Opinion
Civil Action No 98-485 c/w 98-923, 00-692, Section: "R"(5)
June 25, 2001.
ORDER AND REASONS
Before the Court is defendant NETEC, Inc.'s, motion in limine to exclude the testimony of plaintiff's expert, Michael Kennedy. NETEC asserts that the testimony of this expert fails to meet the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). For the following reasons, NETEC'S motion in limine to exclude the testimony of plaintiff's expert is DENIED.
I. Background
In the predawn hours of December 24, 1997, a 12,000 pound anchor released from its stowed position aboard the Barge B. No. 245 while the barge and its tug, the M/V DANIELLE BOUCHARD, were underway from Lake Charles to Florida. The dragged anchor caused damage to several pipelines owned by various oil companies. Bouchard Coastwise Management Corporation (the owner of the tug and barge) and Gretna Machine and Iron Works Corporation (the contractor who built the tug and barge) settled the oil companies' damages claims for $10.4 million. Plaintiff's Bouchard and Gretna now seek recovery from NETEC, the manufacturer of the anchor windlass. The allegations against NETEC are that the anchor windlass had a defective braking mechanism and that NETEC was responsible for damage to the safety chain bolt.
NETEC contests these allegations and asserts that any problems encountered with the anchor windlass were not the result of any design flaw or negligence of NETEC, but instead due to Bouchard and Gretna's operational negligence in the care and maintenance of the anchor windlass. The crew has testified that the band brake was tightened and the windlass was in gear during the voyage in question. NETEC contends the windlass' clutch, if engaged, can never allow an anchor and chain to slip, and therefore the windlass could not have been in gear. Accordingly, NETEC asserts the crew's testimony that the clutch was engaged during the voyage is incorrect because even if the band brake had failed, a disc brake inside the windlass would have either held the anchor or else evidenced considerable damage. Plaintiffs, however, maintain that the proximate cause of the accident was the failure of the band brake to hold, and that the accident could have occurred with the windlass in gear as testified by the crew.
NETEC now moves to exclude the testimony of Michael Kennedy, an expert in hydraulic engineering, on the grounds that Kennedy's testimony does not meet the requisite burden of proof needed to support causation.
II. Discussion
A. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702 and will be reviewed on appeal only for abuse of that discretion. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39, 118 S. Ct. 512, 515 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 372. (5th Cir. 2000) (citations omitted). Rule 702, which governs the admissibility of expert witness testimony, provides that an expert witness "qualified . . . by knowledge, skill, experience, training or education," may testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. RULE. EVID. 702. See also Daubert, 509 U.S. at 587, 113 S.Ct. at 2794. In Daubert, the Supreme Court held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. at 2795. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony). The Court's gatekeeping function thus involves a two-part inquiry into reliability and relevance.
First, the court must determine whether the proffered expert testimony is reliable. The party offering the testimony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998) ( citing In re Paoli R.R. Yard PCB Litigation, 35 f.3d 717 (3rd Cir. 1994)). The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. The aim is to exclude expert testimony based merely on subjective belief or unsupported speculation. See id. at 590, 113 S.Ct. at 2795.
Daubert identified a number of factors useful in analyzing reliability of an expert's testimony, including testing, peer review and publication, evaluation of known rates of error, and general acceptance within the scientific community. See Id. at 592-94, 113 S.Ct. at 2796-97. In Kumho Tire, the Supreme Court emphasized that the test of reliability is "flexible" and that Daubert's list of specific factors does not necessarily nor exclusively, apply to all experts in every case. 526 U.S. 137, 119 S.Ct. at 1175. See also Seatrax, 200 F.3d at 372 (reliability is a fact-specific inquiry and application of Daubert factors depends on "nature of the issue at hand, the witness's particular expertise and the subject of the testimony"). Nevertheless, in the vast majority of cases, the district court should first consider the Daubert factors before addressing whether other factors are relevant to the particular case. See Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (5th Cir. 1999). See also Watkins v. Telsmith, 121 F.3d 984, 991 (5th Cir. 1997) (regardless of basis of expert's opinion, Daubert's non-exclusive factors are relevant to initial reliability assessment). The overarching goal "is to make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176.
Second, the Court must determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will thereby assist the trier of fact to understand the evidence, in other words, whether it is relevant. See Daubert, 509 U.S. at 591, 113 S.Ct. at 2795-96; FED. R. EVID. 702. The Federal Rules of Evidence define "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401.
In assessing the expert's qualifications, the Court notes that its gatekeeping function does not replace the traditional adversary system and the role of the jury within the system. See Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. As the Supreme Court noted in Daubert, "(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." Id. ( citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 2714 (1987)). The Fifth Circuit has added that, in determining the admissibility of expert testimony, a district court must defer to "the jury's role as the proper arbiter of disputes between conflicting opinions." As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres of Land, More or Less Sit. in Lefore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)). Thus, a witness qualified as an expert in a products liability action "is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight." Wright v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) (collecting cases). See also Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 176-77 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air. Corp., 37 F.3d 1069 (5th Cir. 1996) (permitting mechanical engineer who had never designed a press brake to testify as to safety of brake design).
B. Application
NETEC argues that the Court should exclude the testimony of plaintiff's proposed expert, Michael Kennedy, because his testimony that the motor brake "possibly could" have failed is not probative. ( See NETEC's Mem. Supp. Mot. Lim. Kennedy, at 2.) Since NETEC does not challenge the reliability of Kennedy's testimony, the Court will focus exclusively on the relevancy prong of the Daubert test.
The Court finds that Kennedy's testimony is relevant. The determination of failure of the hydraulic system for a barge anchor requires technical expertise beyond the common knowledge and experience of the average juror.
NETEC argues that Kennedy's testimony should be excluded because he cannot affirmatively establish, more probably than not, the issue of causation. In support, NETEC relies on Goode v. Herman Miller, Inc., in which the Fifth Circuit held that under Louisiana law, the mere proof that something is possible is of little probative value as to an ultimate issue of fact, unless it can be established with reasonable certainty that all other alternatives are impossible. 811 F.2d 866 (5th Cir. 1987). See also, Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir. 1985) (possibility alone cannot serve as the basis for recovery, for mere possibility does not meet the preponderance of the evidence standard.)
NETEC's reliance on Goode is misplaced. The Goode decision did not involve a determination of the admissibility of expert opinions under Daubert but rather the plaintiff's burden in proving causation. Goode, 811 F.2d at 871-872. As such, the analysis in Goode is relevant in determining the weight to be given to expert opinions, not the threshold inquiry of whether the expert's opinion is admissible. The reasoning of Goode does not apply in the present case because Kennedy's opinions are not being offered to prove liability per se, but rather to rebut NETEC's claim that the crew's testimony is false because the windlass' clutch, if engaged, can never allow an anchor and chain to slip.
The Federal Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Here, Kennedy has opined that it is possible that the band brake could fail even with the windlass in gear. (Pl.'sMem. Opp'n Mot. Lim. Kennedy, Ex. B.) In doing so, his testimony tends to rebut NETEC's attack on the crew's testimony. While his testimony could not alone be the basis for a plaintiff's verdict on causation, this does not make it irrelevant.
III. Conclusion
For the foregoing reasons, the Court DENIES NETEC's motion in limine to exclude the testimony of plaintiff's expert, Michael Kennedy.