United States District Court, S.D. Mississippi, Northern Division
LARRY WELLS; DONNA WELLS; and, CONNIE FARMER, individually and as personal representative of Charles Farmer Plaintiffs,
ROBINSON HELICOPTER CO., INC., Defendant, WEBB GROUP, L.P., Plaintiff,
ROBINSON HELICOPTER CO., INC., Defendant.
CARLTON W. REEVES, District Judge.
Before the Court are five motions to exclude filed by Larry Wells, Donna Wells, and Connie Farmer (together, the "Wells plaintiffs"). Docket Nos. 121, 127, 130, 133, 134. Webb Group, L.P. joins in the motions, while Robinson Helicopter Company opposes them.
I. Factual and Procedural History
On September 1, 2009, Federal Aviation Administration inspectors Larry Wells and Charles Farmer were practicing helicopter landings and takeoffs in Jackson, Mississippi. They did so in their official capacities: the FAA had rented the helicopter for the day from Webb Group, L.P. The helicopter was a Robinson Helicopter Company R-44 "Raven I" bearing registration number N33PX.
While in the air, the helicopter began to vibrate. It crashed. Wells suffered severe injuries, while Farmer died.
In August 2012, the Wells plaintiffs brought this suit claiming that Robinson was liable to them for manufacturing a defective product which caused serious injuries or death. They alleged that the crash was caused by a known defect called "mast rocking" or "chugging, " and asserted negligence, strict liability, failure-to-warn, and warranty theories of recovery.
That same month, Webb Group filed a lawsuit against Robinson seeking to recover its economic losses, such as lost business opportunities. Webb Group asserted similar theories of liability as the Wells plaintiffs. The cases were consolidated for discovery and trial.
The plaintiffs now seek to exclude five of Robinson's six designated experts: C. Thomas Webster, Kenneth Orloff, Timothy Tucker, Peter Riedl, and Douglas Tompkins. Each motion will be taken in turn.
II. Legal Standard
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 Equipment Corp., 394 F.3d 320, 325 (5th Cir. 2004). That Rule now states that:
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 the Rule is to guide the district court's gatekeeping function and ensure that the jury hears reliable and relevant expert testimony. See 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).
In Daubert, the Supreme Court described several non-exclusive factors that trial judges should use to gauge reliability, including whether the proposed technique or theory can be or has been tested, whether it has been subjected to peer review and publication, its error rate, and whether it is generally accepted in the scientific community. See Guy, 394 F.3d at 325; Knight, 482 F.3d at 351. The Fifth Circuit later clarified that "the reliability analysis must remain flexible: not every Daubert factor will be applicable in every situation; and a court has discretion to consider other factors it deems relevant." Guy, 394 F.3d at 325 (citation omitted); see Hathaway v. Bazany, 507 F.3d 312, 318 (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).
The Daubert analysis applies to the process of the expert's conclusions, not the merits of the conclusions themselves. Guy, 394 F.3d at 325. The merits remain subject to attack at trial under traditional principles of "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509 U.S. at 596. "[I]n determining the admissibility of expert testimony, the district court should approach its task with proper deference to the jury's role as the arbiter of disputes between conflicting opinions." United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir. 1996) (quotation marks and citation omitted).
The Fifth Circuit has quoted with approval the Seventh Circuit's observation that "[u]nder the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." Moore, 151 F.3d at 278 (quotation marks and citation omitted). The extrapolation or "leap from an accepted scientific premise to an unsupported one... must be reasonable and scientifically valid." Id. at 279 (citations omitted).
The Court begins with the plaintiffs' general objections. One is that several of Robinson's experts have not performed adequate testing. But an expert's role or lack thereof in testing a defective product (or its proposed remedy, etc.) typically goes toward weight. E.g., Hankins v. Ford Motor Co., No. 3:08-CV-639-CWR-FKB, 2011 WL 6046304, at *4 (S.D.Miss. Dec. 5, 2011). This alone is not enough to exclude any of the five experts in question.
The same is true of the plaintiffs' repeated objection to Robinson calling its employees as expert witnesses. Four of the five experts discussed below are Robinson employees. The plaintiffs argue that their testimony is unreliable because of their employment. The Court believes that this is a bias argument reserved for the jury's consideration. E.g., In re Plant Insulation Co., 544 F.Appx. 669, 671 (9th Cir. 2013) (permitting expert testimony despite appellant's "alleg[ation] that the experts... have a direct financial stake in the outcome of the case because of their relationships with the debtor and the Creditors' Committee, " since "evidence of ...