United States District Court, E.D. Arkansas, Western Division
STATE FARM FIRE AND CASUALTY, as Subrogee of Michael Crockett and Holly Crockett PLAINTIFF
OMEGA FLEX, INC. DEFENDANT
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE.
Farm Fire and Casualty has filed two motions to exclude
expert testimony that the defendant, Omega Flex, Inc.,
intends to offer. The first motion seeks to exclude opinion
testimony of Dr. Harri Kytomaa. The second motion seeks to
exclude the testimony of Dr. Matthew Wagenhofer.
Farm brings this action as subrogee of Michael and Holly
Crockett, whose home suffered fire damage following a
lightning strike on May 9, 2015. Omega Flex manufactured
yellow-jacketed TracPipe brand Corrugated Stainless Steel
Tubing, which was installed in the Crocketts' home. The
complaint alleges that Omega Flex negligently designed,
prepared, manufactured and sold the TracPipe, that the
product was unreasonably dangerous, and that the defects in
the product proximately caused the fire at the Crocketts'
of expert evidence in federal court is governed by Federal
Rule of Evidence 702, as interpreted by the Supreme Court
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702
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.
Rule 702, the Court must ensure that a proffered expert is
qualified by his knowledge, skill, experience, training, or
education before that person may testify as an expert.
Besides examining a proffered expert's qualifications,
the Supreme Court stated in Daubert that the trial
judge also has a gatekeeping responsibility to ensure that
expert evidence is both relevant and reliable before
admitting it. Daubert, 509 U.S. at 589, 113 S.Ct. at
2795; Kumho Tire Co. v. Carmichael, 526 U.S. 137,
141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). Regarding
relevancy, the Supreme Court stated that Rule 702 requires
the proffered expert testimony to relate to an issue in the
case and also to be sufficiently tied to the facts of the
case, i.e., that the expert testimony has appropriate
“fit.” Daubert, 509 U.S. at 591, 113
S.Ct. at 2795-96; see also Lauzon v. Senco Prods.,
Inc., 270 F.3d 681, 694 (8th Cir. 2001). As to
reliability, the Supreme Court stated that the inquiry
envisioned by Rule 702 is a “flexible one.”
Daubert, 509 U.S. at 594, 113 S.Ct. at 2797. The
inquiry should focus on the principles and methodology the
expert uses and not on the conclusions generated.
Id. at 595, 113 S.Ct. at 2797. The Daubert
Court gave four factors that should guide a district
court's analysis: (1) whether the theory can be or has
been tested; (2) whether the theory has been subjected to
peer review and publication; (3) in the case of a particular
scientific technique, what the known or potential rate of
error is and the existence and maintenance of standards
controlling the technique's operation; and (4) whether
the theory has received “general acceptance” in
the relevant scientific community. Id. at 593-94,
113 S.Ct. at 2796-97. The Court noted that many factors will
bear on the inquiry and that the four factors given above
should not be taken as a “definitive checklist or
test.” Id. at 593, 113 S.Ct. at 2796;
Kumho Tire, 526 U.S. at 141-42, 119 S.Ct. at 1171.
In addition to the four factors explicitly listed by the
Supreme Court in Daubert, courts after
Daubert have noted additional relevant factors,
including “whether the expertise was developed for
litigation or naturally flowed from the expert's
research; whether the proposed expert ruled out other
alternative explanations; and whether the proposed expert
sufficiently connected the proposed testimony with the facts
of the case.” Lauzon, 270 F.3d at 687 (citing
trial court's role is not to determine whether an
expert's opinion is correct; it is an expert
witness's methodology, rather than his conclusions, that
is the primary concern of Rule 702. Bonner v. ISP Techs.,
Inc., 259 F.3d 924, 929 (8th Cir. 2001).
“‘[E]ven if the judge believes there are better
grounds for some alternative conclusion, and that there are
some flaws in the scientist's methods, if there are good
grounds for the expert's conclusion it should be admitted
. . . .'” Id. (quoting Heller v. Shaw
Indus., 167 F.3d 146, 152-53 (3d Cir. 1999)).
“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at
596, 113 S.Ct. at 2798. “Rule 702 favors admissibility
if the testimony will assist the trier of fact, and doubts
regarding whether an expert's testimony will be useful
should generally be resolved in favor of
admissibility.” Clark v. Heidrick, 150 F.3d
912, 915 (8th Cir. 1998) (citation and quotation omitted).
“Only if an expert's opinion is ‘so
fundamentally unsupported that it can offer no assistance to
the jury' must such testimony be excluded.”
Hose v. Chicago Nw. Transp. Co., 70 F.3d 968, 974
(8th Cir. 1995) (quoting Loudermill v. Dow Chem.
Co., 863 F.2d 566, 570 (8th Cir. 1988)).
Kytomaa's proposed testimony meets the requirements of
Rule 702 as interpreted by the Supreme Court in
Daubert. It is based upon sufficient facts, it is
the product of reliable principles and methods, and Dr.
Kytomaa has applied the principles and methods reliably to
the facts of this case. It appears that he has used
scientific principles that have been subjected to peer review
and publication, as indicated by the citations to
peer-reviewed publications in his report. Furthermore, it
appears that he has used scientific principles that are
generally accepted in the relevant scientific community.
Although State Farm criticizes Dr. Kytomaa on several points,
that criticism should appropriately be developed on
cross-examination and submitted to the jury for its
consideration in determining the credibility of Dr.
proposed testimony of Dr. Wagenhofer is different. Dr.
Wagenhofer proposes to testify regarding two specific
instances in which black iron pipe reportedly failed. Neither
of those instances involved a lightning strike. State Farm
argues that Dr. Wagenhofer's testimony is irrelevant and
based purely on speculation. Omega Flex argues that Dr.
Wagenhofer's testimony is relevant, pointing to arguments
by State Farm that black iron pipe is a safe alternative to
Omega Flex's TracPipe and contending that Dr.
Wagenhofer's testimony is relevant to rebut that
careful consideration, the Court will postpone ruling on the
admissibility of Dr. Wagenhofer's testimony until State
Farm has concluded its case-in-chief at trial. After hearing
all of the evidence, the Court will be in a better position
to judge whether that testimony is relevant under Rule 401.
If the testimony is relevant, at that time the Court can
better judge whether its probative value is substantially
outweighed by the danger of confusing the issues, misleading
the jury, undue delay, and wasting time. See Fed. R.
Evid. 403. One of the concerns is whether Dr.
Wagenhofer's proposed testimony may result in mini-trials
over the cause of two incidents that may be only remotely
relevant to the issues of this case. The Court can assess
these concerns better at trial than now.
motion to exclude the testimony of Dr. Kytomaa is DENIED.
Document #42. This is a definitive ruling.
motion to exclude the testimony of Dr. Wagenhofer is also
DENIED. Document #43. This is not a definitive ruling. The
Court will reconsider the issue after ...