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Schindler Elevator v. Riverboat Corporation

March 24, 2011

SCHINDLER ELEVATOR PLAINTIFF CORPORATION COUNTER-DEFENDANT
v.
RIVERBOAT CORPORATION DEFENDANT/ OF MISSISSIPPI COUNTER-PLAINTIFF



The opinion of the court was delivered by: Louis Guirola, Jr. Chief U.S. District Judge

MEMORANDUM OPINION AND ORDER DENYING SCHINDLER'S MOTION TO EXCLUDE EXPERT TESTIMONY OF STEPHEN POWELL AND MICHAEL COURSEY

BEFORE THE COURT is the Motion to Exclude Expert Testimony of Stephen Powell and Michael Coursey [57, 60] that was filed by Schindler Elevator Corporation. Upon reviewing the submissions of the parties and the applicable law, the Court finds that the Motion to Exclude should be denied.

DISCUSSION

This lawsuit arose out of a contract dispute between Schindler and Riverboat Corporation of Mississippi concerning an elevator/escalator Preventive Maintenance Agreement (PMA) between the parties.*fn1 After it terminated the PMA with Schindler, Riverboat hired Kone, Inc., to service its elevators and escalators. It also asked Kone employees to inspect the elevators, and many of Riverboat's claims for inadequate service under the PMA are based on the inspections made by Kone. On September 2, 2010, Riverboat designated two Kone employees, Stephen Powell and Michael Coursey, as experts. Prior to the designation, these employees had been deposed by the parties. Schindler has filed the present Motion to Exclude, arguing that these experts should not be permitted to testify for several reasons.

A. Whether Powell and Coursey Were Properly Designated as Expert Witnesses

Schindler argues that Riverboat did not properly designate Powell and Coursey as experts, because it did not provide the subject matter on which these experts are expected to present evidence and it failed to supplement its initial disclosures. See Local Rule 26. However, Riverboat clearly provided the subject matter of these experts' expected testimony in its Designation. (Docket No. [31]). In fact, Riverboat summarized their expected opinions and referred to the depositions that these experts had given prior to the Designation. As a result, Schindler's argument in this regard is meritless. Furthermore, Schindler has not explained what supplementation Riverboat should have provided. There is no indication that these experts' opinions or qualifications have changed.

Finally, the Court finds that Schindler's arguments in its rebuttal memorandum [67] are also without merit. Schindler argues that it was prejudiced by the designation of these experts after their depositions were taken, because it would have conducted its depositions differently had it known that they would be designated as experts. However, Riverboat's Designation of Experts [31] was filed on September 2, 2010, and the discovery deadline was November 1, 2010. Nothing prevented Schindler from conducting a second deposition of these experts in the two months following the designation.

In addition, Schindler argues that these experts should have filed written reports, because they were retained experts. See Fed. R. Civ. P. 26(B). These experts are employees of the company that currently services the Isle's elevators and escalators. There is no evidence or indication that these experts were specifically retained for the purpose of giving expert testimony against Schindler. Therefore, they were not required to provide written reports.

B. Whether Powell and Coursey Are Biased

Schindler next argues that Powell and Coursey should be prevented from providing expert opinions, because they had a financial interest in giving a negative opinion of Schindler's maintenance work due to the fact that their employer, Kone, was seeking to take over the elevator and escalator work at the Isle at the time that they initially inspected the Isle equipment. Schindler does not provide any legal authority that supports its argument.

Credibility determinations and decisions as to the weight that should be given to the testimony of expert witnesses are jury functions. Palasota v. Haggar Clothing Co., 499 F.3d 474, 480 (5th Cir. 2007); United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077-78 (5th Cir. 1996); Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058, 1069 (5th Cir. 1993); V&S Ice Mach. Co. v. Eastex Poultry Co., 437 F.2d 422, 426 (5th Cir. 1971). Furthermore, it should be noted that most expert witnesses have a financial interest in the testimony that they give, and thus, a financial interest alone is insufficient to justify striking an expert witness.

Schindler will have the opportunity at trial to vigorously cross-examine Powell and Coursey regarding their relationship with Riverboat. It will be up to the jury to determine the weight and credibility of these experts.

C. Whether Powell and Coursey are Qualified

Fed. R. Civ. P. 702 provides that a witness must possess the requisite "knowledge, skill, experience, training, or education" to provide expert testimony. However, "Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by ...


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