Opinion
Case No. C2-07-234.
August 7, 2009
ORDER
This matter came before the Court for a final pretrial conference on August 6, 2009. During the conference, the Court considered and rule on several pretrial motions. For the reasons set forth on the record during the final pretrial conference and as set forth below, the Court finds as follows with respect to the issues raised in the motions:
1. Plaintiff's Motion to Permit Testimony at Trial Via Live Video Feed (Doc. 43)
Plaintiff moves to present testimony of some of its witnesses via live video feed from Montevideo, Uruguay to the United States Courthouse in Columbus. Defendant objects to the presentation by live video because Plaintiff has provided no compelling circumstances under Federal Rule of Civil Procedure 43 to justify rejecting the general rule that a witness must testify in open court. Defendant further objects because Plaintiff has not suggested any safeguards for ensuring that the contemporaneous transmissions proceed justly. Upon due consideration, the Motion to Permit Testimony at Trial Via Live Video is GRANTED. Plaintiffs may call the truck operators by contemporaneous transmission. The following safeguards will be put into place: (1) The parties will following the procedure they used during discovery with respect to forwarding the documents that they anticipate will be used during his testimony (in a sealed envelope); (2) a sworn-translator will be present at the Courthouse to translate counsel's questions and the witnesses' answers. The Court will implement additional safeguards, if it deems them necessary, during the witnesses' testimony at trial.
The Court notes that Plaintiffs will be assessed any Court costs or charges associated with transmitting the testimony from Uruguay to the Courthouse.
2. Plaintiff's Motion in Limine — Tip-Over Accident (Doc. 44)
Plaintiff asserts that evidence regarding a September 17, 2005 tip-over accident involving the subject truck should be excluded as irrelevant and unduly prejudicial. It maintains that, because it seeks no damage related to the tip over, testimony regarding the accident is immaterial and would only confuse and mislead the jury. Defendant asserts that the matter is highly relevant and key to its chief defenses to liability.
The Court will hold this matter IN ABEYANCE for resolution during the trial after the matter has developed more fully through testimony. The parties are permitted to refer to an accident involving the truck, but are prohibited, without permission from the Court, to disclose tangential evidence, including but not limited to photographs of the damage resulting therefrom.
3. Plaintiff's Motion in Limine — Testimony of Defense Expert Witness (Doc. 45)
CIEMSA moves to exclude the testimony of Defendant's expert witness, Mr. Toner. It asserts that Mr. Toner did no scientific analysis or calculations for most of the issues upon which he rendered an opinion.
Federal Rule of Evidence 702 requires the trial judge to perform a "gatekeeping role" when considering the admissibility of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). Specifically, Rule 702 provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
This Court's gatekeeping role is two-fold. The Court must determine whether the proffered testimony is reliable and whether it is relevant to the task at hand. See Daubert, 509 U.S. at 590. The reliability assessment focuses on whether the reasoning or methodology underlying the testimony is scientifically valid. Id. The expert's testimony must be grounded in the methods and procedures of science and must be more than unsupported speculation or subjective belief. Id.
The Court has reviewed Plaintiff's Motion as it relates to Mr. Toner's expert testimony and finds that it may properly explore the challenges it raises as to his analysis through effective cross examination. The alleged weaknesses, as Plaintiff perceives them, in the factual basis of Mr. Toner's opinion bear on the weight of the evidence rather than on its admissibility. The Motion is, therefore, DENIED.
4. Defendant's Motion in Limine — Torsional Stiffness Comparison and Damages (Doc. 46)
The Court holds that portion of Hi Vac's Motion related to the torsional stiffness comparisons IN ABEYANCE, and will issue a final ruling during the trial after the issue develops through testimony. Plaintiff may not, however, mention the report or the finite element analysis in opening statements or otherwise without permission from the Court.
Plaintiff will produce to Defendant all documentation related to its alleged damages for work shop man hours; additional modification to reach contract requirement of 160 GPM; and company overhead costs in dealing with breakdown issues. The Motion to prohibit CIEMSA and all witnesses from making any statements or other reference at trial to these damages is therefore DENIED.
5. Defendant's Motion to Quash or Modify Subpoena (Doc. 66)
As set forth by the Court during the final pretrial conference, the Motion to Quash the subpoena is DENIED. Plaintiff agreed to cross examine the witness during Defendant's case in-chief, subject to the Court's instructions to the jury explaining why the witness has been called out of order.