United States District Court, S.D. Mississippi, Eastern Division
CARIBBEAN UTILITIES COMPANY, LTD. PLAINTIFF
HOWARD INDUSTRIES, INC., a Mississippi profit corporation, DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE.
cause came before the Court on Defendant's Motion to
Exclude Industry Standards and State of Mind Opinions of
Mehrooz Zamanzadeh and Bastiaan Cornelissen . The motion
has been fully briefed [109, 121, 139]. Having reviewed the
parties' submissions, the relevant legal authority and
otherwise being fully advised in the premises, the Court
finds that the motion is not well taken, and for the reasons
stated herein, it will be denied.
case arises from electrical transformers manufactured by the
Defendant, Howard Industries, Inc. (“Howard”),
which Plaintiff, Caribbean Utilities Company, Ltd.
(“CUC”), alleges are defective. At issue
presently is expert testimony provided by CUC's experts,
Mehrooz Zamanzadeh and Bastiaan Cornelissen. Howard seeks to
exclude certain testimony on three grounds, which the Court
will address in turn.
to addressing each of these grounds, however, the Court will
first address the Howard's requested relief with regard
to Bastiaan Cornelissen. As CUC aptly points out, Howard has
failed to identify, cite to or attach any testimony or report
by Dr. Cornelissen that it proposes to exclude. The Court
cannot and will not rule in the abstract. Rather, the Court
must consider the specific testimony in dispute in light of
the relevant authority. Without having such, the Court hereby
denies the motion as to Bastiaan Cornelissen without
prejudice to the Howard's right to raise any objections
at trial to specific testimony.
Dr. Zamanzadeh (“Dr. Zee”), Howard has proposed
certain testimony/opinions it seeks to preclude. The
admission or exclusion of expert testimony is a matter within
the discretion of the district court. Kuhmo Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999); Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009).
Testimony on Accepted Standards in the Industry.
Howard cites to twelve examples of standards mentioned by Dr.
Zee during his deposition. For example, one such statement
This is very well known in the stainless steel industry, that
in order to get rid of contamination, iron contamination and
high temperature oxides due to pickling-due to welding you
need to do pickling or blasting or combination . . . Those
familiar with the industry, they know these things very well.
 at p. 2 (citing Ex. 1, Depo. of Zamanzadeh 23:3-12).
Howard argues that Dr. Zee failed to show that the standards
he wishes to opine about are accepted in the industry.
argues in opposition that Howard fails to cite any law from
Mississippi, the District Courts in Mississippi, or the Fifth
Circuit that supports its position. The Court agrees that
Howard has failed to adequately support its legal proposition
that an expert must first establish that a standard is
accepted in the industry before opining on such standard. As
CUC points out, Dr. Zee cites to many different standards in
his report. As for the twelve various statements by Dr. Zee
during his deposition, Howard does not argue that Dr. Zee is
not qualified in this field. By his knowledge, education, and
experience, and expert can testify as to what may or may not
be accepted in the industry. Howard attacks neither his
knowledge, education, or experience. However, at trial should
Howard feel such is lacking, it is free to challenge on
cross-examination the underlying bases as to how Dr. Zee
arrived at his determination that something is an industry
standard, but such a challenge goes to the weight and not the
admissibility of the testimony. See Graham v. All Am.
Cargo Elevator, No. 1:12-CV-58-HSO-RHW, 2013 WL 5216529,
at *1 (S.D.Miss. Sept. 16, 2013). Howard's criticism as
to whether such standards have been adequately established
should be left for the jury's consideration. See
id. Therefore, the Court denies the motion as to this
ground for exclusion.
Testimony as to Ultimate Legal Conclusion
Howard claims that Dr. Zee seeks to impermissibly testify as
to an ultimate legal conclusion under the guise of an alleged
industry standard; however, Howard fails to cite any evidence
or identify any particular portion of Dr. Zee's report or
testimony that it seeks to exclude. The Court cannot rule in
a vacuum. Without specific testimony or opinions to examine,
the motion is denied without prejudice to Howard's right
to object on a question by question basis to any particular
testimony at trial that it believes should be excluded.
extent Howard argues generally that an expert cannot testify
that a standard of care/industry standard was breached, the
motion is again denied. Federal Rule of Evidence 704(a)
specifically states that “[a]n opinion is not
objectionable just because it embraces an ultimate
issue.” As CUC points out, there is a distinction
between offering an opinion that may embrace the ultimate
issue and offering a legal opinion that does nothing more
than tell the trier of fact how to decide the ultimate issue,
i.e., “defendant was negligent.” Expert testimony
in a specialized field is oftentimes necessary not only to
establish what the standard of care is but also, contrary to
Howard's argument, to assist the trier of fact in
understanding the evidence and whether particular conduct was
either in breach or in conformity with such standard. Cf.
Meganathan v. Signal Int'l L.L.C., No. 1:13-CV-497,
2015 WL 11109846, at *4 (E.D. Tex. June 26, 2015) (allowing
expert to testify based on experience as to industry
standards and customs and measure defendant's practices
against those standards); Roy v. Fla. Marine
Transporters, Inc., No. Civ. A 03-1195, 2004 WL 551208,
at *3-4 (E.D. La. Mar. 18, 2004) (examining expert opinions
regarding defendant's breach of certain standards, not on
the grounds that testimony that breach occurred is
impermissible but on grounds that some opinions were based on
common sense and needed no expert and some underlying bases
for other opinions rendered opinions unreliable).
Testimony Regarding Howard's Knowledge, Motive, ...