IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SALT AND LIGHT ENERGY §

EQUIPMENT, LLC, §

§

Plaintiff/Counter-Defendant, § Civil Action No.: 3:22-cv-00654-N

§

v. §

§

ORIGIN BANCORP, INC., DBA §

ORIGIN BANK, §

§

Defendant/Counter-Plaintiff, §

§

v. §

§1036

DENISE MUDIGERE and §

SHAWN MUDIGERE, §

§

Third-Party Defendants. §

ORIGIN BANK’S BRIEF IN SUPPORT OF ITS

MOTION TO EXCLUDE EXPERT TESTIMONY OF JASON KOONTZ

SBAITI & COMPANY PLLC

Mazin A. Sbaiti

Brad J. Robinson

Griffin S. Rubin

Dallas Arts Tower

2200 Ross Ave., Suite 4900W

Dallas, Texas 75201

T: (214) 432-2899

F: (214) 853-4367

mas@sbaitilaw.com

bjr@sbaitilaw.com

gsr@sbaitilaw.com

Attorneys for Defendant Origin Bank

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TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................................................................. i

TABLE OF AUTHORITIES........................................................................................................ ii

I. INTRODUCTION ............................................................................................................1

II. LEGAL STANDARD .......................................................................................................1

III. FACTUAL BACKGROUND ...........................................................................................2

IV.. ARGUMENTS AND AUTHORITIES.............................................................................3

A. Koontz’s Opinions Are Facially Irrelevant to This Case ......................................3

B. Koontz’s Opinions Are Unreliable Under Rule 702 .............................................5

1. Koontz’s Testimony Is Not the Product of Reliable

Principles and Methods.............................................................................5

2. Koontz’s Testimony Is Not Based on the Relevant Facts or 

Data ...........................................................................................................7

3. Koontz’s Reliance on the Parties” Course of Performance

Dooms His Opinions...............................................................................10

4. Koontz’s “Poll” Infected His Opinions with Legal Error.......................11

IV. CONCLUSION...............................................................................................................16

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TABLE OF AUTHORITIES

Albert v. Warner-Lambert Co., 

 234 F. Supp. 2d 101 (D. Mass. 2002) ....................................................................................15

Bakri v. Nautilus Ins. Co.,

 No. 3:21-CV-2001, 2023 U.S. Dist. LEXIS 20141 (N.D. Tex. Feb. 7, 2023) .........................2

Boyd v. State Farm Ins., 

 158 F.3d 326 (5th Cir. 1998) ............................................................................................... 6-7

C. A. May Marine Supply Co. v. Brunswick Corp., 

 649 F.2d 1049(5th Cir. 1981).................................................................................................13

Carlson v. Bioremedi Therapeutic Sys.,

 822 F.3d 194 (5th Cir. 2016).....................................................................................................2

Chemical Bank v. PIC Motors Corp., 

 452 N.Y.S.2d 41(N.Y. App. Div. 1982)............................................................................11, 12

Crawford Supply Grp., Inc. v. Bank of Am., N.A., 

 No. 09-cv-2513, 2011 U.S. Dist. LEXIS 117670 (N.D. Ill. Oct. 12, 2011).............................7

Daubert v. Merrell Dow Pharm., Inc., 

 509 U.S. 579 (1993)...........................................................................................................4, 13

E. Montgomery County Mun. Util. Dist. No. 1 v. Roman Forest Consol. Mun Util. Dist., 

 620 S.W.2d 110 (Tex. 1981) ..................................................................................................10

Exxon Corp. v. Tex. Motor Exch., 

 628 F.2d 500 (5th Cir. 1980)..................................................................................................13

Fed. Deposit Ins. Corp. v. Ft. Worth Aviation, 

 806 F.2d 575 (5th Cir. 1986)....................................................................................................4

Gen. Elec. v. Joiner, 

 522 U.S. 136 (1997).................................................................................................................7

Guillory v. Domtar Indus., Inc., 

 95 F.3d 1320 (5th Cir. 1996)....................................................................................................9

Haven v. Dickerson, 

 No. 4:09-cv-00647, 2011 U.S. Dist. LEXIS 173642 (S.D. Tex. July 13, 2011)......................6

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Hildreth v. Merle Norman Cosmetics, Inc., 

 No. 08-02-00402-CV, 2004 Tex. App. LEXIS 3082 (Tex. App.—El Paso 2004) .................12

Johnson & Johnson v. Smithkline Beecham Corp., 

 960 F.2d 294 (2d Cir. 1992)............................................................................................. 13-14

Knight v. Kirby Inland Marine, Inc.,

 482 F.3d 347 (5th Cir. 2007)................................................................................................. 7-8

Kumho Tire Co. v. Carmichael, 

 526 U.S. 137 (1999).................................................................................................................2

Matosky v. Manning, 

 428 Fed. App’x. 293 (5th Cir. 2011).........................................................................................6

Minasian v. Standard Chtd. Bank, P.L.C., 

 109 F.3d 1212 (7th Cir. 1997)..................................................................................................7

Nat’l Union Fire Ins. Co. v. Wells Fargo Bank, N.A., 

 No. 03-cv-2452, 2005 U.S. Dist. LEXIS 47175 (C.D. Cal. Mar. 16, 2005)..........................15

Pipitone v. Biomatrix, Inc., 

 288 F.3d 239 (5th Cir. 2002)....................................................................................................5

Puga v. RCX Sols., Inc., 

 922 F.3d 285 (5th Cir. 2019)....................................................................................................4

Reinsdorf v. Skechers U.S.A., 

 922 F. Supp. 2d 866 (C.D. Cal. 2013)....................................................................................15

Roman v. Western Mfg., 

 691 F.3d 686 (5th Cir. 2012)....................................................................................................4

Scott Fetzer Co. v. House of Vacuums, Inc., 

 381 F.3d 477 (5th Cir. 2004)............................................................................................14, 15

Shields Limited P'ship v. Bradberry, 

 526 S.W.3d 471 (Tex. 2017) ..................................................................................................11

Stahl Petroleum Co. v. Phillips Petroleum Co., 

 550 S.W.2d 360 (Tex. App.—Amarillo 1977) ................................................................ 10-11

Storer Cable Commc’ns v. City of Montgomery, 

 806 F. Supp. 1518 (M.D. Ala. 1992)........................................................................................4

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Swann v. Charlotte-Mecklenburg Bd. of Educ., 

 318 F. Supp. 786 (W.D.N.C. 1970)..........................................................................................4

TitleMax of Tex., Inc. v. City of Dallas, 

 No. 3:21-cv-1040, 2023 U.S. Dist. LEXIS 126700 (N.D. Tex. July 24, 2023)...................7, 9

United States v. Arthur,

 51 F.4th 560 (5th Cir. 2022).......................................................................................................2

United States v. Frazier, 

 387 F.3d 1244 (11th Cir. 2004)..........................................................................................9. 10

United States v. Tucker, 

 345 F.3d 320 (5th Cir. 2003)....................................................................................................5

Venetian Blind & Floor Covering, Ltd. v. Well Fargo Bank, N.A., 

 No. 08-cv-2451, 2010 U.S. Dist. LEXIS 8434 (S.D. Tex. Feb. 2, 2010) ................................5

Viterbo v. Dow Chem. Co., 

 826 F.2d 420 (5th Cir. 1987)....................................................................................................7

Watkins v. Telsmith, Inc.,

 121 F.3d 984 (5th Cir. 1997)....................................................................................... 2, 5-6, 15

Wells Fargo Bank, N.A. v. Bivona & Cohen, P.C., 

 No. 12-cv-5212, 2015 U.S. Dist. LEXIS 133468 (S.D.N.Y. Sept. 30, 2015)..........................4

Williams v. Illinois, 

 567 U.S. 50 (2012)...................................................................................................................1

Rules

FED. R. EVID. 602..........................................................................................................................9

FED. R. EVID. 702................................................................................................................ passim

FED. R. EVID. 702(a) ......................................................................................................... 1, 2, 3-4

FED. R. EVID. 702(b)............................................................................................................. 7-8, 0

FED. R. EVID. 702(c) ....................................................................................................................5,

Statutes

TEX. BUS. & COM. CODE § 2.208(a) ...............................................................................................

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TEX. BUS. & COM. CODE § 9-607(c) .............................................................................................5

Other Authorities

Shari Seidman Diamond, Fed. Jud. Ctr., Reference Guide on Survey Research, in Reference

Manual on Scientific Evidence 369 (3d ed. 2011)......................................................................13

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I.

INTRODUCTION

This Court should strike Plaintiff Salt & Light Energy Equipment, LLC (“SNLEE”)’s 

proposed banking expert, Jason Koontz (“Koontz”). The central thesis of SNLEE’s lawsuit is that 

Defendant Origin Bancorp, Inc. d/b/a Origin Bank (“Origin”) caused ProPetro Services Inc. 

(“ProPetro”) to terminate its relationship with SNLEE by sending a notice letter of Origin’s right 

to receive payment from ProPetro in place of SNLEE (the “Letter”). Koontz admits that his thesis 

is only that Origin’s timing in sending the Letter to ProPetro was commercially unreasonable. But 

he also admits that he has no evidence that Origin’s allegedly unreasonable timing is what caused 

ProPetro to terminate SNLEE. In other words, his opinion on commercial reasonableness is 

completely irrelevant. And after conceding that he has not opined on what “commercial 

reasonableness” even means, he proceeds to offer various conclusions about what is or is not 

commercially reasonable. This is conclusory advocacy plain and simple. Piling on top of that are 

his naked assertions that his “training, experience, and education” confirm the accuracy of his 

opinions and his informal survey he conducted, which fails every known standard for proper 

survey research. There is nothing here.

II.

LEGAL STANDARD

The Federal Rules of Evidence permit expert testimony when the offering expert displays 

“genuine ‘scientific, technical, or other specialized knowledge that will help the trier of fact to 

understand the evidence or to determine a fact in issue.’” Williams v. Illinois, 567 U.S. 50, 80

(2012) (brackets omitted) (quoting FED. R. EVID. 702(a)). 

“A qualified expert may testify if the expert’s specialized knowledge will aid the trier of 

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fact and ‘(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product 

of reliable principles and methods, and (3) the witness has applied the principles and methods 

reliably to the facts of the case.’” Bakri v. Nautilus Ins., No. 3:21-cv-2001, 2023 U.S. Dist. LEXIS 

20141, at *3–4 (N.D. Tex. Feb. 7, 2023) (Godbey, C.J.) (quoting FED. R. EVID. 702(a)). It is 

incumbent upon district courts to assess “whether the reasoning or methodology underlying 

[expert] testimony is scientifically valid and of whether that reasoning or methodology properly 

can be applied to the facts in issue.’” Carlson v. Bioremedi Therapeutic Sys., 822 F.3d 194, 199 

(5th Cir. 2016) (citation omitted).

The proponent of the expert testimony bears the burden to satisfy Rule 702 by a 

preponderance of the evidence. United States v. Arthur, 51 F.4th 560, 571 (5th Cir. 2022). In 

deciding a motion to exclude an expert, courts must ensure that the expert “employs . . . the same 

level of intellectual rigor that characterizes the practice of an expert in the relevant field,” Kumho 

Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Stated otherwise, courts are charged to act as 

gatekeepers of expert testimony “to evaluat[e] whether [an] expert is a hired gun or a person whose 

opinion in the courtroom will withstand the same scrutiny that it would among his professional 

peers.” Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997). 

III.

FACTUAL BACKGROUND

For the sake of brevity and preservation of litigant and judicial resources, Origin 

respectfully incorporates the factual background from its pending brief in support of its motion for 

summary judgment filed concurrently herewith.

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IV.

ARGUMENTS AND AUTHORITIES

A. KOONTZ’S OPINIONS ARE FACIALLY IRRELEVANT TO THIS CASE

Koontz’s opinion is that Origin’s timing was commercially unreasonable because Origin 

“waited” until August 2021, supposedly right when SNLEE was about to close with Amerisource,

to send its letter.1 Koontz believes, however, that had Origin sent exactly the same letter and had

exactly the same discussions with ProPetro five months earlier—say, in March or April 2021 (right 

after SNLEE defaulted)—then that would have been commercially reasonable.2

Koontz has no opinion on whether the Letter or even its timing is what caused ProPetro to 

terminate SNLEE.3 SNLEE likewise has no evidence that had Origin sent exactly the same letter 

and had exactly the same discussions with ProPetro in March or April 2021, ProPetro would not 

still have terminated.4 And it is established fact that Origin’s actions had no impact on the collateral 

(because ProPetro paid 100% of its AR) and did not cost SNLEE its deal with Amerisource—

which not only closed, but closed only because Origin later made some concessions as to its lien.

Therefore, because neither Koontz nor any evidence establishes a causal relationship 

between the allegedly commercially unreasonable timing and ProPetro’s termination of SNLEE, 

Koontz’s opinion is simply irrelevant. 

To survive scrutiny under Rule 702, Koontz’s opinions “must help the trier of fact to 

1 Origin believes that SNLEE’s and Koontz’s entire thesis lacks any substantiated evidentiary predicate, 

but accepts it arguendo to make this point.

2 Exhibit 2 to Robinson Declaration, Deposition Excerpts of Jason Koontz (“Koontz Tr.”) at 87:12-18

(APP_049); 88:25-89:22 (APP_049-050). 

3 Koontz Tr. at 92:20-25 (APP_052) (“Your report does not provide any opinions on whether Origin 

sending the notice letters when it did caused ProPetro to terminate its relationship with Salt & Light, does 

it? A At this time, I have not been asked to provide an opinion regarding that.”).

4 See Exhibit 3 to Robinson Decl., Deposition Excerpts of Lisa McCauley (“McCauley Tr.”) at 64:1-65:6

(APP_063-064).

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understand the evidence or to determine a fact in issue.” FED. R. EVID. 702(a). Helping the trier of 

fact in this context requires Koontz’s “evidence [to] possess validity when applied to the pertinent 

factual inquiry,” which is “[p]rincipally . . . a matter of relevance.” Roman v. Western Mfg., 691 

F.3d 686, 694 (5th Cir. 2012) (citation and internal quotation marks omitted); see Puga v. RCX 

Sols., Inc., 922 F.3d 285, 293–94 (5th Cir. 2019) (“Assisting the trier of fact means ‘the trial judge 

ought to insist that a proffered expert bring to the jury more than the lawyers can offer in 

argument.’” (citation omitted)). “Expert testimony which does not relate to any issue in the case is 

not relevant and, ergo, non-helpful.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 

(1993) (citation and internal quotation marks omitted). 

But by its very nature, “reasonableness” involves judging an act or omission with respect 

to its intended or likely impact. See, e.g., Storer Cable Commc’ns v. City of Montgomery, 806 F. 

Supp. 1518, 1549 (M.D. Ala. 1992) (“[T]he company contends that its means exceed what is 

‘reasonable’ to achieve the law’s stated purpose.”). As an example, when determining whether a 

means of desegregating schools was reasonable, the analysis concerned whether the available 

methods were designed to or had a likelihood of “accomplish[ing] the end in view”—i.e., 

“desegregation of the schools.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 318 F. Supp. 786, 

799 (W.D.N.C. 1970).

Thus, nothing of Koontz’s reasonableness analysis pertains to § 9.607(c)’s aim, which is to 

protect the value of collateral encumbered by a security agreement. See Fed. Deposit Ins. Corp. v. 

Ft. Worth Aviation, 806 F.2d 575, 577 (5th Cir. 1986) (declaring the purpose of § 9-607(c)’s 

predecessor section); see also Wells Fargo Bank, N.A. v. Bivona & Cohen, P.C., No. 12-cv-5212, 

2015 U.S. Dist. LEXIS 133468, at *41 (S.D.N.Y. Sept. 30, 2015). 

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Koontz’s musings about “a variety of possible negative consequences”5for SNLEE “that 

could [have] happen[ed] in the universe of possibilities”6are impertinent given that he had no 

evidence that any of those outcomes materialized.

7 The “collateral” Origin pursued was the 

accounts receivable ProPetro owed SNLEE—100% of which was paid off by ProPetro.8

Therefore, the type of injury Texas Business and Commerce Code § 9.607(c) aims to 

prevent is nonexistent here. And “in the face of direct evidence” showing the absence of this sort 

of injury, Koontz’s opinions are “not helpful to the trier of fact” and should be excluded. See United 

States v. Tucker, 345 F.3d 320, 332 (5th Cir. 2003).

B. KOONTZ’S OPINIONS ARE UNRELIABLE UNDER RULE 702

1. Koontz’s Testimony Is Not the Product of Reliable Principles and Methods

Rule 702(c) requires Koontz’s testimony to be “the product of reliable principles and 

methods.” Because no such principles and methods, let alone reliable ones, are anywhere to be 

found in his testimony, Koontz should be precluded from serving as an expert.

Because the subject matter of Koontz’s testimony is not scientific in nature, the Daubert

factors are not that helpful, see Venetian Blind & Floor Covering, Ltd. v. Well Fargo Bank, N.A., 

No. 08-cv-2451, 2010 U.S. Dist. LEXIS 8434, at *1 (S.D. Tex. Feb. 2, 2010)—nevertheless, 

Koontz’s opinions must be sufficiently reliable as to “withstand the same scrutiny that it would 

5 See Exhibit 1 to Robinson Decl. (Koontz Expert Report (“Report”) at 12 (APP_014) (emphasis added).

6 Koontz Tr. at 75:11-13 (APP_044 ). Though spending nearly a full page of his report discussing these 

possible negative consequences, Koontz simultaneously protests that SNLEE did not request for him “to 

provide any opinions regarding the negative consequences that may have occurred to SNLEE and their 

financial impact.” Report at 12 n.22 (APP_014). Because this aspect of Koontz’s evidence is thus “perfectly 

equivocal,” it “does not make any fact more or less probable” and should be excluded as irrelevant. Pipitone 

v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002).

7 Koontz Tr. at 75:10-13 (APP_044).

8 McCauley Tr. at 40:15-20 (APP_061) (“Q. Do you know what the AR was in August of 2021 that was 

due to Salt and Light by ProPetro? A. I do not. Q. Do you know whether all of that AR was paid in full by 

ProPetro? A. Yes, it was.”) and id. at 59:6-9 (APP_062 ).

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among his professional peers” in a court of law. Watkins, 121 F.3d at 991. But they do not.

To start, Koontz admitted that the conclusion he provides on commercial reasonableness 

hinges on an unarticulated, undefined conception of commercial reasonableness. Despite Koontz 

offering opinions in his report regarding commercial reasonableness, Koontz admitted to not 

defining and delineating a standard for “commercial reasonableness,” “commercial reasonableness 

as it relates to sending notice letters to account debtors,” or “commercial reasonableness as it 

relates to the collection of secured collateral.”9 That is a fatal admission. Koontz’s lack of any 

underlying standard allows him to claim commercial unreasonableness whenever he wants to, 

untethered from any definition that is itself substantiated. That is the very definition of a 

“conclusory” opinion. See Matosky v. Manning, 428 F. App’x. 293, 298 (5th Cir. 2011) (per 

curiam) (unpublished); Haven v. Dickerson, No. 4:09-cv-00647, 2011 U.S. Dist. LEXIS 173642, 

at *3 (S.D. Tex. July 13, 2011) (striking expert opinion where conclusions were “based . . . upon 

an undefined standard”).

As well, Koontz’s conclusory assertions altogether lack support. At many junctures, 

Koontz offers opinions given his understanding of industry standards and practices.10 While 

facially appropriate, the underlying details are absent from Koontz’s opinions. He does not 

elaborate on them in his report, and when pressed at his deposition, Koontz admitted that he could 

not cite any “authority” or “regulation” supplying these purported industry standards and 

practices.11 Without identifying the substance behind the ephemeral industry practices he 

supposedly relied on in rendering his opinions, Koontz is offering nothing but unsupported

9 Koontz Tr. 80:20-81:7 (APP_045-046).

10 See Report at 4 (APP_006), 6–7 (APP_008-009), 12 (APP_014), 18 (APP-020), 20–21 (APP_022-

023), 23 (APP_025).

11 See Koontz Tr. 54:4-7 (APP-042); see also id. 71:15-25 (APP_043), 108:17-23 (APP_057). 

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conclusions, which makes his opinions even more unreliable. See Boyd v. State Farm Ins., 158 

F.3d 326, 331 (5th Cir. 1998).

This is why Koontz leans so hard on his “training, experience, and education.” When asked 

for the basis of opinions, he consistently responded: his “training, experience, and education”—he 

retorted as much at least fourteen times during his deposition.12 And Koontz did not try to elaborate 

on this answer or even explain how his training, experience, and education “shaped the[] opinions” 

he offered. See Crawford Supply Grp., Inc. v. Bank of Am., N.A., No. 09-cv-2513, 2011 U.S. Dist. 

LEXIS 117670, at *11–12 (N.D. Ill. Oct. 12, 2011). As such, Koontz’s testimony is nothing “more 

than subjective belief [and] unsupported speculation,” which is inadmissible under Rule 702. See

Daubert, 509 U.S. at 590; see also Minasian v. Standard Chtd. Bank, P.L.C., 109 F.3d 1212, 1216 

(7th Cir. 1997). And “[w]ithout more than credentials and a subjective opinion, [Koontz]’s 

testimony that ‘it is so’ is not admissible.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 

1987); see Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the 

Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to 

existing data only by the ipse dixit of the expert.”).

2. Koontz’s Testimony Is Not Based on the Relevant Facts or Data

It is also required for Koontz’s testimony to have a basis in “sufficient facts or data” in the 

case. FED. R. EVID. 702(b). But his opinions are deficient under this requirement as well. “‘Experts 

are permitted to rely on assumptions when reaching their opinions,’ but ‘those assumptions must 

have some factual basis in the record and an underlying rationale.’” TitleMax of Tex., Inc. v. City 

of Dallas, No. 3:21-cv-1040, 2023 U.S. Dist. LEXIS 126700, at *6 (N.D. Tex. July 24, 2023) 

12 See Koontz Tr. 33:16 (APP_036); 39:23-24 (APP_37); 40:5-6, 15-16 (APP_038); 42:8-9 (APP_039); 

46:2-3 (APP_040); 53:9-10, 17-18, 23-24 (APP_041); 71:20-21 (APP_043); 81:25-82:1 (APP_046-047); 

84:20-21 (APP_048); 108:14-15, 21-22 (APP_057).

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(citation omitted). Koontz, however, made several assumptions with so little factual basis and 

underlying rationale as to cause his opinions to fail Rule 702(b). See Knight v. Kirby Inland Marine 

Inc., 482 F.3d 347, 355 (5th Cir. 2007) (“[An] expert’s testimony must be reliable at each and 

every step or else it is inadmissible.”).

Two assumptions in particular stand out: first, Koontz assumed that “[Origin] knew that 

SNLEE’s new loan with Amerisource was nearing the finish line and [Origin] would soon be paid 

off” when Origin sent the letter to SNLEE.13 And based on this assumption, Koontz concluded 

that Origin’s actions were commercially unreasonable. Yet this assumption finds support in a 

single, vaguely worded document—a document that only conveys the hopes of one individual at 

Amerisource that SNLEE would execute the Loan Documents that day.14 It is frankly a mystery 

how Koontz arrived at his assumption; on what basis could he assume from the expression of 

aspiration from an Amerisource individual that (i) the SNLEE-Amerisource deal was “nearing the 

finish line,” and (ii) Origin possessed actual knowledge that the SNLEE-Amerisource deal was 

“nearing the finish line.”15 Taking one solitary expression of hope from someone not at Origin and 

constructing an intricate assumption from which Koontz draws his ultimate conclusion is improper 

under Rule 702(b).

Second, Koontz arrives at his opinions on commercial reasonableness based on the 

assumption that Origin “kn[ew] that Gulf Coast . . . was a primary cause of the delay in closing 

and funding SNLEE’s new line of credit.”16 This assumption is doubly doomed. For one thing, it 

is irrelevant why SNLEE could not find a new line of credit. Koontz seems to think that Origin 

must stay its hand for as long as SNLEE “tries its best” to find replacement funding, or that Origin 

13 See Report at 11 (APP_013).

14 See Report at 11 & n.20 (APP_013).

15 See Report at 11 (APP_013).

16 See Report at 14 (APP_016).

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must have known that Gulf Coast would release its lien—there is no evidence of any of that. 

What’s more, Koontz’s folly finds roots in the idea that “Gulf Coast . . . not provid[ing] a UCC 

release” to SNLEE “would have prevented Amerisource from being able to fund the line of 

credit.”17 But Koontz never explains why he believes Gulf Coast needed to provide a UCC release 

to SNLEE before SNLEE signed the Amerisource loan papers. While the lien release may have 

been a condition precedent to Amerisource closing, SNLEE could have signed the papers. 

Koontz’s convenient acceptance of a non-sequitur undermines the reliability of his opinions. See

Guillory v. Domtar Indus., 95 F.3d 1320, 1331 (5th Cir. 1996) (excluding an expert opinion that 

was “not based upon the facts in the record but on altered facts and speculation designed to bolster 

[the offering party]’s position”).

Finally, Koontz’s driving assumption—that Origin had actual knowledge that Gulf Coast 

was a primary cause of the delay in the Amerisource deal and still sent the letter—is solely based 

on discussions Koontz had with SNLEE’s control person, Counter-Defendant Shawn Mudigere 

(“Mudigere”). There is no evidence to corroborate, let alone rationalize, this assumption. 

So not only did Koontz draw this critical assumption from communications with an 

interested party who already has an adversarial relationship with the truth, Koontz did so based on 

Mudigere’s unsworn word attesting to Origin’s actual knowledge when there is not a shred of 

evidence from Origin supporting it. See FED. R. EVID. 602. No Origin witness has substantiated 

this belief. The assumptions Koontz makes have absolutely no “factual basis in the record” and 

entirely lack “an underlying rationale.” TitleMax, 2023 U.S. Dist. LEXIS 126700, at *6; see FED.

R. EVID. 702(b).

17 See Report at 13 (APP_015).

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For Koontz to take Mudigere’s word as gospel, draw a pivotal assumption on that basis, 

and then offer expert opinions from there is advocacy, not expertise. See United States v. Frazier, 

387 F.3d 1244, 1262–63 (11th Cir. 2004) (“Proffered expert testimony generally will not help the 

trier of fact when it offers nothing more than what lawyers for the parties can argue in closing 

arguments.”). These core assumptions are just the most prominent examples of Koontz failing to 

base his opinions in “sufficient facts or data.” Given the pervasive nature of this flaw, Koontz’s 

opinions are excludable on this basis.

3. Koontz’s Reliance on the Parties’ Course of Performance Dooms His Opinions

Koontz’s entire report turns on Origin’s agreement to give SNLEE more time to find 

replacement funding, which he speculates created a “course of performance” that inured to the 

detriment of SNLEE when Origin started its collection efforts.

Yet the loan documents preclude this argument as a matter of law—SNLEE expressly 

waived reliance on any course of performance as a means of amending or varying the rights or 

duties under those documents. The loan documents plainly state that (1) the loan must be paid back 

per the terms of the Note, (2) any forbearance by Origin is not to be construed as a waiver or an 

amendment of Origin’s rights under the loan and security agreement, and (3) a forbearance or 

amendment to either must be in writing and signed by Origin.

18

Therefore, the parties’ alleged course of performance is irrelevant. See E. Montgomery 

County Mun. Util. Dist. No. 1 v. Roman Forest Consol. Mun Util. Dist., 620 S.W.2d 110, 112 (Tex. 

1981) (“The conduct of the parties is ordinarily immaterial in the determining of the meaning of 

18 Ex. 4, Revolving Credit and Security Agreement, Art. XI (APP_090) (“...Bank shall not be deemed to 

have waived any of its rights upon or under [the Note or Security] or Collateral unless such waiver be in 

writing and signed by the Bank. No course of dealing and no delay or omission on the part of the Bank in 

exercising any right shall operate as a waiver of such right or any other right.”); Ex. 5, Revolving

Promissory Note (APP_106, 109-110) (Note Art. I, VI).

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an unambiguous instrument.”); see also Stahl Petrol. Co. v. Phillips Petrol. Co., 550 S.W.2d 360,

367–68 (Tex. App.—Amarillo 1977) (applying plain meaning of contractual term, despite 

evidence that parties’ course of performance indicated that parties intended different meaning, 

when term was unambiguous), aff’d, 569 S.W.2d 480 (Tex. 1978).

For instance, in Shields Ltd. Partnership v. Bradberry, the Supreme Court of Texas held 

that a landlord’s acceptance of late rental payments from a long-term tenant could not amend or 

waive the parties’ agreement that contractual rights, remedies, and obligations would not be 

waived on the basis of any accommodation or forbearance because all waivers and amendments 

had to be in writing and signed by the waiving party. See 526 S.W.3d 471, 479 (Tex. 2017).

We agree with Shields that, as a matter of law, accepting late rental 

payments does not waive the nonwaiver provision in the underlying lease 

or, correspondingly, the contractual requirement that rent is due on the first 

of the month, without prior demand, and no later than the tenth day of the 

month. Moreover, Shields did not act inconsistently with its right to accept 

untimely rent without waiving the nonwaiver provision.

Id. at 480. Similarly, in Chemical Bank v. PIC Motors Corp., that court rejected the very argument 

SNLEE and the Guarantors, Mudigere and Counter-Defendant Denise Mudigere, make here. 

There, the contract read:

No delay on the part of the Bank in exercising any rights hereunder or 

failure to exercise the same shall operate as a waiver of such rights; no 

notice to or demand on the undersigned shall be deemed to be a waiver of 

the obligation of the undersigned or of the right of the Bank to take further 

action without notice or demand as provided herein; nor in any event shall 

any modification or waiver of the provisions of this guaranty be effective 

unless in writing nor shall any such waiver be applicable except in the 

specific instance for which given.

452 N.Y.S.2d 41, 43 (N.Y. App. Div. 1982). The court held that the language precluded a finding 

that course of performance could alter the bank’s contractual rights, concluding that “neither the 

alleged prior course of conduct nor the alleged promise that it would be continued could modify 

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the obligation of Siegel as guarantor of payment.” Id. Therefore, in the face of the plain language 

in the loan documents, Origin’s supported acquiescence to SNLEE’s nonpayment of the loan—

even if true—was not the type of course of performance that would lead to SNLEE never having 

to pay the loan. 

Moreover, no court has used the parties’ course of performance to fill in contractual gaps 

outside of Article 2 or 2A of the UCC. And even then, it only applied when the contract was silent 

or unambiguous on an issue. See, e.g., Hildreth v. Merle Norman Cosmetics, Inc., No. 08-02-

00402-CV, 2004 Tex. App. LEXIS 3082, at *9–10 (Tex. App.—El Paso 2004) (mem. op.) (“[I]f 

the contract is unambiguous then the conduct of the parties is immaterial to determine its 

meaning.”). 

SNLEE also stresses that Origin releasing its lien on collateral as signifying Origin’s intent 

not to collect on the Note in full. But releasing the lien arises under the security agreement, which 

is a separate document and obligation from the Note. Chem. Bank, 452 N.Y.S.2d at 44 (“It is plain 

that the bank had the right to release the collateral without discharging the guarantor [and 

therefore], the negligence . . . of the bank’s employees in so doing is irrelevant”).

Therefore, Koontz’s extensive treatment of the history of the parties’ course of dealing is 

unrelated to Origin’s rights and duties.

4. Koontz’s “Poll” Infected His Opinions with Legal Error

Also particularly troubling in Koontz’s opinions is his self-admitted reliance on “a poll of 

active lenders, retired lenders, and bank board directors” he used to confirm his “opinion that is 

[sic] was not reasonable for [Origin] to take collection action when a new loan was at the finish 

line.”19 Koontz’s so-called poll comes nowhere close to the reliability threshold required by Rules 

19 Report at 12 n.21 (APP_014).

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702 and 703, and because this deficient survey informs the core opinions offered by Koontz, he

should be excluded as an expert witness.

Before turning to the methodology (or lack thereof) Koontz’s poll utilizes, Origin points 

out an even more basic reason why the poll fatally taints Koontz’s opinions. When an expert polls 

others in the “relevant scientific community” regarding an expert opinion, the expert conducting 

the survey does so properly in an effort “to aid in determining whether [she] is proposing to use 

methods that would be rejected by a representative group of experts to arrive at the opinion the 

expert will offer.” Shari Seidman Diamond, Fed. Jud. Ctr., Reference Guide on Survey Research, 

in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 369 (3d ed. 2011) (emphasis added). This makes 

sense given Supreme Court precedent instructing that the analytical “focus . . . must be solely on 

principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. 

Koontz’s poll facially violates this command. In his own words, Koontz conducted a survey 

to ask whether other alleged experts in the banking industry “agreed with [his] opinion”—that is, 

the conclusion that Koontz draws—regarding Origin’s actions.20 Contrary to Daubert, Koontz did 

not seek to confirm the propriety of his “principles and methodology,” but rather the ultimate 

conclusion he generated. See 509 U.S. at 595. Koontz’s poll is therefore fundamentally flawed in 

its core premise, and his opinions must be excluded.

The execution of Koontz’s survey, i.e., the methodology, also renders the poll completely 

unreliable and thereby inadmissible. “Surveys . . . are admissible[] if they are pertinent to the 

inquiry[] upon a showing that the poll is reliable and was compiled in accordance with accepted 

survey methods.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1054 (5th Cir. 

1981). Before “the findings of a survey” are examined, “it is important to determine exactly what 

20 Report at 12 n.21 (APP_014) (emphasis added).

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weight is to be given to the evidence.” Exxon Corp. v. Tex. Motor Exch., 628 F.2d 500, 506 (5th 

Cir. 1980); see Johnson & Johnson v. Smithkline Beecham Corp., 960 F.2d 294, 300 (2d Cir. 1992) 

(“The evidentiary value of a survey’s results rests upon the underlying objectivity of the survey 

itself.”). To do so, courts in this circuit look to two factors: (1) “the manner of conducting the 

survey,” and (2) “the way in which participants are questioned.” Scott Fetzer Co. v. House of 

Vacuums, Inc., 381 F.3d 477, 487 (5th Cir. 2004). With a survey, the ultimate question “becomes, 

Was the poll or survey conducted in accordance with generally accepted survey principles, and 

were the results used in a statistically correct way?’” Diamond, supra, at 364 (citation omitted). 

And while a survey need not be perfectly administered to be admissible, “serious flaws in a survey 

will make any reliance on that survey unreasonable. Otherwise, any survey, no matter how 

tendentious, would force the parties to trial.” House of Vacuums, 381 F.3d at 488 (citation omitted). 

Koontz’s poll is nothing but serious flaw on top of serious flaw and makes Koontz’s opinions 

inadmissible.

Normally, analyzing a survey’s reliability requires critical examination of the survey’s 

component parts, including, but not limited to, the “design, execution, and analysis.” Diamond, 

supra, at 362; see also id. (outlining the appropriate considerations in greater specifics). But the 

way Koontz conducted his poll precludes this baseline examination altogether (which makes some 

sense considering he is not an expert in survey practices). As he admitted, Koontz, among other 

things: (i) believes he “probably” polled five people for his survey;

21 (ii) refused to identify each 

of the people polled;

22 (iii) could not recall the actual question he asked each individual;23 (iv) did 

not provide any written prompts or background facts to those surveyed;

24 and (v) conveyed the 

21 Koontz Tr. at 96:6-9 (APP_053).

22 See Koontz Tr. at 96:14-19, 21-23 (APP_053)

23 Koontz Tr. 97:19-98:4 (APP_054-055).

24 Koontz Tr. 98:10-13 (APP_055).

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opinions of those surveyed based on his memory of the oral conversations he had with those 

polled.25 These realities of Koontz’s poll outright prevent Origin from analyzing the way this 

survey was conducted and the way participants were questioned, which are the factors necessary 

to analyze the reliability of an expert’s survey. See House of Vacuums, 381 F.3d at 487. 

Accordingly, because it is (literally) impossible to examine whether Koontz’s survey is 

admissible, the survey and the opinions with which the survey is inextricably intertwined must be 

excluded. See, e.g., Reinsdorf v. Skechers U.S.A., 922 F. Supp. 2d 866, 878–79 (C.D. Cal. 2013) 

(excluding a survey because (i) the offering party did not “identify any scientific principles 

underlying” the survey, and (ii) the survey “appear[ed] to violate numerous accepted practices in 

the field of survey research”); Albert v. Warner-Lambert Co., 234 F. Supp. 2d 101, 105–07 (D. 

Mass. 2002) (excluding a survey because it “conformed to virtually none of” the elements of a 

“reliable” survey).

Koontz’s poll amounts to an attempted bolstering mechanism for expert opinions already 

lacking both relevance and reliability. And his proffered survey confirms what is readily apparent: 

the opinions Koontz offers here cannot “withstand the same scrutiny that [they] would among 

[Koontz’s] professional peers.” Watkins, 121 F.3d at 991; cf., e.g., Nat’l Union Fire Ins. Co. v. 

Wells Fargo Bank, N.A., No. 03-cv-2452, 2005 U.S. Dist. LEXIS 47175, at *13 (C.D. Cal. Mar. 

16, 2005) (“The court doubts that any banker would rely on such an informal survey to determine 

the practices of banks in processing ATM deposits.”). 

Unable to survive even slight pressure testing under Rules 702 and 703, Koontz’s survey 

and his opinions compromised by the survey must be excluded.

25 Koontz Tr. 98:14-17 (APP_055), 99:7-15 (APP_056).

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IV.

CONCLUSION

For these reasons, the expert opinions of Koontz must be stricken.

Dated: September 8, 2023 Respectfully submitted,

SBAITI & COMPANY PLLC

/s/ Brad J. Robinson

Mazin A. Sbaiti

Texas Bar No. 24058096

mas@sbaitilaw.com

Brad J. Robinson

Texas Bar No. 24058076

bjr@sbaitilaw.com

Griffin S. Rubin

Texas Bar No. 24121809

gsr@sbaitilaw.com

SBAITI & COMPANY PLLC

Dallas Arts Tower

2200 Ross Ave., Suite 4900W

Dallas, Texas 75201

T: (214) 432-2899

F: (214) 853-4367

ATTORNEYS FOR DEFENDANT

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