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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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