IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

MSKP OAK GROVE, LLC, 

 Plaintiff, 

 v. 

CAROL VENUTO, individually and 

as executrix of the Estate of 

RALPH A. VENUTO, Sr., et al., 

 Defendants. 

 

HONORABLE JEROME B. SIMANDLE 

Civil Action 

No. 10-6465 (JBS/JS) 

OPINION

 

 

APPEARANCES: 

Robert A. Vort, Esq. 

2 University Plaza, Suite 101 

Hackensack, NJ 07601 

-andJoseph A. Molinaro, Esq. 

666 Godwin Avenue, Suire 220 

Midland Park, NJ 07342 

 Attorneys for Plaintiff 

Dimitri Luke Karapelou, Esq. 

LAW OFFICES OF DIMITRI L. KARAPELOU, LLC 

Two Penn Center 

1500 JFK Boulevard, Suite 920 

Philadelphia, PA 19102 

 Attorney for Defendants 

SIMANDLE, Chief Judge: 

INTRODUCTION 

 This case comes before the Court on motions in limine filed 

by both parties [Docket Items 232 & 233] in advance of a nonjury trial scheduled for May 15, 2017. The Court finds as 

follows. 
2 

BACKGROUND 

 For the purposes of the instant motion, it suffices to 

recount the following. In this action, Plaintiff MSKP Oak Grove, 

LLC (“MSKP”) asserts claims under the New Jersey Uniform 

Fraudulent Transfer Act, N.J.S.A. § 25:2-20 et seq. (“NJUFTA”), 

arising from an allegedly fraudulent transfer of assets through 

which Defendants intended to avoid payment to certain creditors, 

including Plaintiff. Plaintiff is a commercial landlord to 

which Hollywood Tanning Systems, Inc. (“HTS”) is indebted by a 

2009 judgment in the amount of $411,573.45. Plaintiff alleges 

that following an asset purchase agreement with another 

corporation, Tan Holdings, LLC, in 2007, HTS fraudulently 

distributed $23.9 million to its shareholders, Defendants Carol 

and Ralph A. Venuto, Sr.,1 Ralph A. Venuto, Jr., Carol Rebbecchi, 

and Richard P. Venuto (“the Shareholders”) on June 22, 2007, and 

rendered HTS without sufficient assets to satisfy future 

obligations to creditors, including HTS’s obligation to 

Plaintiff relating to a defaulted lease agreement. 

 The parties now move for orders excluding, or striking 

their opponents’ objections to, certain of the trial exhibits 

and witnesses identified in the Joint Final Pretrial Order, 

 

1 Because Ralph A. Venuto, Sr. died prior to the initiation of 

this action, Plaintiff names his estate as a defendant, 

represented by Defendant Carol Venuto as executrix. 
3 

signed by Magistrate Judge Joel Schneider on January 12, 2017. 

[Docket Item 226.] These motions are now fully briefed, and 

supplemented by a joint stipulation of certain facts filed on 

April 19, 2017. [Docket Item 248.] 

STANDARD OF REVIEW 

 This Court may hear the present motions in limine because 

it has the inherent authority to manage cases brought before it.

Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). An “in 

limine ruling on evidence issues is a procedure which should, in 

the trial court's discretion, be used in appropriate cases.” In 

re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d 

Cir. 1983), rev'd on other grounds sub nom., Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). One such 

appropriate case is where the court can shield the jury from 

unfairly prejudicial or irrelevant evidence. See United States 

v. Romano, 849 F.2d 812, 815 (3d Cir. 1988). The in limine 

motion then fosters efficiency for the court and for counsel by 

preventing needless argument at trial. New Jersey Civil 

Procedure § 16–2:2 (citing Bradley v. Pittsburgh Bd. of 

Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). Although pretrial 

motions in limine are also permissible in a non-jury case, their 

utility is diminished because the judge determining the 

admissibility of evidence is also the fact finder, and thus many 

such objections can be deferred until trial. 
4 

DISCUSSION 

At trial, Plaintiff will be required to prove by clear and 

convincing evidence the various essential elements of its NJUFTA 

claims,2 including that the Shareholders intended to hinder, 

delay, or defraud MSKP through the Shareholders’ distribution of 

most proceeds from the June, 2007 Tan Holdings transaction to 

themselves. Plaintiff seeks to do this, in part, by introducing 

testimony and documentary evidence of Defendants’ behavior 

towards other creditors and in other lawsuits, specifically in 

connection with suits against HTS by Hadis Nafar, GS Partners, 

HT of Highlands, and Rowan Petroleum Properties, LLC; and 

against Hollywood Hands by Warminster Group, L.P.; and against 

Ralph Venuto, Sr., and other companies he owned. Plaintiff also 

seeks to use much of this evidence to prove that HTS was 

insolvent and/or maintained inadequate cash reserves in relation 

 

2 Specifically, as discussed in the Opinion filed June 29, 2016 

[Docket Item 215], Plaintiff asserts claims under the NJUFTA in 

three counts. Count One alleges that the $23.8 million 

shareholder distribution to Defendants violates the 

intentionally fraudulent transfer provision of the NJUFTA, 

N.J.S.A. 25:2-225(a). Id. at 28-34. Count Two alleges that the 

shareholder distribution constitutes a constructive fraudulent 

transfer because HTS’s remaining assets were unreasonably small 

in relation to its business, in violation of N.J.S.A. 25:2-

25(b)(1). Id. at 34-40. Count Three alleges that the shareholder 

distribution caused HTS to become insolvent, in violation of 

N.J.S.A. 25:2-27(a). Id. at 40-42. Plaintiff’s claim in Count 

Four under N.J.S.A. 25:2-27(b) was recently dismissed as barred 

by the statute of limitations in the Memorandum Opinion and 

Order of April 17, 2017 [Docket Items 246 & 247]. 
5 

to its business between 2006 and 2010. Also contested in the 

instant motions are documents relating to the Estate of Ralph 

Venuto, Sr.; the assets of HTS; Defendants’ rebuttal expert 

report by William Pederson and other documentary evidence from 

the Orchard Mall case; the admissibility of case law and filings 

from this case; and a few miscellaneous documents.3 The parties 

have supplemented their briefing record with a stipulation of 

facts [Docket Item 248] by which the parties agree, inter alia, 

that all of the documents which Plaintiff intends to introduce 

are authentic and that Defendants reserve their right to 

challenge their relevance at trial. 

1. Other lawsuits against HTS 

 Plaintiff seeks to introduce testimony and documentary 

evidence regarding a number of other lawsuits by creditors 

against HTS, including those involving Hadis Nafar, GS Partners, 

HT of Highlands Ranch, and Rowen Petroleum in the state and 

federal courts of New Jersey. Plaintiff argues that this 

evidence will be relevant to prove (i) that HTS was insolvent 

and maintained inadequate cash reserves, and (ii) that HTS 

 

3 Plaintiff also requests leave to amend the Joint Final Pretrial 

Order to add Glenn Geiger to its witness list, who will testify 

as to jurisdictional facts regarding Plaintiff’s ownership and 

citizenship. Because Defendants do not oppose this relief, the 

Court will grant Plaintiff’s motion to the extent it seeks this 

relief. If the facts of Plaintiff’s citizenship are not in 

dispute, the Court would appreciate a suitable stipulation of 

facts in lieu of testimony. 
6 

intended to hinder, delay, or defraud creditors by “employing a 

scorched earth litigation strategy” against all its creditors. 

Defendants object to this evidence on the grounds that it is 

irrelevant and that much of it is hearsay. Defendants seek to 

exclude Plaintiff’s Exhibits 16-19, 37-58 & 71. 

 At the outset, the Court notes that it appears that the 

parties have resolved their dispute over whether Plaintiff can 

call Mr. Federman or a representative from Travelers Insurance. 

The new stipulations of fact include agreements that the 

documents which each would be called to authenticate – a lease 

signed by Ralph Venuto, Sr. and an insurance policy issued to 

HTS, respectively – are authentic, obviating the need for their 

testimony at trial. Accordingly, the Court will deny Plaintiff’s 

motion as moot to the extent that it seeks an order overruling 

Defendants’ objections to Mr. Federman and the Travelers 

Insurance representative. 

Because the parties have framed their arguments about other 

case evidence in broad terms, the Court too will address the 

issues ranging from the general to the specific. Under the 

Federal Rules of Evidence, evidence is only admissible to the 

extent that it is relevant. Fed. R. Evid. 402. The Rules define 

relevant evidence as “evidence having any tendency to make the 

existence of any fact that is of consequence to the 

determination of the action more probable or less probable than 
7 

it would be without the evidence.” Fed. R. Evid. 401. This sets 

a low bar for admissibility, subject to the other Rules of 

Evidence. United States v. Starnes, 583 F.3d 196, 214 (3d Cir. 

2009). However, even where evidence is relevant, it may be 

excluded where “its probative value is substantially outweighed 

by a danger of . . . unfair prejudice, confusing the issues, . . 

. undue delay, wasting time, or needlessly presenting cumulative 

evidence.” Fed. R. Evid. 403. 

 This Court has already determined that evidence of 

Defendants’ conduct in this and other litigations is not 

probative of their “intent to hinder or delay” creditors within 

the meaning of the NJUFTA; all parties are bound by the law of 

the case holding that “what is relevant to Plaintiff’s success . 

. . is only proof of Defendants’ intent to defraud or delay 

creditors by means of a fraudulent conveyance, in this case the 

shareholder distribution, and not any other conduct.” Opinion 

dated June 29, 2016 [Docket Item 215] at 31 n. 7. Nevertheless, 

some items of evidence of these other suits may be probative of 

HTS’s financial condition and whether HTS retained assets after 

the shareholder distribution that were “unreasonably small in 

relation to the business or transaction,” or whether HTS was 

insolvent at the time of the shareholder distribution or became 

insolvent because of the distribution. See N.J.S.A. 25:2-

25(b)(1) and 25:2-27(a). 
8 

 Several clear guideposts emerge regarding the use of 

evidence from other HTS cases. First, Plaintiff will not be 

permitted to relitigate claims by other creditors against these 

defendants that were made but not adjudicated in other lawsuits. 

To permit Plaintiff to submit reams of evidence from other cases 

in hopes of proving that these defendants committed fraudulent 

acts in these cases toward other creditors, where there was no 

adjudication that such fraud had been proved, would 

impermissibly involve this Court in determining the merits of 

other creditors’ unadjudicated claims from other cases. This is 

true of each of the other cases referenced by Plaintiff in which 

the matter of fraud was not adjudicated, namely, the Hadis 

Nafar, GS Partners, and HT of Highlands Ranch lawsuits. Such a 

trial-within-a-trial is not to be permitted where it would, as 

in the present circumstances, consume undue time to even know 

whether such fraud occurred, contrary to Rule 403, Fed. R. Evid. 

This presents a situation in which this Court finds the 

probative value of the evidence from unadjudicated accusations 

in other cases is substantially outweighed by the undue 

consumption of time that such minitrials would consume, tipping 

the Rule 403 balance squarely against admissibility of much that 

happened in other cases. The Court thus rules out Plaintiff’s 

proposal to make a wholesale introduction of pleadings, briefs 
9 

and documents from other cases. Defendants’ motion is granted to 

this extent. 

 Second, pleadings and briefs filed in other cases are not 

evidence. They are allegations, not proof. Pleadings and briefs 

are thus inadmissible standing alone. Orson, Inc. v. Miramax 

Film Corp., 79 F.3d 1358, 1372 (3d Cir. 1996) (holding that 

“legal memoranda and oral argument are not evidence.”). 

 Third, a judicial order from another case may be admissible 

if otherwise relevant and probative to the factual issues in 

this case, as a court may take judicial notice of another 

court’s order upon the public docket when Rule 201, Fed. R. 

Evid., is satisfied. McTernan v. City of York, 577 F.3d 521, 525 

(3d Cir. 2009) (noting that “a court may take judicial notice of 

a prior judicial opinion.”). 

 Fourth, a relevant statement by a party opponent, though 

made in another case, is not hearsay and it may be admissible 

under Rule 801(d)(2), Fed. R. Evid. Further, a prior 

inconsistent statement of a witness, made in another case, is 

likewise not hearsay and it may be admissible if Rule 

801(d)(1)(A), Fed. R. Evid., is satisfied. 

 Fifth, evidence that Defendants or their attorneys have 

caused delay or been uncooperative in other cases regarding 

claims of Defendants’ fraud, as Plaintiff asserts, will 

generally not be admissible here. Defendants are not on trial 
10 

here for the manner in which they defend other creditors’ 

claims. However, if another court has addressed such alleged 

misconduct and found that it occurred and that it gives rise in 

that case to an evidential inference or sanction, then Plaintiff 

here will be permitted to argue for its admissibility here. For 

example, if there is evidence that Defendants hid the true 

financial condition of HTS from creditors at or about the time 

of the alleged fraudulent transfer in 2007, such evidence may be 

intrinsic to the present case. The Court will then examine the 

probative value of such a finding to the issues in dispute and 

whether the Rule 403 concerns substantially outweigh the 

probative value. Such a determination cannot be made on the 

present record. 

 Resolution of some of these disputes is premature because 

“the context of trial” may provide clarity on the relevance and 

potential prejudice of each proffered piece of evidence. 

Ebenhoech v. Koppers Indus., Inc., 239 F. Supp. 2d 455, 461 

(D.N.J. 2002) (noting that rulings on motions in limine “should 

not be made prematurely if the context of trial would provide 

clarity”); Sperling v. Hoffmann-La Roche, Inc., 924 F. Supp. 

1396, 1413 (D.N.J. 1996) (“[I]t is difficult to rule on the 

admissibility of pieces of evidence prior to trial. It is often 

useful to wait and see how the trial unfolds.”). The Court will 

discuss other specific issues raised in these motions. 
11 

 Plaintiff has listed two witnesses who were participants in 

prior HTS litigation to whom Defendants object, namely, Stephen 

M. Orlofsky and Carmine Gallicchio. 

 Mr. Orlofsky’s firm, Blank Rome LLP, was counsel to 

Hollywood Tanning Systems, Inc., in a suit filed in 2006 by 

Hadis Nafar that was removed to this Court, Nafar v. Hollywood 

Tanning Systems, Civil No. 06-3826; Plaintiff proposes to obtain 

Mr. Orlofsky’s testimony about HTS’s insurance policy which 

covered only counsel fees and costs of defense but not 

indemnification of any settlement or judgment against HTS, as 

well as addressing the contents of HTS’s notice of removal which 

pleaded that damages sought from HTS exceeded $5 million. [See 

JFPTO, Part V, p. 26.] 

 Mr. Gallicchio, on the other hand, was the sole member of 

GS Partners which purchased an HTS franchise, for which GS 

Partners asserted fraud claims against HTS, Ralph Venuto, Jr. 

and Ralph Venuto, Sr. in 2009 in arbitration, which was 

terminated when HTS failed to pay its arbitration fee; Mr. 

Gallicchio would testify that GS Partners then filed suit in 

2010 for damages against HTS, the Estate of Ralph Venuto, Sr., 

and Ralph Venuto, Jr., which resulted in an empty judgment 

against HTS only in 2011 in the amount of $959,359. [See JFPTO, 

Part V, p. 27.] 
12 

 The need for Mr. Orlofsky’s testimony has been mooted by 

the parties’ stipulations. They have stipulated that in removing 

the Nafar case to federal court, HTS pleaded that the amount in 

controversy exceeded $5,000,000. Stipulations of Facts [Docket 

Item 248] at ¶¶ 1 & 2. Likewise, they have stipulated to the 

existence of HTS’s sole insurance policy and attached a copy to 

the stipulations. Id. ¶ 3. Accordingly, Mr. Orlofsky’s proffered 

testimony has been rendered unnecessary. 

 As for Mr. Gallicchio, while the parties have stipulated 

that the documents on which Gallicchio will rely (P-41 to P-61 

and P-63) are authentic (Stipulations of Fact at ¶ 6), 

Defendants reserve their right to object to the relevance of 

these documents. Id. As discussed above, if Plaintiff intends to 

present these 21 documents to demonstrate that several of the 

Defendants employed an evasive litigation style in the GS 

Partners case, the Defendants’ objection will be sustained. If 

there are particular documents from the GS Partners case that 

document HTS’s financial condition at or about the time of the 

alleged fraudulent transfer in 2007, such documents may be 

admissible, but no determination can be made now. Likewise, for 

example, the court’s final judgment may well be admissible if 

Plaintiff can show why defendants’ acts in defrauding an HTS 

franchisee are probative of the alleged fraudulent conveyance, 

to the Defendants, of HTS’s proceeds from the Tan Holdings 
13 

purchase in 2007; such a determination is likewise premature, 

and will be deferred for trial. 

2. Hollywood Hands lawsuit 

 Next, Defendants seek to exclude, and Plaintiff seeks to 

overrule Defendants’ objections to, documents related to 

Warminster Group, L.P. v. Hollywood Hands, Court of Common Pleas 

of Pennsylvania, Bucks County, Docket No. 2000-4882-18-1. (See 

P-114-135.) Plaintiff argues that this evidence is relevant to 

prove Defendants’ “intent to hinder, delay and defraud;” 

Defendants take the position that this evidence is irrelevant as 

to HTS’s assets because HTS was not a party to that lawsuit, and 

inadmissible hearsay under the Federal Rules of Evidence. 

 As above, Plaintiff is precluded from arguing that 

Defendants’ conduct in other lawsuits is probative of their 

intent to hinder and delay creditors, because such conduct is 

not related to the shareholder distribution that is the focus of 

this suit. To the extent that Plaintiff plans to use this 

evidence to show that HTS held insufficient assets, Plaintiff 

has failed to show how such evidence is not inadmissible 

hearsay. While such evidence might be conditionally admissible 

on the grounds that Plaintiff proves at trial that HTS and 

Hollywood Hands were in fact the same entity, Plaintiff has 

failed to articulate either a non-hearsay use for this evidence 
14 

or a reason this evidence is excepted or exempted from the 

definition of hearsay. 

 The Federal Rules of Evidence define hearsay as an out-ofcourt statement offered “to prove the truth of the matter 

asserted in the statement.” Fed. R. Evid. 801. It is the burden 

of the proponent of a particular piece of evidence to prove that 

the statement is admissible and is not hearsay. Idaho v. Wright, 

497 U.S. 805, 816 (1990). It appears that Plaintiff seeks to 

introduce evidence of the judgment against Hollywood Hands to 

show another claim on HTS’s assets, or the fact of another of 

HTS’s liabilities. Plaintiff has not adequately articulated an 

admissible purpose for this evidence, but may be able to do so 

in the context of trial. For this reason, the Court will deny 

both motions in limine as they concern the Hollywood Hands 

lawsuit, without prejudice to both parties’ right to raise these 

arguments again at trial. 

3. Lawsuits involving Ralph Venuto, Sr. and his Estate 

 Defendants also seek to exclude, and Plaintiff seeks to 

overrule Defendants’ objections to, Plaintiff’s Exhibit 136, 

which is a “list of cases in which Venutos or their companies 

were parties” and Plaintiff’s Exhibits 177 & 178, which are 

court filings related to the insolvency of the Estate of Ralph 

Venuto, Sr. [JFPTO at pp. 49, 51.] 
15 

 As above, Plaintiff is precluded by the law of the case 

from introducing this evidence to show HTS’s intent to hinder or 

delay creditors. To the extent that Plaintiff seeks to use this 

evidence to prove that HTS had inadequate assets after the 

shareholder distribution, Plaintiff has failed to show how these 

facts are related – Plaintiff has adduced nothing to prove that 

HTS’s assets are the same as to Mr. Venuto’s personal assets, or 

the assets of his other companies. Moreover, insofar as 

Plaintiff plans to use this evidence to prove Mr. Venuto’s 

“predisposition to hinder, delay and defraud,” Plaintiff has not 

shown that this evidence is not inadmissible character evidence 

pursuant to Fed. R. Evid. 404(a). Accordingly, the Court will 

grant Defendants’ motion and deny Plaintiff’s motion in limine 

on this point, and will bar Plaintiff from introducing evidence 

of lawsuits involving Ralph Venuto, Sr., his other companies, 

and his Estate insofar as HTS was not a party to any of them, 

nor has Plaintiff articulated a basis under Rule 406, Fed. R. 

Evid., by which these acts by Mr. Venuto, Sr. are probative of 

issues in this case. 

4. Exhibits relied upon by Ms. Brown 

 Defendants also seek to exclude, and Plaintiff seeks to 

overrule Defendants’ objections to, Plaintiff’s Exhibit 162, 

which is an “E-mail from Rebecca McDowell to Robert Vort, 

Quickbooks Password.” [JFPTO at p. 50.] Defendants contend that 
16 

this evidence is irrelevant to any issue reserved for trial, and 

that it only concerns “an issue already litigated and decided” 

with regards to Defendants’ alleged misconduct in discovery. 

Plaintiff contends that this evidence is admissible as a basis 

of its expert Shelley Brown’s report, pursuant to Fed. R. Evid. 

703. The Court will reserve decision on this dispute until it 

has the benefit of the context of trial to evaluate whether this 

evidence is relevant to Ms. Brown’s testimony and not unduly 

prejudicial or otherwise excludable under Rule 403, Fed. R. 

Evid., which the parties have not addressed in their motions. 

 Likewise, the Court will reserve decision on the 

admissibility of Plaintiff’s Exhibit 140, “Documents requested 

from Hollywood Tanning which were not received.” [JFPTO at p. 

49.] Such evidence may or may not be relevant depending on Ms. 

Brown’s testimony at trial. 

5. The Orchard Mall case 

 Defendants seek to introduce testimony regarding and 

documentary evidence from Orchard Mall, LLC v. Venuto et al., 

Docket No. L-2044-10 (N.J. Super. Ct.), another case involving 

the Defendants, in which both Plaintiff’s expert Ms. Brown and 

Defendants’ expert, Mr. Pederson, appeared. Plaintiff objects to 

the testimony of Mr. Pederson at trial to the extent he will 

testify about his conclusions in the Orchard Mall case, and 

object to the introduction of Mr. Pederson’s report and other 
17 

discovery and court filings from that case. (See Defendants’ 

Exhibits 1, 5-7, 29-32, 49-50 & 62.) 

 Plaintiff takes the position that this evidence should be 

excluded because it is not relevant. In opposition, Defendants 

principally argue that this evidence is relevant because 

Plaintiff relied on Ms. Brown’s Orchard Mall expert report in 

its pleadings, and because Ms. Brown relies on that report in 

her expert report in the instant case. In addition, Defendants 

argue that some of these documents are necessary to authenticate 

other documents in this case. Finally, Defendants argue that 

this evidence is admissible because “Plaintiff avers that these 

Exhibits are not relevant but provides no explanation.” 

 As explained above, court filings from Orchard Mall are 

inadmissible as evidence of (or against) Defendants’ fraud 

towards creditors where the case was settled and not finally 

adjudicated. (Defendants’ Exhibits 49 & 62). Of course, Ms. 

Brown and Mr. Pederson may be cross-examined on their prior 

statements in the Orchard Mall case if they are inconsistent 

with their opinions at this trial. (Defendants’ Exhibit 1.) Both 

expert witnesses will be permitted to rely on other material 

from the Orchard Mall case so long as it is the type of material 

customarily relied on by an expert in the field under Rule 703, 

Fed. R. Evid., but such facts or data need not be admissible. 

The Court will reserve decision on the admissibility of 
18 

Defendants’ other proposed exhibits related to the Orchard Mall 

case (Defendants’ Exhibits 5-7, 29-32 & 50) until it has the 

benefit of the context of trial to determine whether these 

materials are relevant and not unduly prejudicial to the 

experts’ testimony in this case. 

6. Court filings in this case 

 Next, Plaintiff seeks to exclude Defendants’ Exhibits 2-4, 

which are three of Defendants’ briefs in this case. Defendants 

take the position that such court filings are relevant because 

“they contain thorough expositions of the law of fraudulent 

transfer as it would apply to this case,” and may introduce 

their filings “to assert arguments at trial which rely on these 

decisions including: law of the case for issues already ruled on 

by this Court; prior discussions of the issues and claims 

relevant to trial including factual observations, burdens of 

proof, elements of causes of action and legal theories; and the 

findings in these decisions.” Plaintiff takes the position that 

briefs are not admissible because “argument is not evidence.” 

 The Court grants Plaintiff’s motion. Defendants’ briefs are 

not admissible evidence – they are not relevant to, or probative 

of, any fact in dispute. Defendants’ briefs are, of course, “of 

record” in the sense they are on the docket. Other than perhaps 

in a case in which an attorney’s legal malpractice is at issue 

(and the briefs would be evidence of issues raised or not 
19 

raised), there is no basis for admitting such briefs into 

evidence, and Defendants’ Exhibits 2-4 will be excluded. 

7. Case law 

 Plaintiff also seeks to exclude Defendants’ Exhibits 19-28, 

which are cases which Defendants plan to use to cross-examine 

Ms. Brown at trial. Plaintiff takes the position that case law 

is argument, not evidence, and that Ms. Brown cannot be crossexamined on case law because “she is an accountant – not an 

attorney.” Defendants argue that it is proper to use case law on 

cross examination to impeach Ms. Brown’s credibility because Ms. 

Brown relies on the treatise Pratt, Valuing a Business, in her 

expert report, and Pratt states that “Valuation decisions are 

affected by a wide variety of legal decisions and principles.” 

The Court is not inclined to permit Defendants to crossexamine Ms. Brown on legal issues reflected in judicial 

opinions. She is not testifying as an expert on the legal 

standards, and indeed such issues are for the Court in this 

case. Pointing out language in prior opinions in unrelated cases 

to an accounting expert witness who expresses no opinion as to 

what the law is, will be impermissible as beyond the scope of 

the expert’s opinion and expertise. Plaintiff’s motion to 

exclude Defendants’ Exhibits 19-28 from being used to crossexamine Ms. Brown will be granted. Defendants may renew their 

request to use such prior court opinions for this purpose if Ms. 
20 

Brown’s testimony purports to identify legal, rather than 

accounting, principles. 

8. Miscellaneous documents 

 Finally, the parties dispute the admissibility of 

Defendants’ Exhibits 53-55, 94, 126, and 129, which appear to be 

a variety of miscellaneous correspondence, court documents, and 

documents for Tan Holdings. [JFPTO at pp. 59-65.] The parties 

simply state that these documents are either “relevant” or “not 

relevant,” without further explanation of what these documents 

are, how they are related to the case, and how and why they are 

admissible. For this reason, the Court will deny Plaintiff’s 

motion as premature with respect to these exhibits and will 

defer decision unless and until these documents are sought to be 

introduced at trial. 

CONCLUSION 

 An accompanying Order will be entered. 

 May 5, 2017 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge