-316-
“in the interest of determining a conservative value”, he
admitted that his selection was inherently subjective and that
the value he arrived at reflects a speculative value.
Ultimately, we are led to the conclusion that Mr. Crawford’s
expert testimony lacks a sufficiently reliable basis upon which
to reach an opinion as to the value of the NOLs in SMHC. See
United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003)
(“a witness ‘relying solely or primarily on experience’ must
‘explain how that experience leads to the conclusion reached, why
that experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.’” (quoting Fed.
R. Evid. 702, Adv. Comm. Note.)). Accordingly, we exclude Mr.
Crawford’s expert report and testimony.216
2. Ms. Nemschoff
Ms. Nemschoff is an entertainment attorney who has
represented a wide variety of institutional and individual
clients in both domestic and international transactions in film,
television, the visual arts, publishing, music, and multimedia.
She has been in practice for more than 25 years. She has
published a number of articles and spoken extensively in the U.S.
216 Even if we were to admit Mr. Crawford’s report and
testimony into evidence, his valuation analysis would not
materially affect our decisions in these cases. Given the
speculative nature of Mr. Crawford’s conclusions and the
complexity of making any predetermination of whether the NOLs
might survive the gauntlet of sec. 382, we would give little
weight to his valuation analysis.
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