United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, District Judge.
Before the Court are three motions to strike: (1) Plaintiffs' Motion to Strike Expert Witness Report and Exclude Opinion Testimony of Ted Dearman, Docket No. 87; (2) Plaintiffs' Motion to Strike Expert Witness and Exclude Opinion Testimony of Bill Cook, Docket No. 89; and (3) Detroit Diesel Realty, Inc.'s Motion to Strike Opinion Testimony of Harrell Jeanes and Jim Meng, Docket No. 101. Having considered the parties' submissions and relevant law, the Court is now ready to rule.
This matter is a contractual dispute in which Plaintiffs Harrell Jeanes, Jr., William Jeanes, and Larry Taylor, allege that Detroit Diesel Realty, Inc. ("DDR") violated terms of a lease agreement by failing to properly maintain and repair the commercial property that it leased from Plaintiffs from 1989 to 2012. DDR denies that it is liable under the terms of the lease. However, it filed a third-party complaint against Clarke Power Services, Inc. ("Clarke")-to which DDR subleased the subject property from 1996 to 2012-asserting that to the extent DDR is found liable to Plaintiffs for any damage to the property, DDR is entitled to recover from Clarke for Clarke's breach of its repair and maintenance obligations under the sublease. The factual background of the dispute is set forth in more detail in the Court's Order dated May 6, 2014, which granted in part and denied in part DDR's motion for summary judgment, and which denied Plaintiffs' and Clarke's motions for summary judgment. See Taylor v. Detroit Diesel Realty, Inc., No. 3:12-CV-506-CWR-LRA, 2014 WL 1794582, at *1-3 (S.D.Miss. May 6, 2014). Plaintiffs now seek to exclude the expert reports and opinion testimony of Ted Dearman, DDR's expert, and Bill Cook, Clarke's expert. DDR moves to exclude what it categorizes as impermissible expert opinion by lay witnesses Harrell Jeanes, Jr. and Jim Meng.
II. LEGAL STANDARDS
The admissibility of expert testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the post- Daubert amendments to Federal Rule of Evidence 702. See Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). That Rule now states the following:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
The purpose of Rule 702 is to guide the district court's gatekeeping function. See Guy, 394 F.3d at 325. Before allowing a witness to testify as an expert, a court "must be assured that the proffered witness is qualified to testify by virtue of his knowledge, skill, experience, training, or education.'" Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (quoting Fed.R.Evid. 702). A court's gatekeeping function also involves ensuring that "the expert uses reliable methods to reach his opinions, " and that those opinions are "relevant to the facts of the case." Guy, 394 F.3d at 325. "Reliability is determined by assessing whether the reasoning or methodology underlying the testimony is scientifically valid. Relevance depends upon whether that reasoning or methodology properly can be applied to the facts in issue." Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quotation marks, citations, and brackets omitted); see United States v. Fields, 483 F.3d 313, 342 (5th Cir. 2007). The party offering the expert bears the burden of establishing reliability by a preponderance of the evidence. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
In Daubert, the Supreme Court described several non-exclusive factors that trial judges should consider in gauging reliability, including whether the proposed technique or theory can be or has been tested, whether it has been subjected to peer review and publication, whether its error rate is acceptable, whether the theory is generally accepted in the scientific community, and whether there are standards controlling the technique. See Guy, 394 F.3d at 325; Knight, 482 F.3d at 351. It later instructed that "the reliability analysis must remain flexible: not every Daubert factor will be applicable in every situation; and a court ...