Opinion
CIVIL ACTION NO: 08-4104.
June 25, 2009
ORDER
Before the Court are the Defendants' Motion to Exclude Report and Prospective Testimony of Captain Timothy Torrence (Rec. Doc. 25), seeking an order excluding expert testimony under Rule 702 of the Federal Rules of Evidence and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1998); and Motion to Strike Supplemental Expert Report of Captain Timothy Torrence (Rec. Doc. 28). The Court has reviewed the record, the memoranda of counsel, and the applicable law, and finds that the motions should be denied.
The purpose of Daubert is "to ensure that only reliable and relevant expert testimony is presented to the jury." Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 506 (5th Cir. 1999) (superseded by rule on other grounds), citing Daubert, 509 U.S. at 590-93. Thus, "[m]ost of the safeguards provided for inDaubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury."Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000). "Daubert requires a binary choice — admit or exclude — and a judge in a bench trial should have discretion to admit questionable technical evidence, though of course he must not give it more weight than it deserves." SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1042 (N.D. Ill. 2003).
Given that this case is a bench trial, and thus that the objectives of Daubert, upon which Defendants' motion to exclude is premised, are no longer implicated, the Court finds that the motion to exclude expert testimony should be denied at this time. Furthermore, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.
Likewise, the Court finds that Defendants' motion to strike the supplemental report for failure to comply with the Court's Scheduling Order and Rule 26 should also be denied. Accordingly,
IT IS ORDERED that Defendants' Motion to Exclude Report and Prospective Testimony of Captain Timothy Torrence (Rec. Doc. 25) and Motion to Strike Supplemental Expert Report of Captain Timothy Torrence (Rec. Doc. 28) are hereby DENIED.