Summers v. UAL Corporation, et al., (2005 WL 2648670) (N.D. Ill., 10/12/05), pitted the United Airlines ESOP participants against the plan trustee, State Street Bank and Trust Company, among others. In their complaint, the plaintiffs claimed that when UAL’s stock prices declined prior to UAL’s filing for bankruptcy, the UAL ESOP Committee, State Street Bank (the plan trustee), and others failed to take appropriate action to protect plan assets (e.g., by diversifying the ESOP’s stockholdings and shedding UAL shares). All defendants except State Street Bank settled.
Plaintiffs and State Street filed cross-motions for summary judgment, and State Street Bank moved to strike or exclude the opinions and testimony of Plaintiffs’ expert witness, Lucian Morrison (“Morrison”), who opined that “UAL’s bankruptcy was imminent in October 2001, and that Defendants failed to act prudently by neglecting to sell the UAL stock to protect the interests of the Plan participants.” United’s bankruptcy imminent in October, 2001? Doesn’t sound too unreasonable if you were in the bankruptcy or turnaround business at the time, does it? Now just try and prove it!
In granting State Street’s motion to exclude the Morrison’s opinion, Judge Deryeghiayan reminded us that “the district court acts as a ‘gatekeeper with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission,’ ” and opined:

Morrison has prior experience acting as a professional fiduciary and has managed bank and trust activities when working for several banking and trust companies. He has also served as a trustee for employee benefit plans. However, State Street correctly points out that Morrison’s opinions range far beyond the proper actions of a fiduciary and delve into areas of bankruptcy, insolvency, economics, and the securities industry. Plaintiffs have not shown that Morrison possesses the requisite “knowledge, skill, experience, training, or education” in such specialized areas. Fed. R. Evid. 702. The bankruptcy of UAL and its surrounding circumstances are key factors in assessing State Street’s actions. Morrison is wholly deficient to offer expert testimony regarding such matters. Although he has some experience that has touched on the areas of economics, the securities industry, and corporate bankruptcies, such experience is not sufficient to qualify him as an expert in such areas. The bankruptcy of UAL is such an integral part of the claims in the instant action that a complete and thorough understanding of such matters is crucial to making any sort of informed testimony concerning the propriety of Defendants’ actions.
Morrison’s lack of expertise in bankruptcy matters and related matters is illustrated by the deficiency in his methodologies utilized in forming his opinions in the instant action. Morrison attempts to sidestep the necessary detailed expert analysis of UAL’s financial condition by relying on external factors and extraneous evidence, such as statements made in a letter by UAL’s CEO. The trier of fact can read and analyze such letters without the assistance of an expert, and Morrison’s speculation based on such evidence is nothing more than a guess. Morrison has not shown to the court that he utilized any reliable tests or methodologies to support his opinions. Morrison has not shown, for example, that he has utilized a methodology commonly employed by experts in analyzing bankruptcy situations. Morrison did not conduct a financial analysis of UAL’s books or apply any reliable methodology in arriving at his opinions. Instead, Morrison offers his own unsupported theories and conclusions, and offers nothing of benefit to the trier of fact. The trier of fact is presumed to be able to think and reason on its own. An expert is not employed in litigation to “think” for the trier of fact. Rather, an expert may only assist the trier of fact in its understanding of the facts and issues at hand. So called “experts” such as Morrison are not entitled to weigh in with their half-baked opinions in order to attempt to sway the trier of fact in its analysis.
Plaintiffs apparently recognize the impropriety of offering Morrison as an expert and, in an effort to salvage at least some of Morrison’s testimony, Plaintiffs ask the court to not engage in a “wholesale exclusion” of Morrison’s testimony. However, we agree with State Street that Morrison’s opinions offer virtually nothing to the trier of fact and his uneducated speculation presented under the cloak of an “expert” would only be prejudicial to State Street. Although Morrison claims to have experience and training in certain basic areas that are the focus of the instant action, his lack of expertise in such areas renders all of his conclusions suspect. Therefore, we grant State Street’s motion to exclude the opinions and testimony of Morrison.

The Court also granted State Street’s motion for summary judgment on the merits, finding that State Street was not liable to the Plaintiffs for losses sustained by the ESOP. The Court stated:

As Plaintiffs acknowledge, State Street was required by the Plan documents to invest the Plan funds in UAL stock. State Street could have sold the UAL stock sooner only if it chose to override the Plan’s provisions based upon extraordinary circumstances. … If State Street had chosen to sell the UAL stock sooner and that decision proved to be premature, State Street would have breached its fiduciary duty to follow the directions of the Plan. …
Plaintiffs’ contention that Defendants should have sold UAL stock in October 2001 is mainly based upon a letter written by UAL CEO. … Plaintiffs contend that the letter clearly showed that UAL was facing imminent financial collapse. However, State Street has provided ample evidence that indicates that during the fall of 2001, UAL was not facing imminent financial collapse. We are not, as Plaintiffs suggest, simply giving more weight to State Street’s position because they have presented more expert opinions in their favor. Although the opinions of Morrison are unreliable to such an extent that they cannot be presented to the trier of fact, we have not simply accepted the veracity of State Street’s expert opinions in default. Instead, we have thoroughly examined all of the opinions and conclusions of all of the experts, and have analyzed each of the expert’s conclusions individually. The evidence presented by State Street is such that no reasonable trier of fact could conclude that UAL was facing imminent bankruptcy in October 2001. Our conclusions would not be altered even if we had considered Morrison’s testimony and opinions. For instance, the evidence undeniably shows that UAL had a realistic expectation of receiving the grants and loan funds that it sought. The evidence also clearly shows that UAL had a strong cash position and the market indicators did not show that UAL was facing imminent bankruptcy.

© Steve Jakubowski 2005
Hat tip to Ryan Zeller