The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Now before the court is defendant's Motion to Bar ( #32) plaintiff's expert witness*fn1 . The motion is fully briefed and I have carefully considered the arguments of the parties. For the following reasons, the motion is granted in part and denied in part.
Fed.R.Evid. 704(a) provides in pertinent part that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704(a)(2006). The Advisory Committee Notes caution, however, that "abolition of the ultimate issue rule does not lower the bar so as to admit all opinions." Rather, the limitations of Rules 701, 702 and 403 "afford ample assurances against the admission of opinions which would merely tell the jury what result to reach." Fed.R.Evid. 704 Advisory Committee's Notes (2006). In other words, when an expert offers an opinion on an ultimate issue, the admissibility of that opinion is governed by the concerns underscoring those rules.
The admissibility of expert opinion testimony is governed by Fed.R.Evid. 702, which provides:
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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles reliably to the facts of the case. Fed.R.Evid. 702 (2006).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993), the Supreme Court directed District Courts to serve as "gatekeepers," analyzing proposed expert opinions and admitting only expert testimony that meets the standards of Rule 702. Daubert, 509 U.S. 579. See also, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Fuesting v. Zimmer, Inc., 421 F.3d 528, 534 (7th Cir.2005). The gatekeeper function requires the judge to assess the proffered expert opinion in order to ensure its reliability and relevancy before allowing the testimony to be admitted. Kumho Tire, 526 U.S. at 147. See also, Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir. 2006); Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999).
The Daubert Court set forth the following, non-exhaustive list of "guideposts" to assist in the determination of reliability and relevance: (1) whether the scientific theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory's known or potential rate of error when applied; and (4) whether the theory has been "generally accepted" in the scientific community. 509 U.S. at 593-94; see also Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir.2002).
In addition to these factors, the 2000 Advisory Committee's Notes to Rule 702 suggest other relevant factors, including: (5) whether "maintenance standards and controls" exist; (6) whether the testimony relates to "matters growing naturally and directly out of research they have conducted independent of the litigation," or developed "expressly for purposes of testifying"; (7) "[w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion"; (8) "[w]hether the expert has adequately accounted for obvious alternative explanations"; (9) "[w]hether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting"; and (10) "[w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give."
Fed.R.Evid. 702 Advisory Committee's Note (2000 Amends.).
This case arose out of an accident that occurred when plaintiff was trying to clear a clog in a piece of farm machinery. Plaintiff has disclosed as his expert an engineer, Kevin Sevart. Sevart has a Bachelor's degree in Mechanical Engineering and has been licensed and practicing as a Professional Engineer since 1990. He is a member of the American Society of Agricultural Engineers. He has designed and tested machine components and safety systems that have gone into production. He has testified 10-15 times in other litigation.
Sevart has proffered a number of opinions, two of which are the subject of this motion. These two opinions are:
(1) Cody Linville was not working in an unreasonable manner in his efforts to clear the clog that he encountered; and (2) The accident was foreseeable, and Cody ...