IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

NATURES WAY MARINE, LLC, ) 

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Plaintiff,

vs. CIVIL ACTION NO. 12-316-CG-M 

EVERCLEAR OF OHIO, LTD., 

and NIRK MAGNATE HOLDING 

CORP., 

Defendants. 

ORDER 

 This matter is before the Court on Defendants’ motion to exclude the 

testimony of Plaintiff’s expert (Docs. 135, 136), Plaintiff’s response in opposition 

(Doc. 142), and Defendants’ reply (Doc. 146); and Plaintiff’s motion to exclude the 

testimony of Defendants’ expert (Docs. 142, 173, 174), and Defendants’ response in 

opposition (Docs. 172). For the reasons explained below, the Court finds that 

Defendants’ motion to exclude should be GRANTED and Plaintiff’s motion to 

exclude should be GRANTED. Defendants’ motion to strike Plaintiff’s motion to 

exclude (Doc. 177) because it is redundant is DENIED as moot. 

I. Background 

 This case involves breach of contract claims arising out of a charter 

agreement. Natures Way Marine, LLC (“Plaintiff”) entered into a charter 

agreement with Everclear of Ohio, Ltd. (“Everclear”) and Nirk Magnate Holding 

Corp. (“Nirk Magnate”) (collectively, “Defendants”) to provide barges and towing 

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vessels sufficient to transport spent fuel oils (“lubes”) from East Liverpool, Ohio to 

Avondale, Louisiana. (Doc. 1, Exh. 1). After the transaction soured, Plaintiff 

asserted a breach of contract claim against Defendants. (Doc. 1, p. 4). In response, 

Defendants raised counterclaims contending Plaintiff breached the contract. (Doc. 

23, p. 9; Doc. 53, p. 8). Both parties now ask the Court to exclude the testimony of 

the opposing expert witness. (Docs. 135, 173). 

II. Motions to Exclude Experts

Defendants move to exclude the testimony of Plaintiff’s expert, A. Clay 

Rankin, III, under Federal Rules of Evidence, Rule 702. (Doc. 136, p. 7). Plaintiff 

similarly moves to exclude the testimony of Defendants’ expert, William Moore. 

(Doc. 174, pp. 5, 8, 10 – 11). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or 

otherwise if:

(a) 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;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the 

facts of the case.

FED. R. EVID 702. The rule compels district courts to analyze “the foundations of

expert opinions to ensure they meet the standards for admissibility under Rule 

702.” United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005) (quoting United 

States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (internal quotation marks 

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omitted)). Accordingly, under Rule 702, “this Court has an obligation to screen 

expert testimony to ensure it stems from a reliable methodology, sufficient factual 

basis, and reliable application of the methodology to the facts.” Whatley v. Merit 

Distrib. Servs, 166 F.Supp.2d 1350, 1353 (S.D. Ala. 2001) (citations omitted). 

A district court judge must “act as a ‘gatekeeper’ for expert testimony, only 

admitting such testimony after receiving satisfactory evidence of its reliability.” 

Dhillon v. Crown Controls Corp., 269 F.3d 865, 869 (7th Cir. 2001) (citing Daubert 

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). However, “it is not the role 

of the district court to make ultimate conclusions as to the persuasiveness of the 

proffered evidence.” Quiet Technology DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 

F.3d 1333, 1341 (11th Cir. 2003). “[A] district court’s gatekeeper role under Daubert

is not intended to supplant the adversary system or the role of the jury.” Id. (citing 

Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001)). “Quite the contrary, ‘[v]igorous 

cross-examination, presentation of contrary evidence, and careful instruction on the 

burden of proof are the traditional and appropriate means of attacking shaky but 

admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596).

A district court must engage in a “rigorous three-part inquiry” to determine

the admissibility of expert testimony under Rule 702. Trial courts must consider 

whether: 

(1) the expert is qualified to testify competently regarding the matters 

he intends to address; (2) the methodology by which the expert reaches 

his conclusions is sufficiently reliable as determined by the sort of 

inquiry mandated in Daubert; and (3) the testimony assists the trier of 

fact, through the application of scientific, technical, or specialized 

expertise, to understand the evidence or to determine a fact in issue.

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Frazier, 387 F.3d at 1260 (11th Cir. 2004) (quoting City of Tuscaloosa v. Harcros 

Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1999)). These requirements are known as 

the “qualifications,” “reliability,” and “helpfulness” prongs. See id.

Experts may satisfy the “qualifications” prong in various ways. While 

scientific training or education may provide possible means to qualify, experience in 

a field may offer another path to expert status. The plain language of Rule 702 

makes this clear: expert status may be based on “knowledge, skill, experience, 

training, or education.” The Rule 702 Advisory Committee Notes also explain,

“Nothing in this amendment is intended to suggest that experience alone--or 

experience in conjunction with other knowledge, skill, training or education--may 

not provide a sufficient foundation for expert testimony.” FED. R. EVID 702. advisory 

committee’s note (2000 amends.). Of course, the observation that an expert may be 

qualified by experience does not mean that experience, standing alone, is a 

sufficient foundation for any conceivable opinion the expert may express. The 

“reliability” and “helpfulness” criteria remain discrete, independent, and important 

requirements for admissibility. Quiet Tech. DC-8, Inc., 326 F.3d at 1341, 1347.

For the “reliability” prong, “the proponent of the testimony does not have the 

burden of proving that it is scientifically correct,” but must establish “by a 

preponderance of the evidence, it is reliable.” Allison v. McGhan Medical Corp., 184 

F.3d 1300, 1312 (11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 

717, 744 (3d Cir. 1994)); see also Whatley, 166 F. Supp. 2d at 1354 (“the proponent 

of the expert testimony has the burden to establish by a preponderance of the 

evidence that the admissibility requirements of Rule 702 are satisfied.”) (citations 

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omitted). The question of whether an expert’s testimony is reliable depends on the 

facts and circumstances of the particular case. Kumho Tire Co. v. Carmichael, 526 

U.S. 137, 158 (1999)). Factors that may be useful in determining reliability include:

(1) whether the theory or technique can be (and has been) tested, (2) 

whether the theory or technique has been subjected to peer review and 

publication, (3) in the case of a particular ... technique, the known or 

potential rate of error, and (4) whether the theory or technique is 

generally accepted by the relevant ... community.

Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010) 

(internal quotation marks and alterations omitted). 

For the “helpfulness” prong, the court considers whether the expert testimony

concerns matters that are beyond the understanding of the average layperson. See

United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985) (expert testimony 

admissible if it offers something “beyond the understanding and experience of the 

average citizen”). 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. Frazier, 387 F.3d at 1262-63. Additionally, “[a]n opinion is not 

objectionable just because it embraces an ultimate issue.” FED. R. EVID. 704. An 

expert may testify as to his opinion on an ultimate issue of fact. United States v. 

Delatorre, 308 Fed. Appx. 380, 383 (11th Cir. 2009). “Such opinions are properly 

admitted if they are based on the personal observations of the witness.” Carter v. 

DecisionOne Corp. Through C.T. Corp. Sys., 122 F.3d 997, 1005 (11th Cir. 1997). An 

expert may not, however, testify about the legal outcomes or implications of certain 

conduct, which may include “legal opinions” and “legal conclusions.” Cook ex rel. 

Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1112, n. 8 (11th 

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Cir. 2005) (noting courts “must remain vigilant against the admission of legal 

conclusions, and an expert witness may not substitute for the court in charging the 

jury regarding the applicable law”) (citations and quotations omitted); see also

Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (an 

expert may not offer an opinion about the scope of an insurer’s duty under an 

insurance policy because “[t]his [i]s a legal conclusion”). Merely telling the jury 

what result to reach is unhelpful and inappropriate. Montgomery, 898 F.2d at 1541.

A. A. Clay Rankin, III

Defendants first contend Mr. Rankin is not qualified to testify as an expert 

because he does not have any “practical experience” other than working “as a 

lawyer to render the opinions he has offered in this case.” (Doc. 136, p. 4). 

Defendants point out Mr. Rankin has no experience “dealing with the 

transportation of any kinds of goods or commodities out of East Liverpool, Ohio, or 

the oil terminal facilities in Avondale.” (Doc. 136, p. 4). Mr. Rankin confirmed that 

he has not “done anything but be a lawyer since 1967.” (Doc. 136, p. 5). 

Rule 702 dictates that expert status may be based on experience alone.

Frazier, 387 F.3d at 1295 (11th Cir. 2004) (citing FED. R. EVID 702). But after 

reviewing Mr. Rankin’s qualifications, the Court finds that he does not have 

sufficient specialized experience to offer expert opinion testimony about this charter 

agreement. Mr. Rankin worked as a lawyer, with an emphasis on admiralty and 

maritime issues, yet he has no experience operating a tug, transporting fuel oil, or 

performing any of the actual work called for in the charter agreement. (Doc. 136, pp. 

3 – 4). His skill, experience, training, and education as a lawyer does not make him 

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any more qualified to testify about a charter agreement breach than a layperson 

who has heard the evidence in this case and is provided jury instructions explaining 

the law. Cf. United States v. Paul, 175 F.3d 906, 912 (11th Cir. 1999) (excluding 

testimony of law professor because of limited experience). Accordingly, Mr. Rankin’s 

testimony fails to satisfy the “experience” prong. 

Defendants also contend Mr. Rankin’s testimony consists of inadmissible 

legal opinions. (Doc. 136, pp. 4, 10). Although “the distinction between whether 

challenged testimony is either an admissible factual opinion or an inadmissible 

legal conclusion is not always easy to perceive,” Hanson v. Waller, 888 F.2d 806, 811 

(11th Cir. 1989), in this case that distinction is clear. Mr. Rankin is testifying that 

in his legal opinion, Defendants breached the charter agreement and waived certain 

defenses. (Doc. 136, pp. 3 – 5). Breaching the charter agreement and waiving 

affirmative defenses are the ultimate issues of law that the jury must decide, and

simply telling the jury how to decide those issues is improper. Montgomery, 898 

F.2d at 1541. Furthermore, Plaintiff does not dispute that Mr. Rankin gave his 

“legal opinions” based on his experience practicing law. (Doc. 142, p. 2). Instead, 

Plaintiff tries to argue that Mr. Rankin did not give any “legal conclusions,” so his 

testimony is admissible. (Doc. 142, p. 2). Such word play is not persuasive. Mr. 

Rankin’s opinions merely tell the jury what result to reach. Because Mr. Rankin’s 

testimony amounts to nothing more than his legal opinions on the ultimate issues of 

law in this case, his testimony will not assist the jury. Mr. Rankin’s testimony, 

therefore, also fails the “helpfulness” prong.

B. William M. Moore

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Plaintiff asked the Court to exclude the expert testimony of William M.

Moore. (Doc. 142, p. 5). Plaintiff contends Mr. Moore is lacking the qualifications 

and experience required to render opinions in this case. (Doc. 142, p. 5; Doc. 174, pp. 

5 – 6). Plaintiff further states Mr. Moore “gave opinions concerning the ultimate 

issues” of the case, and “[o]pinions coming from an attorney are legal opinions.” 

(Doc. 142, pp. 8, 13; Doc. 174, p. 8). 

The Rule 702 Advisory Committee Notes help clarify the trial court’s role in 

evaluating testimony like Moore’s, which is based “primarily on experience.” FED.

R. EVID. 702 advisory committee’s note (2000 amends.). According to the committee: 

If the witness is relying solely or primarily on experience, then the 

witness 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. The trial court’s 

gatekeeping function requires more than simply taking the expert’s 

word for it. Id.

The plain language of Rule 702, as well as the Advisory Committee Notes, direct the 

court to examine expert testimony to ensure it stems from, not just a reliable 

methodology, but also a sufficient factual basis and reliable application of the 

methodology to the facts. Thus expert testimony must be “more than subjective 

belief or unsupported speculation.” Daubert, 509 U.S. at 590.

After carefully reviewing the record, the Court concludes Mr. Moore’s 

testimony does not satisfy the “helpfulness” prong discussed above, and it is 

questionable whether his experience qualifies him as an expert in this subject. Mr. 

Moore is an attorney, though Defendants argue he has “extensive practical 

operations based experience in the area of inland barge charter agreements.” (Doc. 

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172, p. 2). Mr. Moore graduated from the United States Naval Academy and served 

in the Marine Corps before attending law school. (Doc. 172, Exh. 2, p. 1). Mr. Moore 

worked as a lawyer with “significant admiralty law and maritime representation” 

from 1978 until roughly 2009. (Doc. 172, p. 3; Exh. 2, p. 1). Since 2009, Mr. Moore 

has worked as a consultant to various companies that handle the movement of 

cargo in barges on inland waterways. (Doc. 172, p. 3). Defendants contend, “Mr. 

Moore offers opinions on the parties responsibilities under the Charter Agreement 

based on his hands-on operational experience.” (Doc. 172, p. 5). Defendants further 

argue Mr. Moore did not base his opinions on “any law or treatises or books,” but 

rather “on the negotiations between the parties prior to the execution of the Charter 

Agreement.” (Doc. 172, p. 7).

Defendants, however, do not adequately explain how or why Mr. Moore’s 

experience provides a sufficient basis for his expert opinion. Defendants emphasize 

that Mr. Moore did not base his opinions on law, but they do not connect his 

experience to his conclusions. Mr. Moore’s deposition testimony similarly reveals 

that he gave his opinions about the charter agreement and related issues in this 

case without industry context. (Doc. 172, Exh. 1). At one point, Mr. Moore states he 

is basing his opinion simply on “reading the contract,” but he does not tie his 

knowledge of the industry to any of the charter agreement terms. (Doc. 172, Exh. 1, 

p. 9). At another point, Mr. Moore states “I think the fact of having a barge with 

what their repair yard described as extensive wastage and multiple leaks indicates 

a complete failure to exercise due diligence,” which is a factual inference that can 

easily be drawn by the jury. (Doc. 172, Exh. 1, p. 24). Later, Mr. Moore states that 

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he is basing his answer on “the nature of their negotiations.” (Doc. 172, Exh. 1, p. 

26). Again, this is a fact the jury can decide. While it is certainly true that an expert 

can testify about ultimate issues of fact, Mr. Moore’s testimony simply echoes 

arguments that Defendants’ attorneys can make at trial. Mr. Moore’s opinions, 

therefore, are not helpful for the jury. See In re Air Crash Disaster at New Orleans, 

La., 795 F.2d 1230, 1233 (5th Cir. 1986) (urging the court “to insist that a proffered 

expert bring to the jury more than the lawyers can offer in argument”). 

Additionally, Mr. Moore does not present any data about the industry or 

related methodology for this Court to consider. He does not, for instance, say that he 

has worked on fifty charter agreements for spent lubes and forty-nine of them 

included an industry standard time is of the essence clause. Instead, Mr. Moore’s 

opinions are cloaked in the fact that he works primarily as an attorney, and his 

opinions are aimed at telling the jury what verdicts to reach. As a result, Mr. 

Moore’s testimony is improper and must be excluded. 

CONCLUSION 

 For the reasons stated above, Defendants’ motions to exclude the expert 

testimony of A. Clay Rankin, III is GRANTED (Doc. 136), and Plaintiff’s motion to 

exclude the expert testimony of William Moore is GRANTED (Doc. 142, 173). 

Defendants’ motion to strike Plaintiff’s motion to exclude (Doc. 177) is DENIED as 

MOOT. 

DONE and ORDERED this 10th day of November, 2014. 

 /s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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