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HANKS v. KOREA IRON & STEEL CO.

February 3, 1998

JEFFREY ALLEN HANKS, by Old National Trust Company, Guardian of the Estate of Jeffrey Allen Hanks, a disabled person, Plaintiff,
v.
KOREA IRON & STEEL CO., LTD. and RANCO, INC., a/k/a Gulf Coast Wire Rope Co., Defendants.



The opinion of the court was delivered by: FOREMAN

 FOREMAN, District Judge:

 Before the Court are various motions filed by both parties that are discussed below. This Court has jurisdiction over this matter pursuant to 28 U.S.C. ยง 1332.

 I. Motion to Quash Depositions and for Protective Order.

 Defendant Kiswire, Ltd. (sued as Korea Iron & Steel Works, Ltd.) has filed a Motion to Quash Depositions and For Protective Order (Doc. 100). Plaintiff has filed a Response (Doc. 108).

 Defendant has moved to quash the depositions of Kiswire personnel, Mr. Sung Hum, Mr. Kil Hoon Kang, Mr. Soo Won Lee, and Mr. Jog Hak Lee. First, with regard to Mr. Sung Hum, Kiswire asserts that plaintiff has incorrectly identified him as "Mr. Sung Hum" instead of by his full name, "Mr. Sung Hum Baik." According to defendant, Mr. Baik's deposition has already been taken. Plaintiff has withdrawn the deposition notice for Mr. Sung Hum. Second, with regard to the remaining individuals, Kiswire asserts that the testimony of these individuals would be duplicative of testimony already obtained in previous depositions of Kiswire personnel. Contrary to plaintiff's objections, the Court finds that on the facts presented to the Court, the testimony that could be offered by these individuals would be duplicative and unhelpful to the issues before the Court. Accordingly, and for the reasons set forth in Kiswire's Memorandum (Doc. 101), Kiswire's Motion to Quash Depositions and For Protective Order (Doc. 100) is GRANTED.

 II. Motion to Compel.

 Plaintiff has filed a Motion to Compel the depositions of Kiswire personnel Kil Hoon Kang, Soo Won Lee, and Jon Hak Lee (Doc. 104). For the reasons set forth in Section I, Plaintiff's Motion to Compel (Doc. 104) is DENIED.

 III. Motion to Strike Testimony of Donald Pellow.

 Defendant has filed a Motion to Strike Testimony of Donald Pellow (Doc. 118). Plaintiff has filed a Motion for Leave to respond to this motion and has attached a proposed response (Doc. 128). Plaintiff's Motion for Leave (Doc. 128) is GRANTED, and the Court has considered plaintiff's proposed response in ruling on this issue.

 A. Background.

 Defendant has moved to strike the testimony of plaintiff's expert, Mr. Donald L. Pellow. An affidavit from Mr. Pellow is attached to plaintiff's opposition to defendant's summary judgment motion (Doc. 117, Exh. B). In this affidavit, Mr. Pellow has testified that it is "more probable than not" that the wire rope that failed was manufactured by Kiswire (Doc. 117, Exh. B, p.2). He bases this opinion on his education, training, and experience, as well as his physical examination of, and a chemical analysis of, the failed sample, and his comparison of it to a sample of known Kiswire rope.

 Mr. Pellow is a Registered Professional Engineer with over 30 years of experience working in the wire rope industry (Doc. 117, Exh. B, p.1). His expertise includes the design, testing, engineering, production, and field usage of wire rope (Doc. 117, Exh. B, p.1).

 Mr. Pellow's opinion is based, in part, on a physical analysis of the failed wire rope performed by comparing its physical characteristics to a piece of known Kiswire wire rope. Based upon his comparison of the physical characteristics, he concluded that the failed sample and the Kiswire wire rope were "very similar in construction." Specifically, he determined that the failed sample and the Kiswire wire rope were "similar in rope and core diameters, lay length of the ropes, strands and core; and the wire sizes" (Doc. 117, Exh. B, p.1). He also concluded that both samples used the same type of lubricants (Doc. 117, Exh. B, p.1).

 B. Discussion .

 The admissibility of expert testimony is governed, in part, by Federal Rule of Evidence 702. Specifically, Rule 702 provides that:

 
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
 
Fed.R.Evid. 702.

 Guidance in interpreting Rule 702 was provided by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), where the Court determined the proper standard "for admitting expert scientific testimony in a federal trial." Daubert, 509 U.S. at 582. The Court rejected the Frye "general acceptance" test for the more liberal standard embodied in Federal Rule of Evidence 702. (See Frye v. United States, 54 App. D.C. 46, 293 F.1013 (1923)); see also General Elec. Co. v. Joiner, 522 U.S. 136, 139 L. Ed. 2d 508, 118 S. Ct. 512, 517 (1997) (noting that the Daubert standard will result in the admission of a somewhat broader range of testimony than Frye). Under this more liberal standard, the expert need only testify to "(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592.

 Seventh Circuit cases interpreting Daubert have given district courts a two-step analysis to use in evaluating expert testimony under Rule 702. First, the district court must determine whether the expert's testimony is reliable, (i.e., is based on a reliable methodology). Second, if the testimony is reliable, the district court must then determine "whether the evidence or testimony will assist the trier of fact in understanding the evidence or determining a fact in issue." Cummins v. Lyle Industries, 93 F.3d 362, 368 (7th Cir. 1996) (quoting Porter v. Whitehall Labs, 9 F.3d 607, 616 (7th Cir. 1993)). *fn2"

 The Seventh Circuit has said that in the context of theoretical and applied science the reliability determination involves looking to whether the testimony in question pertains to scientific knowledge. Cummins, 93 F.3d at 368-69. In effect, the Seventh Circuit appears to have taken the position that testimony can pertain to scientific knowledge and can be fairly characterized as "scientific" only if it is based on a reliable methodology. Thus, the Seventh Circuit has collapsed the question of whether the testimony is reliable and whether it is scientific into a single inquiry. *fn3"

 To assist the district courts in determining whether testimony qualifies as a scientific opinion, (i.e., a statement about scientific knowledge, which by virtue of that fact, is reliable and therefore eligible to be received into evidence under Rule 702), Daubert articulated four non-exclusive guidelines. These guidelines are: (1) whether the proffered conclusion lends itself to verification by the scientific method through testing; (2) whether it has been subjected to peer review; (3) whether it has been evaluated in light of the potential rate of error of the scientific technique; and (4) whether it is consistent with the generally accepted method for gathering the relevant scientific evidence. Daubert, 509 U.S. at 593-94. The Seventh Circuit has said that ...


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