In August, litigants to the NPS civil trial were required to file expert opinion reports with the court.  Initially, there were essentially 8 defendant banks, and most had retained one or more experts to testify at trial.  As a consequence, a plethora of expert reports were filed with the court.  Many of the experts offered opinions on what Missouri’s preneed law did or did not require. Over the past few months, the NPS Special Deputy Receiver has reached settlement agreements with all but two of the Missouri defendant fiduciary banks, and in an order issued two weeks ago, the court identified those experts who will be allowed to testify.  The order also set the areas of testimony that will, and will not, be allowed.  The following are the areas of testimony that will not be allowed:

1. Whether the actions of the Missouri Trustees, or anyone else, complied with Chapter 436;

2. Interpretations of Chapter 436;

3. Interpretations of the governing trust agreements;

4. Requirements of Chapter 436;

5. Duties imposed by Chapter 436;

6. Actions of a Missouri State Court;

7. Trustees’ liability for the actions of the grantor;

8. Whether trustees lack authority and capability to oversee external business activities of trust grantors or beneficiaries;

9. Trustees’ responsibilities or liability for investment decisions;

10. Duties and Responsibilities of the Independent Investment Advisor;

11. Interpretation of the meaning of “independent” in Chapter 436;

12. Whether applicable statutes require independence from seller or trustee, or both;

13. Prevailing trust customs and practices supersede Missouri law;

14. The appointment of Wulf Bates relieved the trustees completely of all liability for investment decisions;

15. The trustees could not monitor investment decisions of the investment advisor.

Testimony regarding the following will be allowed:

1. Purpose of Chapter 436;

2. Reference the trust agreements and applicable statutes;

3. Purpose of a standard of care;

4. What trustees generally understand their responsibilities to be and their fiduciary duties but not what a specific trustee understood as their duties and responsibilities;

5. What the expert believes the purpose of the trust agreement and the statute were designed to achieve;

6. What the expert currently advises clients to do or not to do;

7. The responsibilities of trustees, in the practice of the expert;

8. Opinions as to independence of David Wulf;

9. Observations of what trustees did or did not do;

10. Whether trustees complied or did not comply with the standard of care;

11. Reference sections in the law and state if evidence was or was not presented to show the acts were done but cannot say the law requires certain actions;

12. How trustees did or did not control trust assets, keep records, or monitor trust distributions but not what the statute requires.

Francis Hanna, a name familiar to Missouri attorneys that practice in trust law, will be one of the experts to testify at the NPS civil trial.  Mr. Hanna’s expert report assumed an approach that seems consistent with the court’s testimony guidelines, and in future posts we will examine the trustee duties as outlined by the report.