Nolaluna, LLC v. E. Howell Crosby, Chaffe McCall, LLP, and Abc Insurance Company

NOLALUNA, LLC * NO. 2024-CA-0555

VERSUS * COURT OF APPEAL

E. HOWELL CROSBY, * FOURTH CIRCUIT
CHAFFE MCCALL, LLP, AND
ABC INSURANCE COMPANY * STATE OF LOUISIANA

*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-04216, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Rachael D. Johnson)

Randall A. Smith
Dylan T. Leach
Andre M. Stolier
SMITH & FAWER, L.L.C.
201 St. Charles Avenue, Suite 3702
New Orleans, LA 70170

Emile A. Bagneris, III
Suzette P. Bagneris
THE BAGNERIS FIRM, LLC
1929 Jackson Ave
New Orleans, LA 70113

COUNSEL FOR PLAINTIFF/APPELLANT

James R. Swanson
John Bel Edwards
Sharonda R. Williams
Rebekka C. Veith
C. Hogan Paschal
FISHMAN HAYGOOD L.L.P.
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170

COUNSEL FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED
MAY 6, 2025

This is a legal malpractice case. Plaintiff/appellant, Nolaluna, LLC
JCL
(“Nolaluna”), appeals the May 17, 2024 and May 21, 2024 judgments excluding
SCJ

RDJ two expert witnesses from testifying at trial, and the May 17, 2024 judgment

granting summary judgment and dismissing all of Nolaluna’s claims against

defendants/appellees, E. Howell Crosby (“Crosby”) and Chaffe McCall, LLP

(“Chaffe”). For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

This litigation stems from Nolaluna’s retention of Crosby and the law firm,

Chaffe, to represent Nolaluna in connection with launching its circus nightclub

business. According to Nolaluna, Crosby failed to obtain a conflict of interest

waiver or give Nolaluna advice to obtain separate legal counsel in connection with

Crosby’s own financial interest in a business, Crosby Land & Resources, LLC

(“Crosby Land”), which provided financing to Nolaluna. Nolaluna alleges that

Crosby failed to provide adequate advice regarding the terms and consequences of

said financing, which effectively precluded it from obtaining additional investment

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and financing and, in 2016, led to the failure of Nolaluna’s business before it

opened, and thereafter, Crosby Land assumed the lease on the property that

Nolaluna intended for its business premises. Nolaluna claims that, through these

conflicts of interest, Crosby and Chaffe deprived Nolaluna of business

opportunities resulting in the business failure and ensuing damages.

Nolaluna filed its petition for damages on May 2, 2017, alleging negligence,

breach of contract, breach of fiduciary duty, and legal malpractice against Crosby

and Chaffe. To support its claims, Nolaluna retained three expert witnesses, two of

whom included Stan Feig (“Feig”) and Ralph Litolff (“Litolff”). Feig was retained

as an expert in the entertainment and live theater industry to provide insight into

the viability of Nolaluna’s business model. Feig, who had more than 50 years of

experience in the entertainment business, including dinner cirques in other cities,

reviewed Nolaluna’s business plan and opined that the dinner cirque concept was

viable. Litolff, a forensic accountant, was retained as an expert in economic and

financial analysis to testify regarding the financial viability of the project and to

assess the damages Nolaluna incurred.

This litigation was eventually set for trial on June 17, 2024. Meanwhile, on

April 12, 2024, Crosby and Chaffe filed the three motions at issue in this appeal:

(1) Motion for Summary Judgment that Nolaluna’s Future Lost Profits Damages

are Impermissibly Speculative; (2) Motion to Exclude the Testimony of Nolaluna’s

Circus Expert Stan Feig; and (3) Motion to Exclude the Testimony of Nolaluna’s

Damages Expert Ralph Litolff. Collectively, through these motions, Crosby and

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Chaffe argued that neither witness was qualified to provide expert testimony

supporting Nolaluna’s claims for damages, and that the evidence of Nolaluna’s

damages was too speculative to prevail at trial.

On May 13, 2024, the district court held hearings on both motions to

exclude. No witnesses testified, and the district judge granted both motions in open

court. On May 17, 2024, the hearing proceeded on the motion for summary

judgment, which the district court granted and signed a written judgment on the

same date. Also, on May 17, 2024, the district court rendered a written judgment

granting the motion to exclude Litolff’s testimony. On May 21, 2024, the district

court signed the judgment granting the motion to exclude Feig’s testimony. This

appeal followed.

LAW AND ANALYSIS

Assignments of Error

On appeal, Nolaluna sets forth three assignments of error, as follows:

1. The district court’s exclusion of Nolaluna’s industry
expert, Stan Feig, was an abuse of discretion.

2. The district court’s exclusion of Nolaluna’s damages
expert, Ralph Litolff, was an abuse of discretion.

3. The district court erred in granting summary judgment on
Nolaluna’s damages.

Standards of Review and Applicable Legal Principles

This appeal involves the interplay between a motion to exclude expert

testimony (a Daubert1 motion) and a motion for summary judgment. Through its

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993).

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motions, Crosby and Chaffe sought to exclude the testimony of two of Nolaluna’s

expert witnesses and obtain the dismissal of Nolaluna’s claims on the basis of its

inability to prove damages.2 A motion for summary judgment and a Daubert

motion each serves a distinct function and is subject to a particular procedure,

which we discuss herein.

Daubert Motion Procedure

An appellate court reviews a lower court’s ruling on a motion to exclude an

expert witness’s testimony for an abuse of discretion. Anderson v. City of New

Orleans, 24-0252, p. 4 (La. App. 4 Cir. 5/1/24), 390 So.3d 402, 405. However,

legal error with respect to the admissibility of expert testimony is reviewed de

novo. Allen v. Eagle Inc., 22-0386, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d 808,

814.

A Daubert motion uses “the standards set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and

adopted by our Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122

(La. 1993),” and enlists the district court to “perform a ‘gatekeeping’ function to

‘ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.’ ” Allen, 22-0386, p. 9, 346 So.3d at 814-15 (quoting

Versluis v. Gulf Coast Transit Co., 08-0729, p. 5 (La. App. 4 Cir. 7/29/09), 17

2 See generally Cox, Cox, Filo, Camel & Wilson, LLC v. Louisiana Workers’ Comp. Corp., 21-

00566, p. 11 (La. 3/25/22), 338 So.3d 1148, 1157 (“loss of business income or profits is a type of
special damages that must be proved with reasonable certainty and cannot be based on
speculation or conjecture”).

4

So.3d 459, 463 and citing Daubert, 509 U.S. at 589, 113 S.Ct. at 2795). Using this

procedure, a party may challenge a witness’s qualifications to testify as an expert

by knowledge, skill, experience, training, or education or the methodology used by

the expert in reaching his opinion. See generally Melerine v. Tom’s Marine &

Salvage, LLC, 20-00571, p. 16 (La. 3/24/21), 315 So.3d 806, 817; La. C.C.P. art.

1425.

The relevant procedure is set forth in La. C.C.P. art. 1425(F), which, at the

time of the hearings in dispute,3 provided in relevant part:

(1) Any party may file a motion for a pretrial hearing to
determine whether a witness qualifies as an expert or
whether the methodologies employed by such witness are
reliable under Articles 702 through 705 of the Louisiana
Code of Evidence. The motion shall be filed not later
than sixty days prior to trial and shall set forth sufficient
allegations showing the necessity for these
determinations by the court.

(2) The court shall hold a contradictory hearing and shall
rule on the motion not later than thirty days prior to the

3 As amended in Acts 2024, No. 371, § 1, La. C.C.P. art. 1425(F)(1) currently states:

A party seeking to challenge whether a witness qualifies as an
expert or whether the methodologies employed by the witness are
reliable under Code of Evidence Articles 702 through 705 shall file
a motion for a pretrial hearing. The motion shall be filed not later
than sixty days prior to trial and shall set forth sufficient
allegations showing the necessity for these determinations by the
court.

The 2024 comment to this article explains:

The amendment to Paragraph F of this Article makes clear that a
pretrial hearing is necessary to determine whether a witness
qualifies as an expert or whether the methodologies employed by
the witness are reliable. This would change the result reached by
the First Circuit in Williams v. State Farm Mutual Automobile
Insurance Company, 322 So.3d 795, 797 (La. App. 1 Cir. 2021), in
which the court held that the use of the permissive “may” did not
mandate a pretrial motion to challenge the qualifications of an
expert.

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trial. At the hearing, the court shall consider the
qualifications and methodologies of the proposed witness
based upon the provisions of Articles 104(A) and 702
through 705 of the Louisiana Code of Evidence. For
good cause shown, the court may allow live testimony at
the contradictory hearing.

(3) If the ruling of the court is made at the conclusion of
the hearing, the court shall recite orally its findings of
fact, conclusions of law, and reasons for judgment. If the
matter is taken under advisement, the court shall render
its ruling and provide written findings of fact,
conclusions of law, and reasons for judgment not later
than five days after the hearing.

Louisiana Code of Evidence Article 702(A) 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 the proponent
demonstrates to the court that it is more likely than not
that:

(1) 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;

(2) The testimony is based on sufficient facts or data;

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

(4) The expert’s opinion reflects a reliable application of
the principles and methods to the facts of the case.

The Supreme Court recognized that “[a]n expert may provide testimony

based on information obtained from others, and the character of the evidence upon

which the expert bases an opinion affects only the weight to be afforded the

expert’s conclusion.” Certain Underwriters at Lloyd’s London v. United States

Steel Corp., 19-1730, p. 3 (La. 1/28/20), 288 So.3d 120, 122 (citation omitted).

Moreover, “the character of the evidence upon which the expert bases an opinion

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affects only the weight to be afforded the expert’s conclusion … and may serve as

a basis for attack by defendants on cross-examination at trial, but it does not make

his opinion evidence inadmissible under Daubert.” Allen, 22-0386, p. 10, 346

So.3d at 815 (quoting MSOF Corp. v. Exxon Corp., 04-0988, p. 16 (La. App. 1 Cir.

12/22/05), 934 So.2d 708, 720).

Summary Judgment Procedure

A court of appeal reviews a district court’s ruling on a motion for summary

judgment de novo. Patrick v. Triay, 22-0766, p. 4 (La. App. 4 Cir. 1/26/23), 357

So.3d 872, 875. The purpose of the summary judgment procedure is to “pierce the

pleadings and to assess the evidence to determine if there are any genuine issues of

material fact requiring a trial.” Id., 22-0766, p. 5, 357 So.3d at 875. A genuine

issue of material fact is one as to which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, there is no need for a trial on

that issue and summary judgment is appropriate. Larson v. XYZ Ins. Co., 16-0745,

pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416 (citing Hines v. Garrett, 04-0806, p. 1

(La. 6/25/04), 876 So.2d 764, 765-66). A district court cannot make credibility

determinations or weigh conflicting evidence on a motion for summary judgment.

Allen, 22-0386, p. 5, 346 So.3d at 812.

In summary, the district court examines the motion, memorandum, and

properly admitted supporting documents, and – without weighing conflicting

evidence or assessing credibility – determines whether the mover is entitled to

judgment under the applicable substantive law. See Patrick, 22-0766, pp. 4-5, 357

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So.3d at 875; Allen, 22-0386, p. 5, 346 So.3d at 812; La. C.C.P. art. 966(A)(3). The

burden of proof rests with the mover, but if the mover will not bear the burden of

proof at trial, the mover must only point out the absence of factual support for one

or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(D)(1).

The burden then shifts to the adverse party who has the burden to produce

sufficient factual support to establish the existence of a genuine issue of material

fact or that the mover is not entitled to judgment as a matter of law. Bercy v. 337

Brooklyn, LLC, 20-0583, pp. 3-4 (La. App. 4 Cir. 3/24/21), 315 So.3d 342, 345

(citing La. C.C.P. art. 966(D)(1)).

The current version of Article 966 contains mandatory deadlines for filing

and serving a motion for summary judgment, opposition, and reply, and for

conducting a summary judgment hearing.4 The record shows no dispute that the

motions were filed and heard timely within the mandatory pretrial deadlines in La.

4 Under La. C.C.P. art. 966:

B. Unless extended by the court and agreed to by all of the parties,
a motion for summary judgment shall be filed, opposed, or replied
to in accordance with the following provisions:
(1) Except for any document provided for under Subsubparagraph
(A)(4)(b) of this Article, a motion for summary judgment and all
documents in support of the motion shall be filed and served on all
parties in accordance with Article 1313(A)(4) not less than sixty-
five days prior to the trial.
…
C. (1) Unless otherwise agreed to by all of the parties and the
court:
(a) A contradictory hearing on the motion for summary judgment
shall be set not less than thirty days after the filing and not less
than thirty days prior to the trial date.
(b) Notice of the hearing date shall be served on all parties in
accordance with Article 1313(C) or 1314 not less than thirty days
prior to the hearing.
(2) For good cause shown, the court may order a continuance of
the hearing.
(3) The court shall render a judgment on the motion not less than
twenty days prior to the trial.

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C.C.P. arts. 1425(F) and 966(B)-(C). Even so, in 2023, the legislature amended La.

C.C.P. art. 966 to add Subsection (D)(3), explicitly requiring that Daubert

challenges to summary judgment evidence must be heard and disposed of before

the summary judgment hearing:

If a timely objection is made to an expert’s qualifications
or methodologies in support of or in opposition to a
motion for summary judgment, any motion in accordance
with Article 1425(F) to determine whether the expert is
qualified or the expert’s methodologies are reliable shall
be filed, heard, and decided prior to the hearing on the
motion for summary judgment.

La. C.C.P. art. 966(D)(3).

Summary Judgment Motion Regarding Damages

“As a general rule ‘damages for loss of profits may not be based on

speculation and conjecture; however, such damages need be proven only within

reasonable certainty.’ ” PVCA, Inc. v. Pac. W. TD Fund LP, 20-0327, p. 14 (La.

App. 4 Cir. 1/20/21), 313 So.3d 320, 331 (quoting Breton Sound Oyster Co., LLC

v. Stiel Ins. Co. of New Orleans Inc., 17-0955, p. 14 (La. App. 4 Cir. 12/12/18),

299 So.3d 80, 90). “Broad latitude is given in proving lost profits because this

element of damages is often difficult to prove and mathematical certainty or

precision is not required.” Id. “The allowance of loss of profits as an element of

damages is more liberal in actions purely in tort, as opposed to actions for breach

of contract.” Breton Sound Oyster Co., LLC, 17-0955, p. 14, 299 So.3d at 90

(quoting Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La. App. 4th

9

Cir. 1985)). The plaintiff bears the burden of proof that the loss of profits is “more

probable than not.” Id.

Importantly, Crosby and Chaffe filed their motion for summary judgment

and motions to exclude on the same date, 66 days before trial was scheduled. The

following timeline is relevant to the issues in this appeal.

April 12, 2024 motion for summary judgment and motions to exclude filed

May 13, 2024 hearing on motions to exclude; rulings from the bench

May 17, 2024 hearing on motion for summary judgment

May 17, 2024 summary judgment signed

May 17, 2024 judgment excluding Litolff’s testimony signed

May 21, 2024 judgment excluding Feig’s testimony signed

June 17, 2024 scheduled trial date

We find that Crosby and Chaffe introduced conflicting evidence of

Nolaluna’s damages, which precluded summary judgment. Specifically, Crosby

and Chaffe attached to their motion the expert reports and deposition testimony of

both Feig and Litolff, who opined respectively that Nolaluna’s business concept

was viable and projected $15 million in future damages from lost profits. Crosby

and Chaffe contended that these opinions of Nolaluna’s damages were

impermissibly speculative and failed to demonstrate that Nolaluna met its burden

of proof for trial. The effect of Crosby and Chaffe introducing the reports and

testimony themselves is that they did not properly object to the admissibility of the

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expert testimony; they sought to have the district court review it and deem it

insufficient to meet Nolaluna’s burden of proof.

Under La. C.C.P. art. 966(D)(2), “[t]he court shall consider only those

documents filed or referenced in support of or in opposition to the motion for

summary judgment but shall not consider any document that is excluded pursuant

to a timely filed objection.” Article 966(D)(2)-(3) provides two means of objecting

to summary judgment evidence:

(1) An “objection to a document shall be raised in a timely filed opposition
or reply memorandum.” La. C.C.P. art. 966(D)(2).

(2) An “objection … to an expert’s qualifications or methodologies in
support of or in opposition to a motion for summary judgment” is
brought under La. C.C.P. art. 1425(F) and “shall be filed, heard, and
decided prior to the hearing on the motion for summary judgment.” La.
C.C.P. art. 966(D)(3).

Crosby and Chaffe sought to implicate paragraph (D)(3): filing a separate

motion objecting to the expert’s qualifications or methodologies. They did not,

however, object to the admissibility of the expert opinions in any opposition or

reply as contemplated in paragraph (D)(2). Quite the opposite, they introduced the

reports and testimony themselves via their own summary judgment motion. The

district court recognized this at the hearing, and the transcript reflects that no party

objected to any summary judgment evidence, and the district court considered all

evidence introduced.

We find that an objection to an expert’s qualifications or methodology under

article 1425(F) is a distinct, separate inquiry and is not a replacement for an

objection to the admissibility of summary judgment evidence under article

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966(D)(2). As noted above, four days before the summary judgment hearing, the

district court conducted a Daubert hearing and orally granted the motions to

exclude Feig’s and Litolff’s testimony at trial. However, Nolaluna’s experts’

opinions were part of the summary judgment evidence, and the district court was

required to consider them in determining whether any genuine issue of material

fact existed for trial.

In the absence of an objection raised in a timely opposition or reply

memorandum, the district court is “statutorily obligated to consider the expert’s

opinions” introduced in support of a summary judgment motion. Sketchler v.

Hernandez, 20-0292, p. 8 (La. App. 1 Cir. 5/19/21), 326 So.3d 912, 918 (citing La.

C.C.P. art. 966(D)(2) and Mariakis v. N. Oaks Health Sys., 18-0165, p. 11 (La.

App. 1 Cir. 9/21/18), 258 So.3d 88, 96). “At that point, in determining whether the

evidence creates a genuine issue of material fact, the trial court cannot make

credibility determinations, evaluate testimony, or otherwise weigh the evidence.”

Sketchler, 20-0292, p. 8, 326 So.3d at 918.

Under La. C.C.P. art. 966(D)(2), the lower court properly considered the

documents filed in support of and in opposition to the motion for summary

judgment to which no objection was made. However, the district court erred in

overlooking that the expert testimony submitted by Crosby and Chaffe

demonstrated that genuine material issues regarding damages remained. Feig

provided opinion testimony that Nolaluna’s business concept was viable and would

be profitable, and Litolff provided opinion testimony providing projected damages

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calculations. The district court was not permitted to weigh the evidence or assess

the experts’ credibility. In doing so, district court erroneously conflated the

standard for summary judgment with the standard for excluding an expert witness

from testifying at trial. With the opinion testimony under the district court’s

consideration, the summary judgment evidence demonstrated that genuine issues

of material fact remained as to Nolaluna’s damages. Summary judgment was

improper and must be reversed.

We further acknowledge our jurisprudence finding that “an unresolved

Daubert issue may render consideration of a summary judgment motion

premature.” Patrick, 22-0766, p. 7, 357 So.3d at 877 n. 5 (citing Dehart v. Jones,

19-789, p. 17 (La. App. 3 Cir. 12/16/20), 310 So.3d 658, 671 and Guardia v.

Lakeview Reg’l Med. Ctr., 08-1369, p. 8 (La. App. 1 Cir. 5/8/09), 13 So.3d 625,

631). In hearing and deciding the Daubert motions essentially contemporaneously

with the motion for summary judgment – only one month before trial and after all

discovery deadlines had elapsed – Nolaluna was left with no recourse to obtain any

other expert or seek a continuance of trial to do so. Compare Hooper v. Travelers

Ins. Co., 10-1685, pp. 8-9 (La. App. 4 Cir. 9/28/11), 74 So.3d 1202, 1207. Under

the procedural circumstances facing this Court, we are disinclined to “permit

technical pleading rules to triumph over actual justice[.]” Patrick, 22-0766, p. 9,

357 So.3d at 877 (quoting Lamb v. Lamb, 430 So.2d 51, 54 (La. 1983)).

The Louisiana legislature was mindful of these concerns in enacting La.

C.C.P. art. 966(D)(3), explicitly requiring that Daubert challenges to summary

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judgment evidence must be heard and disposed of before the summary judgment

hearing. In the comments to this 2023 amendment, the legislature instructed

courts: “[t]o avoid any possible conflict between the time delays in this Article and

Article 1425(F), the court should set appropriate deadlines for the Article 1425(F)

hearing in a scheduling or pretrial order.” La. C.C.P. art. 966, cmt (g) (2023). We,

therefore, reverse the district court’s grant of summary judgment and remand this

matter for further proceedings consistent with this opinion.

Motions to Exclude the Testimony of Stan Feig and Ralph Litolff

On May 13, 2024, the district court held a hearing on the motions to exclude

the testimony of Feig and Litolff, retained by Nolaluna as experts. The district

court rendered rulings in court, later reflected in written judgments, and provided

oral findings and reasons as contemplated in La. C.C.P. art. 1425(F)(3).

The district court found that Feig possessed the qualifications and

experience to be deemed an expert in the entertainment industry capable of opining

on Nolaluna’s projections of future profitability, with the caveat that he was not

qualified to testify about tax credit financing or the viability of a bar ancillary to

the dinner circus. That said, the district court took issue with the methodology Feig

used. The district court determined that Feig’s opinions were not based on

sufficient facts or were not the product of reliable principles and methods,

reasoning that Feig did not undertake an independent analysis of projected

customer demand for a dinner circus or physically inspect the property to assess

the cost of the construction needed on the leased property. Nolaluna points out that

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Feig’s expertise is necessarily experience-based. See Kanda Const., LLC v. Gebre,

15-1307, p. 9 (La. App. 4 Cir. 7/20/16), 197 So.3d 791, 796 (“[a] combination of

specialized training, work experience and practical application of the expert’s

knowledge can combine to demonstrate that a person is an expert”). Feig reviewed

publicly available ticket sales data from other markets on the West Coast,

Chicago,5 and Vancouver, along with other New Orleans venues, and used it to

validate Nolaluna’s revenue projections concerning ticket prices and operating

expenses. The district court evidently rejected Nolaluna’s characterization of

Feig’s review as an analysis of strategic advantages of Nolaluna’s intended

business location, New Orleans’ established entertainment infrastructure,

neighborhood demographics, audience characteristics, and cultural alignment with

Nolaluna’s business concept. Instead, the lower court looked to this Court’s

holding in Manuel v. Fat Catz Music Club, Inc., 22-0288 (La. App. 4 Cir. 8/3/22),

366 So.3d 264, to conclude that Feig’s reliance on financial projections that

Nolaluna principal, Stanley Morris, prepared were improper.

As to Litolff, the district court’s oral ruling did not specifically address the

proposed expert’s qualification by knowledge, skill, experience, training or

education, but it was undisputed that Litolff is a certified public accountant. The

district court addressed only Litolff’s methodology, determining again that his

opinions were not based on sufficient data and information. Relying again on

5 The parties argue at length about the relevance and unprofitability of Feig’s cirque venture in

Chicago, particularly in the wake of the COVID-19 pandemic. However, as the district court
judge did not address this in her oral findings, such arguments are not properly before us.

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Manuel, the district court determined that Litolff improperly relied on Morris’s

projections and Feig’s opinions. The district court noted that Litolff’s analysis

encompassed verification of these projections using aggregated data from other

businesses in the entertainment field, compiled by the Risk Management

Association, a national organization that compiles such data for risk professionals

at financial institutions. The district court concluded that Litolff’s analysis method

was insufficient because the aggregated data did not permit Litolff to verify

individual line items in Nolaluna’s pre-litigation financial projections.6

We find the district court’s application of Manuel tremendously broad, as

the facts of Manuel are particularly egregious. Of particular concern in Manuel,

past financial statements of the plaintiff’s business existed, which the purported

expert ignored and failed to address in his opinion testimony; rather, he relied

entirely on plaintiff’s own projections of future earnings (as compiled by an

unidentified accountant) without conducting any independent analysis of the

projections. Importantly, no summary judgment was at issue, only a decision as to

whether an economic expert whose inputs are merely plaintiff’s own estimations of

his own financial projections can testify as to his opinions as an expert. While

Manuel stands for the proposition that a plaintiff cannot simply submit his own

estimates of his damages cloaked as expert opinion, we cannot say based on the

6 But see In re AES Thames, L.L.C., No. 11-10334 (KJC), 2016 WL 11595116, at *8 (Bankr. D.

Del. Oct. 28, 2016)(“[o]ther courts have determined that opinions based on data from the Risk
Management Association [were] reliable”)(collecting cases).

16

evidence presented that Manuel is similar to this case, and the district court erred in

relying on it to exclude Feig and Litolff from testifying.

Moreover, numerous courts have frowned upon excluding an expert at the

summary judgment stage, which would “improperly usurp the function of the

factfinder at trial, which is to weigh the evidence and expert opinions in order to

determine whether the plaintiffs have met their burden” of proving the elements of

their claims. Carpenter v. Thomas, 22-0872, p. 13 (La. App. 1 Cir. 3/13/23), 362

So.3d 977, 985 (citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 17

(La. 2/29/00), 755 So.2d 226, 236); Aldridge v. Greenbrier Hosp., L.L.C., 23-0526,

p. 16 (La. App. 1 Cir. 3/13/24), 385 So.3d 712, 725, writ denied, 24-00480 (La.

9/17/24), 392 So.3d 633, and writ denied, 24-00484 (La. 9/17/24), 392 So.3d 634,

and writ denied, 24-00492 (La. 9/17/24), 392 So.3d 635; McKay v. Hosp. Serv.

Dist. No. 1 of Tangipahoa Parish, 23-1244, p. 11 (La. App. 1 Cir. 10/11/24), ---

So.3d ----, ----, 2024 WL 4471779, at *5; Crawford v. Ordoyne, 24-0716, p. 12

(La. App. 1 Cir. 3/20/25), --- So.3d ----, ----, 2025 WL 865680, at *6. Such a result

is particularly concerning where plaintiffs claim that defendants intentionally

caused their business failure before plaintiffs were ever able to generate any

financial records, rendering any proof of lost profits virtually impossible without

expert opinion. Considering the unique misconduct alleged, the courts must not

foreclose such plaintiffs from introducing evidence of projected damages by

excluding their expert testimony wholesale so close to trial. We recognize, as in

other cases, that “[v]igorous cross-examination, presentation of contrary evidence,

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and careful instruction on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.” See Carpenter, 22-0872, p. 12,

362 So.3d at 985 (citing Daubert, 509 U.S. at 596, 113 S.Ct. at 2798 and Blair v.

Coney, 19-00795, p. 9 (La. 4/3/20), 340 So.3d 775, 781).

In conclusion, Feig and Litolff’s methodologies met the Daubert standard:

Feig used public data, market comparisons, and decades of industry experience to

assess Nolaluna’s business viability, while Litolff relied on recognized

benchmarking tools and third-party financial data to support his damages analysis.

Their reliance on projections was appropriate given the absence of historical

financials for a business that never launched. The district court’s exclusion of these

experts based on concerns that go to weight rather than admissibility misapplied

Daubert and improperly relied on the distinguishable Manuel case. We, therefore,

find the district court abused its discretion in excluding these witnesses’ testimony

at this stage.

CONCLUSION

Therefore, for the reasons set forth in this opinion, we reverse the May 17,

2024 and May 21, 2024 judgments of the district court excluding the testimony of

Feig and Litolff, and the May 17, 2024 judgment granting summary judgment. We

remand this case to the district court for further proceedings consistent with this

opinion.

REVERSED AND REMANDED

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