, Federal Rule of Civil
Procedure 37 bars that party from using that information, “unless the failure was substantially
justified or is harmless.” Beach TV VI, 2019 WL 4394837, at *2 (quoting Fed. R. Civ. P.
37(c)(1)). “The proponent of the evidence bears the burden of showing that the failure to
disclose the evidence was substantially justified or is harmless.” Id. (internal quotation marks
28
omitted) (quoting Moore v. Napolitano, 926 F. Supp. 2d 8, 25 n.12 (D.D.C. 2013)); see Fed. R.
Civ. P. 37(c).
In this case, the Conk Reply was filed in 2019, well past the scheduled close of discovery
concerning liability between ACI and Defendant Solomon in April 2017, and after the parties
stated in April 2018 that discovery on this matter had concluded. Federal Rule of Civil
Procedure 16(b)(4) provides that “[a] schedule may be modified only for good cause and with
the judge’s consent.” ACI never made any request to modify the controlling scheduling order.
On these facts, the Court agrees with Defendant Solomon that ACI’s submission of the Conk
Reply represents an untimely expert report insofar as the opinions presented therein speak to
Defendant Solomon’s alleged breaches of duty, which goes to the question of liability. Rule
37(c)(1) therefore bars ACI from using this information unless Plaintiff carries its burden to
show that the the failure to disclose the evidence in the manner required by Rule 26(a) was
substantially justified or is harmless.
ACI makes no such showing here. In propounding this evidence, Plaintiff provides only
one conclusory footnote that it would not matter if the Court were to strike this report because
the opinions contained in it are “repetitive” of opinions in other reports. Even granting Plaintiff
the benefit of the doubt and taking this statement to be ACI’s argument that the failure to
disclose the evidence is harmless, the Court is unconvinced that this footnote carries Plaintiff’s
burden to overcome Rule 37(c)’s prohibition on the use of information contained in an untimely-
filed expert report. See Beach TV VI, 2019 WL 4394837, at *2 (quoting Norden v. Samper, 544
F. Supp. 2d 43, 49 (D.D.C. 2008)). An example is illustrative. Consider Defendant Solomon’s
argument concerning professional liability insurance, wherein he points to distinct statements in
the Conk Rebuttal Report and the Conk Reply. See Solomon Mot. 7. Although the Court’s own
29
read of these statements indicates that they are, at a high level of generality, asserting the same
opinions, the specific manner in which Mr. Conk testifies and explains the basis for his
conclusions is distinct in the two documents. For instance, the Conk Reply discusses his
opinions against the background of Mr. Conk’s own experience during 27 years in which he
“managed [his] own law firm, during which time [he] not only handled [the firm’s] own
professional liability insurance applications but [also] represented parties regarding such claims”
and includes a citation to a typical insurance application. Conk Reply 8. The earlier Conk
Rebuttal Report makes no mention of Mr. Conk’s own experience in discussing why, in his
opinion, a duty was breached. Accordingly, although the opinion in the Conk Reply is, in a
sense, a different expression of the same opinion voiced in the Conk Rebuttal Report (namely,
the opinion that there was a breach of the standard of care that was due), the Court cannot say
that it is entirely “repetitive” of the earlier opinion in the manner that Plaintiff claims. Thus,
because ACI has developed no argument showing that either exception to a Rule 37(c)(1)
sanction applies, the Court strikes the testimony in the Conk Reply as to Defendant Solomon to
the extent that the Conk Rebuttal Report does not include the essentially same statement and
basis of opinion.
Summing up, then, the Court strikes portions of Mr. Conk’s expert opinion testimony to
the extent it (1) relies on legal authorities in a way that equates a breach of an ethical duty with a
breach of the standard of care that Defendant Solomon owed to ACI; (2) addresses Defendant
Solomon’s alleged duties, or the breach thereof, upon his retirement, to draw conclusions
concerning (a) Mr. Colley’s state of mind or (b) the running of the statute of limitations; (3)
references Defendant Solomon’s professional liability insurance for any purpose other than to
discuss Mr. Conk’s opinions concerning Defendant Virtue’s ethical duties to discuss potential
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avenues for appeal with her client, ACI; or (4) involves a statement of opinion and basis thereof
that appears only in the 2019 Conk Reply.
IV. CONCLUSION
For the foregoing reasons, the Garvey Defendants’ amended motion for reconsideration is
DENIED; the Garvey Defendants’ motion for reconsideration is DENIED AS MOOT; and
Defendant Solomon’s motion to strike is GRANTED IN PART and DENIED IN PART. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: April 27, 2020 RUDOLPH CONTRERAS
United States District Judge
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