Legal Memorandum: Facts an expert refers to when forming an opinion, need not be admissible for evidence

Issue: Under the New Mexico Rules of Evidence, must the facts an expert refers to when forming his or her opinion be admissible as evidence?

The business judgment rule precludes second-guessing of a corporate director’s or officer’s business decisions, unless those decisions are the product of (1) a failure to exercise due care, or (2) bad faith, fraud, illegality, or (3) gross overreaching. Stamp v. Touche Ross & Co., 263 Ill.App.3d 1010, 1015-16, (1993); see also Selcke v. Bove, 258 Ill.App.3d 932, 935-36 (1994) (business judgment rule applies to officers as well as directors). The mere fact that a director or officer has made a mistake in judgment is insufficient to overcome the business judgment rule. Stamp, 263 Ill.App.3d at 1015. It is the complaining party’s burden to allege facts showing that the business judgment rule does not apply. See, e.g., id. at 1017 (affirming dismissal of complaint where shareholder failed to allege that directors "did not make informed judgments" or engaged in "fraud, illegality, conflict of interest or bad faith").

American Enterprise Bank v. Becker, 2016.IL.150179-U (Ill. App. Dist. 2. Jan. 28, 2016) (not precedential).

Date: March 1, 2016
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