The Plaintiffs had purchased timeshares at the Westgate Smoky Mountain Resort. They alleged that the Defendants, comprising various entities linked to the resort, operated a high-pressure sales scheme. According to the Plaintiffs, this scheme persuaded prospective buyers to invest in the vacation timeshare program without properly disclosing critical and legally mandated information.
In June 2020, Defendants disclosed Howard Nusbaum as an expert. Nusbaum provided an overview of timeshare history and its industry. He then set forth his disagreements with Plaintiffs’ expert, Mr. Kenneth Christopher Free.
Plaintiffs filed a motion to exclude certain opinions of Mr. Howard Nusbaum.
Hotel And Hospitality Expert Witness
Howard C. Nusbaum was the president and chief executive officer (“CEO”) of American Resort Development Association (“ARDA”) from 2000 to 2019.
For the past thirty-seven years, he has held leadership positions in hotels and resorts with the last twenty years focused solely on timeshare standards, education, and communications with the goal of sharing these best practices.
Discussion by the Court
Nusbaum’s Opinions Regarding Defendants’ Sales Practices
According to Plaintiffs, “Nusbaum opined that ‘Free’s assertions that somehow [Defendants] did not adequately or clearly disclose information about the use plan and booking availability is truly perplexing and is just plain wrong.’”
Plaintiffs argued that Nusbaum’s opinion was not grounded in sufficient facts and relied on three unsupported bases. First, they claimed that Nusbaum relied on Defendants’ Public Offering Statement (“POS”) and made “a legal argument masquerading as an expert opinion.” Second, they argued that Nusbaum relied on Defendants’ experience, which they considered irrelevant. Finally, they asserted that Nusbaum based his opinion on his belief that Defendants had sufficient inventory.
The Court had already excluded Free’s testimony regarding inadequate disclosures, finding it unhelpful to the jury. In light of that ruling, Plaintiffs’ challenge to Nusbaum’s critique of Free’s opinions appeared moot. To the extent Defendants sought to rely on Nusbaum’s opinions, the Court found them unhelpful for the same reasons it had excluded Free’s.
Although Defendants argued that “Nusbaum opines that the disclosures in the POS ‘meet industry standards’,” Nusbaum, like Free, failed to explain the specific industry standards he referenced.
Accordingly, to the extent Plaintiffs’ challenge was not moot, the Court concluded that Nusbaum’s opinions regarding Defendants’ sales practices were not helpful and should be excluded.
Nusbaum’s Opinions about Corporate Structure
Plaintiffs stated that, “Nusbaum’s opinion that Defendants’ use of multiple company entities is ‘legal’ is obviously, a legal conclusion, and thus, inadmissible.” In addition, Plaintiffs submitted that “Nusbaum’s opinion is not based on any information or data about the specific interrelationships between the various [Defendant] entities that are Defendants in this case.”
The Court agreed that Nusbaum’s discussion of Defendants’ structure is not reliable. Nusbaum stated that he did not “read any financial documents showing the interrelationship of the various Defendant entities in connection with the Resort.” And his expert report reflected that he “did not review any documents regarding the relationships between the various Defendant entities.”
Nusbaum’s Opinions about Free’s Experience
According to Plaintiffs, “Nusbaum takes particular issue with the background and qualifications of Plaintiffs’ expert Kenneth Free.” But Plaintiffs stated that “Nusbaum . . . had no first-hand knowledge of Free’s role in the founding of Hilton Grand Vacations Company (HGV), which predated Nusbaum’s entry into the industry by nearly a decade.”
Upon review, the Court held that Nusbaum’s statements appeared to be factual testimony as opposed to expert testimony. Even if Nusbaum’s statements could be considered expert testimony, Plaintiffs did not challenge any methods of collecting the information for his commemorative publications; instead, they challenged that Nusbaum did not review certain records or talk to certain individuals. These challenges go to the weight of Nusbaum’s statements.
Plaintiffs also argued that “Nusbaum has no first-hand knowledge of Free’s role.” But Nusbaum’s statement flows from his “two-decade experience” in the timeshare industry and his role in collecting information for the commemorative book. If Plaintiffs believe that Nusbaum’s statements are speculative or constitute hearsay, they may object to them at a later date.
Held
The Court granted in part and denied in part the Plaintiffs’ motion to exclude certain opinions of Howard Nusbaum.
Key Takeaways:
- It is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.
- Claiming that an industry standard exists is not the same as discussing that standard.
Case Details:
| Case Caption: | Moore Et Al V. Westgate Resorts Ltd., L.P. |
| Docket Number: | 3:18cv410 |
| Court Name: | United States District Court, Tennessee Eastern |
| Order Date: | June 27, 2025 |
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