The Unavailable Expertise of Daniel Fischel

Late in the morning, Judge Nottingham excused the jury and ruled from the bench that Daniel Fischel could not testify as an expert witness. This ruling ultimately created the premature termination of the trial today at noon since Nacchio’s attorneys were not prepared to call its next witness believing that Fischel would take the rest of the day to testify. When defense counsel stated they were surprised by the judge’s ruling, Judge Nottingham stated: “If this came as a surprise to you, you can have knocked me over with a feather.” The judge noted that this is another example of the lack of preparation exhibited by the trial defense counsel "causing a waste of the jury's time."

Consequently, it is worthwhile to understand the basis for the judge’s ruling to exclude Daniel Fishness as an expert witness. The Prosecution filed a 63 page brief seeking to exclude Fischel on the relatively simple basis that defense counsel’s support for qualifying Fischel as an expert was woefully inadequate.  Judge Nottingham chided the Prosecution for its efforts, viewing them as clear overkill.  

Then, Judge Nottingham delineated the basis for his decision. The judge stated that Rule 16 requires a showing that the expert witness applied “reliable principals and methods” and “no such showing by the defense was made.” Judge Nottingham stated that the testimony to be offered by Daniel Fischel was more in the nature of closing arguments since Fischel would be testifying that Nacchio had no economic incentive to trade on material nonpublic information or that the sales did not increase during the time of the applicable sales of Qwest stock.

The judge went on to state that “these are conclusions that the jury should draw themselves.” Finally, Judge Nottingham admonished defense counsel stating that “the use of an expert witness for the principal purpose of restating facts already in evidence is improper.”