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Prime Finish, LLC v. ITW Deltar IPAC

United States District Court, E.D. Kentucky, Central Division, Lexington

May 5, 2017

PRIME FINISH, LLC, Plaintiff, and CAMEO, LLC, Intervenor Plaintiff,


          Gregory F. Van Tatenhove United States District Judge.

         “No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best.” Learned Hand, Historical & Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 40 (May 1901). As the above-styled civil jury trial approaches, Defendant seeks to exclude both expert witnesses noticed by the opposite side, alleging the proposed experts are unreliable, their findings lack a sufficient factual basis, and they will not assist the trier of fact. Specifically, the Defendant seeks to exclude both Plaintiff's experts, Mr. Hurley and Mr. Bacon. After reviewing the case law, record, and filings, and for the reasons that follow, the Court finds both experts should be allowed to testify and DENIES the pending motion to exclude.


         This lawsuit was initiated when Prime Finish LLC brought suit against Defendant ITW Deltar IPAC in 2008. [See R. 1.] The action was removed by Defendant from Bourbon Circuit Court. Cameo, LLC, intervened, and following a settlement agreement between Prime and ITW, became the only remaining party with claims against Defendant ITW. The factual predicate behind the instant action is set forth in greater detail in previous orders of the Court, and the most recent ruling on Defendant's Motions for Partial Summary Judgment. [See R. 180.] In short, Defendant ITW is accused of breaching a Product Supply Agreement that was made between ITW and Prime Finish. Cameo, as intended creditor beneficiary of the supply agreement, now sues ITW for the contract's early termination penalty and damages arising from ITW's alleged breach. Trial by jury is currently set to begin on May 16, 2017. [R. 120.]

         Several months ago the parties exchanged expert reports, prompting admissibility challenges from the Defendant, ITW. Defendant moves to exclude the testimony of Mr. David Bacon and Mr. Paul Hurley pursuant to Federal Rule of Evidence 702 and the legal standard established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). [R. 138.] Neither party requested an oral argument to discuss the expert's qualifications or the data used to formulate the expert reports.



         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. From Rule 702 comes a two part test for admitting expert testimony. First, is the expert qualified and the testimony reliable? And, second, is the evidence relevant and helpful to the trier of fact? See, e.g., United States v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997).

         The seminal case applying the first prong of the test is Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). In that decision, the Supreme Court explained that a district court's gatekeeping responsibility is implicit in Rule 702, “ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Further, the Supreme Court listed several specific factors to help determine the reliability of expert testimony based on scientific knowledge. See Id. at 590, n. 8. These factors include whether a theory or technique can be or has been tested; whether the theory has been subjected to peer review and publication; whether there is a high known or potential error rate; whether there are certain operation standards that should have been or were followed; and whether the theory or technique is generally accepted within the scientific community. Id. at 592-94. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court determined that the gatekeeping obligation and subsequent factors established in Daubert apply with equal force to non-scientific experts. However, those factors are not definitive and district courts “must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152.

         As for the second prong of the test, district courts “must ensure that the proposed expert testimony is relevant to the task at hand and will serve to aid the trier of fact.” United States v. Smithers, 212 F.3d 306, 313 (6th Cir. 2000). The Supreme Court in Daubert referred to this prong as the “fit” requirement. See id.; Daubert, 509 U.S. at 591-93. Because “scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes, ” courts must consider whether a particular expert's testimony will truly assist the trier of fact to understand the evidence in the case at hand. Daubert, 509 U.S. at 591.

         Notably, the Court's gatekeeping role under the case law “is not intended to supplant the adversary system or the role of the jury.” Allison v. McGhan Medical Corp., 184 F.3d 1300, 1311 (11th Cir. 1999). Instead, “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. Whether or not to admit expert testimony is a matter ...

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