CellMark brought several claims against Dinah Bowman, Göran Sohl, and
Fortex Americas, LLC (collectively the “Fortex Defendants”), as well as Rob Webster arising out of the unamicable end of Webster’s employment at CellMark in 2024.
Plaintiff CellMark, Inc. retained an expert, Jay Cunningham, to show that it
suffered various economic damages arising from its claims in this case.
Webster retained Joshua Shilts to rebut Cunningham’s opinions, and the Fortex Defendants retained Robert Kester for the same purpose.
CellMark filed a motion to exclude certain testimony from the Defendants’ rebuttal experts.
Accounting Expert Witnesses
Joshua James Shilts CPA,ASA, CFF/CGMA/ABV, CFE, has held roles with public accounting firms ranging in size from the “Big Four” to smaller regional and local firms, as well as large public organizations throughout Florida and New York.
Shilts has provided expert testimony in commercial and family matters involving business valuation, economic damages, fraud, and other disciplines related to economics and accounting issues.
Robert Breece Kester, CPA/ABV/CFF, specializes in the assessment of economic damages, business valuation, and accounting matters. He has provided consulting services related to businesses across a cross-section of industries, including but not limited to financial services, manufacturing, restaurants, retail, distribution, transportation, logistics, construction, professional services, and many other specialized industries.
Discussion by the Court
A. Shilts and Kester may not testify about any legal opinions.
CellMark argued that Shilts’ and Kester’s reports are littered with legal opinions and that they must be prohibited from testifying as to those points at trial.
Both Shilts’ report and Kester’s report contain conclusion sections that summarize their criticisms of Cunningham’s report.
The conclusion sections of the Defendants’ reports veer into the realm of legal opinion by calling Cunningham’s opinion speculative, unreliable, and unsupported by sufficient data. Thus, the Court granted CellMark’s motion to exclude testimony from Shilts and Kester that invaded the province of the Court by stating legal opinions and invaded the province of the jury by telling it how it should weigh the evidence.
B. Shilts and Kester may critique Cunningham’s reliance on assumptions regarding the exclusivity agreement, but they may not opine as to the ultimate truth of those assumptions.
Next, CellMark argued that Shilts and Kester may not testify about whether Cunningham correctly assumed for his damages model that CellMark would have renewed an exclusivity agreement.
Shilts and Kester both criticized Cunningham’s report for assuming that CellMark would have renewed its exclusivity agreement with Asia Pulp and Paper but for Webster’s failure to renew the agreement.
While Shilts and Kester may critique Cunningham’s assumptions regarding the exclusivity agreement, they must avoid testifying about whether the agreement should have been renewed or whether it would have been renewed but for Webster’s conduct.
Accordingly, the Court denied CellMark’s motion to the extent it mischaracterized the Defendants’ reports.
But the Court granted the motion to the extent Shilts and Kester intended to testify that the evidence showed that the exclusivity agreement would not have been renewed in any event and to the extent they intended to testify that Cunningham’s opinions are not based on truthful or objective evidence.
C. Similarly, Shilts may critique Cunningham’s reliance on assumptions about continued business with Duro-Last, but he may not opine as to the ultimate truth of those assumptions.
Shilts’ report said that his “understanding is that Duro-Last wanted to consolidate suppliers” and that this could have reduced CellMark’s lost profits attributable to Duro-Last.
Shilts made it clear that his testimony as a rebuttal expert will criticize Cunningham’s opinion on damages— nothing more.
But the same concerns for the exclusivity agreement issue apply here. Shilts’ testimony must not state whether it is true that Duro-Last allegedly wished to consolidate suppliers or that Cunningham’s opinions are not supported by truthful or objective evidence.
Accordingly, the Court denied CellMark’s motion to the extent it mischaracterized Shilts’ report. Shilts may critique the assumptions that Cunningham relied upon regarding the volume of business that CellMark would have continued to receive from Duro-Last. But the Court granted the motion to the extent Shilts intended to testify that the evidence showed that Duro-Last desired to consolidate suppliers and therefore would not have continued to place orders with CellMark.
D. Shilts and Kester may testify about CellMark’s damages, including by providing quantified examples of how they believe Cunningham’s calculations overstate the potential damages.
CellMark said that the Defendants’ experts should not be allowed to testify to the total amount of damages that CellMark suffered or what the damages period should be because it would be testimony on an undisclosed opinion and would mislead the jury and confuse the issues.
Shilts and Kester did not provide a single, quantified total of CellMark’s damages in their reports, unlike Cunningham.
Instead, their reports took a piecemeal approach to separately criticize various aspects of Cunningham’s model, and they pointed out instances where they believe Cunningham’s calculations have overstated the potential damages by a specific, quantified amount.
Expert testimony by Shilts and Kester about CellMark’s damages clearly falls within the scope of rebuttal. The Defendants’ expert disclosures were properly made, and testimony consistent with their reports would help the jury understand any perceived problems with Cunningham’s opinions on damages. The lack of a total damages calculation is not a good reason to preemptively exclude such testimony when it was within the experts’ purview to use a piecemeal approach instead.
The Court recognized that there is a potential for the jury to be confused by the ways in which Shilts and Kester might provide discrete quantified examples of how they believe Cunningham’s calculations overstate CellMark’s prospective damages. If properly explained, those quantified examples can be helpful to the jury in evaluating Cunningham’s opinions and calculations.
E. Shilts may testify about the decline in the distilled spirits industry.
Lastly, CellMark argued that Shilts may not testify about a decline in the
distilled spirits industry to rebut Cunningham’s damages calculations.
According to CellMark, Shilts’ testimony would unreasonably rely upon an online news article for which Shilts does not know the identity of the author. The news article summarized a variety of surveys and reports about alcohol consumption by Americans to suggest that it is on the decline.
Whether news articles or reports are a reliable basis for an opinion depends on the context and the kind of expertise at issue.
It is widely believed that the alcohol industry is on the decline in the United States generally, and Shilts offered testimony on this point to lay out a factor that he believed Cunningham should have considered.
The Court is satisfied that the article contains the kinds of facts and data that business experts would rely upon, but Cellmark is free during trial to challenge Shilts about his knowledge of the article’s author and publisher.
For now, the Court concludes that Shilts should be allowed to testify about the decline in the alcohol industry and the impact he believes that has on Cunningham’s opinions.
Held
The Court granted in part and denied in part CellMark’s motion to exclude certain opinions of Robert Kester and Joshua Shilts.
Key Takeaway
A rebuttal expert’s role is to contradict or rebut evidence on the same subject matter identified by another party’s expert disclosure. They have no burden to produce models or methods of their own; they need only attack those of the opposing experts.
Case Details:
| Case Caption: | Cellmark, Inc. V. Webster |
| Docket Number: | 2:24cv181 |
| Court Name: | United States District Court, Kentucky Eastern |
| Order Date: | May 26, 2026 |
Leave a Reply