Haffner's Service Stations, Inc. - Page 28




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               The general data suffers from similar infirmities.  In                 
          addition to the fact that Fishman acknowledged at trial that the            
          general data was unreliable, he stated specifically that he knew            
          that Robert Morris’s publication warns readers explicitly that              
          the data is not statistically accurate and should not be relied             
          upon or used in a legal proceeding.  Fishman attempted to                   
          rationalize his reliance on the Robert Morris compilation by                
          stating:  “Unfortunately, I had to use what was available.  It              
          was that and the–-were the best stuff around.  I have to concede            
          that they’re flawed.”  We find this attempt unavailing.                     
               Much of the purported data that Fishman relied upon in                 
          reaching his conclusion also never made its way into evidence.              
          Although an expert need not rely upon admissible evidence in                
          forming his or her opinion, Fed. R. Evid. 703, we must rely upon            
          admitted evidence in forming our opinion and, in so doing, may              
          not necessarily agree with an expert whose opinion is not                   
          supported by a sufficient factual record.  The mere fact that the           
          Court admits an expert’s opinion into evidence does not mean that           
          the underlying facts upon which the expert relied are also                  
          admitted into evidence.  Anchor Co. v. Commissioner, 42 F.2d 99             
          (4th Cir. 1930); Rogers v. Commissioner, 31 B.T.A. 994, 1006                
          (1935); see United States v. Scheffer, 523 U.S. 303, 317 n.13               
          (1998) (whereas expert opinion is considered evidence, the facts            
          upon which such an expert relies in forming that opinion are not            






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