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Tyree R. Webb v. Teco Barge Line

March 7, 2012

TYREE R. WEBB, PLAINTIFF,
v.
TECO BARGE LINE, INC., DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

This admiralty case was tried by bench trial over the course of two days. Because the case was a bench trial, the Court took several evidentiary motions under advisement and allowed the trial to proceed before ruling upon them. See Metavante Corp. v. Emigrant Savs. Bank, 619 F.3d 748, 760 (7th Cir. 2010) ("Although we have held that the court in a bench trial need not make reliability determinations before evidence is presented, In re Salem, 465 F.3d 767, 776-77 (7th Cir. 2006), the determinations must still be made at some point."). Now the Court must rule on the following pending motions: 1) defendant Teco Barge Line, Inc.'s motion to exclude medical causation opinions of Dr. Keith Starkweather (Doc. 79); 2) defendant's motion to exclude medical causation opinions of Dr. Robert Lee (Doc. 85); 3) defendant's motion to exclude medical causation opinions of Dr. Michael McGhee (Doc. 89); 4) plaintiff Tyree R. Webb's motion in limine to exclude any testimony, evidence, or argument that defendant considered potential damage caused by its barge fleet in determining not to evacuate plaintiff prior to the hurricane (Doc. 94); 5) plaintiff's motion to strike affirmative defenses pursuant to Federal Rule of Civil Procedure 12(b)(6) and 15(a)(2) (Doc. 110); and 6) plaintiff's objection to impeachment of any witness by conviction of a crime (Doc.116). For the reasons that follow, defendant's motions to exclude are denied (Docs. 79, 85, & 89), plaintiff's motion in limine is denied as moot because defendant admitted liability, plaintiff's motion to strike affirmative defenses is granted, and plaintiff's objection to impeachment of any witness by conviction of a crime is granted. Because the Court considers the motions to exclude first, it begins by setting forth the standard governing those motions.

I. Legal Standard

Federal Rule of Evidence 702 and in particular Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. The Daubert standard applies to all expert testimony, whether based on scientific competence or other specialized or technical expertise. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)). Rule 702 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 and methods reliably to the facts of the case.

FED. R. EVID. 702.

Daubert clarified that Rule 702 charges the district court with the task of ensuring expert testimony is both relevant and reliable. Daubert, 509 U.S. at 589. Courts in the Seventh Circuit conduct a three-step analysis. Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).*fn1 First, the district court must determine whether the person whose testimony is offered is in fact an expert, as codified in Rule 702 through "knowledge, skill, experience, training or education." Id. (citing FED. R. EVID. 702). Notably, although "extensive academic and practical expertise" sufficiently qualify a potential witness as an expert, Bryant v. City of Chi., 200 F.3d 1092, 1098 (7th Cir. 2000), "Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience," Walker v. Soo Line R.R. Co., 208 F.3d 581, 591 (7th Cir. 2000); see also Smith, 215 F.3d at 718 ("[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.") (citing Kumho, 526 U.S. at 156)).

Secondly, the district court must determine whether the expert's reasoning or methodology is reliable. Ervin, 492 F.3d at 904; see Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho, 526 U.S. at 147). Specifically, the testimony must have a reliable basis in the knowledge and experience of the relevant discipline, Kumho, 526 U.S. at 149 (internal quotations removed), consisting of more than subjective belief or unsupported speculation. Chapman, 297 F.3d at 687; Daubert, 509 U.S. at 590.

Further, as to reliability, Daubert provided the following non-exhaustive list of relevant factors: "(1) whether the scientific theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the theory has been generally accepted in the scientific community." Ervin, 492 F.3d 901, 904 (7th Cir. 2007) (citing Daubert, 509 U.S. at 593-94). However, there is no requirement that courts rely on each factor, as the gatekeeping inquiry is flexible and must be "tied to the facts" of the particular case. Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591); see also Chapman, 297 F.3d at 687. Thus, "the role of the court is to determine whether the expert is qualified in the relevant field and to examine the methodology the expert has used in reaching his [or her] conclusions." Smith, 215 F.3d at 718 (citing Kumho, 526 U.S. at 153).

The district court possesses "great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable." United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (citing Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007)). Accordingly, the court's gatekeeping function requires focus on the expert's methodology; the "[s]oundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact." Smith, 215 F.3d at 718 (citing Daubert, 509 U.S. at 595; Walker, 208 F.3d at 587). However, an expert must explain the methodologies and principles that support his or her opinion; he or she cannot simply assert a "bottom line" or ipse dixit conclusion. Metavante Corp., 619 F.3d at 761 (quoting Minix v. Canarecci, 597 F.3d 824, 835 (7th Cir. 2010)).

Lastly, the district court must consider whether the proposed testimony will assist the trier of fact in its analysis of any issue relevant to the dispute. See Smith, 215 F.3d at 718; Chapman, 297 F.3d at 687; Daubert, 509 U.S. at 592. It is crucial that the expert "testify to something more than what is 'obvious to the layperson' in order to be of any particular assistance to the jury.'" Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998)). However, the expert need not have an opinion as to the ultimate issue requiring resolution to satisfy this condition. Smith, 215 F.3d at 718 (citing Walker, 208 F.3d at 587).

Resolution of an expert's credibility or the correctness of his or her theories under the particular circumstances of a given case is a factual inquiry, left to the jury's determination after opposing counsel has cross-examined the expert at issue as to the conclusions and facts underlying his or her opinion. Smith, 215 F.3d at 718 (citing Walker, 208 F.3d at 589-90). Thus, "[i]t is not the trial court's role to decide whether an expert's opinion is correct. The trial court is limited to determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound." Smith, 215 F.3d at 718 (citing Kumho, 526 U.S. at 159 (Scalia, J., concurring) (stating that the trial court's function under Daubert is to exercise its discretion "to choose among reasonable means of excluding expertise that is fausse and science that is junky")).

While the Seventh Circuit has assumed that Daubert's requirements of reliability and relevancy continue to apply in a bench trial, the court has recognized that "the usual concerns of the rule-keeping unreliable expert testimony from the jury-are not present in such a setting . . . ." Metavante Corp., 619 F.3d at 760. "It is not that evidence may be less reliable during a bench trial; it is that the court's gatekeeping role is necessarily different." In re Salem, 465 F.3d at 777. "Nevertheless, the 'court must provide more than just conclusory statements of admissibility or ...


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