Factual Issues Were At Issue, With The Lodestar Methodology Being Appropriate To Use As Well As New York Outside Counsel’s Rates With Respect To Gauging Reasonableness Of In-House Counsel Plaintiff’s Efforts In New York Litigation.
Missakian v. Amusement Industry, Inc., Case No. B348390 (2d Dist., Div. 5 Oct. 19, 2026) (unpublished) is a case where the trial judge excluded a plaintiff in-house counsel’s quantum meruit expert from testifying at trial (through an in limine motion) because he used a lodestar methodology and used New York outside counsel hourly rates for gauging his opinions on the reasonableness of in-house attorney’s efforts in New York litigation. (For some background, the appellate earlier had found that plaintiff could not proceed under an invalid oral contingency fee agreement, reversing a jury verdict of well over $2 million in plaintiff’s favor. That left plaintiff to quantum meruit recovery.)
The 2/5 DCA reversed the trial court’s expert witness exclusion, directing the lower court to deny the motion and basically restore the matter for a trial.
Because the in limine motion was tantamount to a nonsuit motion, the appellate panel determined that its review was de novo, always important for an aggrieved appellant.
The overarching infirmity with the lower court’s expert exclusion was that it was making credibility determinations, not just gatekeeper admissibility decisions. Although neither side could locate a published opinion on point, nothing prevented plaintiff’s expert from using a lodestar methodology for purposes of determining the reasonableness of in-house counsel’s quantum meruit work efforts. (This also meant that the in-house counsel fee agreement with defendant did not restrict determining the market hourly rate for plaintiff.) With respect to using New York outside counsel rates, that was reasonable given that defendant did not show that in-house counsel’s efforts were not deserving of New York-based compensation. Because expert testimony was vital in a case of this type, the appellate court reversed the in limine preclusion order.