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First Technology Capital, Inc. v. Banctec, Inc.

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

September 26, 2017

BANCTEC, INC., Defendant.


          Robert E. Wier, United States Magistrate Judge

         The summary judgment bell has rung, and this case moves to the next round, requiring the Court to evaluate the admissibility of potential expert testimony in its Daubert gatekeeper role. FTC seeks the exclusion of “virtually all” of James G. Herblin's anticipated testimony, and BancTec seeks the exclusion of Shán O'Keeffe's[1] and Thomas Sexton's potential testimony. See DE ##73 (Herblin Motion); 75 (O'Keeffe Motion); 76 (Sexton Motion). The matters are fully briefed and ripe for consideration.[2] DE ##79, 81, 82, 88. For the following reasons, the Court GRANTS IN PART and DENIES IN PART DE #73, wholly DENIES DE #75, and GRANTS IN PART and DENIES IN PART DE #76.


         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. This Rule erects a “gate an expert witness must pass through on his way to court-one both inviting and imposing at the same time.” Lackey v. Robert Bosch Tool Corp., No. 16-29-ART, 2017 WL 129891, at *1 (E.D. Ky. Jan. 12, 2017) (referencing “the three keys the gate requires: proving that the witness is qualified, his testimony relevant, and his opinions reliably formed”).

         Facing challenges to several purported experts, the Court acts as gatekeeper to evaluate the admissibility of each potential witness's testimony. Daubert v. Merrell Dow Pharm., Inc., 113 S.Ct. 2786, 2798-99 (1993) (“assign[ing] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand”); see also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999) (applying the Daubert inquiry to non-scientific testimony); United States v. LaVictor, 848 F.3d 428, 440-44 (6th Cir. 2017); Lee v. Smith & Wesson Corp., 760 F.3d 523, 526-28 (6th Cir. 2014); In re Scrap Metal, 527 F.3d at 528-32; United States v. Jones, 107 F.3d 1147, 1150-61 (6th Cir. 1997). The Sixth Circuit recently explained:

Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science' on the other. For expert testimony to be admissible, the court must find the expert to be: (1) qualified; (2) her testimony to be relevant; and (3) her testimony to be reliable. There is no ‘definitive checklist or test' for striking this balance, but the Supreme Court in Daubert did identify four factors that normally bear on the inquiry: [(1)] whether a theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the standards controlling the technique's operation; and (4) whether the theory or technique has been generally accepted in the particular scientific field.

LaVictor, 848 F.3d at 441 (citations and internal formatting removed); see also In re Scrap Metal, 527 F.3d at 529. As then-District Judge Thapar described:

The Supreme Court in Daubert provided a list of factors for trial courts to consider as they evaluate the reliability of scientific testimony. Daubert, 509 U.S. at 593-94; see also In re Scrap Metal, 527 F.3d at 529. But that list is not exhaustive, nor any one factor dispositive. See In re Scrap Metal, 527 F.3d at 529. Rather, district courts have ‘considerable leeway' in determining whether expert testimony is admissible. See Meridia Prods. Liab. Litig. v. Abbot Labs, 447 F.3d 861, 868 (6th Cir. 2006) (quoting Kumho Tire, 526 U.S. at 152). But the burden remains on the proponent of the testimony to establish its admissibility by a preponderance of the evidence. Pride v. Bic Corp., 218 F.3d 566, 578 (6th Cir. 2000).

Lackey, 2017 WL 129891, at *2. Thus, under “Daubert and its progeny, a party proffering expert testimony must show by a ‘preponderance of proof' that the expert whose testimony is being offered is qualified and will testify to scientific knowledge that will assist the trier of fact in understanding and disposing of issues relevant to the case.” Pride, 218 F.3d at 578.

         In the Sixth Circuit, “rejection of expert testimony is the exception, rather than the rule[.]” In re Scrap Metal, 527 F.3d at 530. “The relevancy bar is low, demanding only that the evidence logically advances a material aspect of the proposing party's case.” LaVictor, 848 F.3d at 442 (internal quotation marks removed). The Circuit directs that “Rule 702 should be broadly interpreted on the basis of whether the use of expert testimony will assist the trier of fact.” Id. “When there is a factual issue in dispute that expert testimony can clarify, there are limited grounds for rejecting the testimony of the expert witness.” Id.; see also Lee, 760 F.3d at 528 (holding that a “mismatch between [two expert] theories of whether the cylinder was fully closed should not have precluded the admissibility of [one particular] expert opinion”).

         The Court of Appeals “recognize[s] that a district court operates with wide latitude in deciding how to test an expert's reliability, and, as such, must be afforded considerable leeway in deciding how to go about determining whether particular expert testimony is reliable.” LaVictor, 848 F.3d at 443 (internal quotation marks and alteration removed). While these principles do not “require[] a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert, a court must be sure not to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.” In re Scrap Metal, 527 F.3d at 529 (cautioning courts not to “confuse[] the credibility and accuracy of [an] opinion with its reliability” (internal italics removed)) (internal quotation marks and citation removed). “Instead, the requirement that an expert's testimony be reliable means that it must be supported by appropriate validation-i.e., good grounds, based on what is known.” Id. (internal quotation marks removed). “The task for the district court in deciding whether an expert's opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.” Id. at 529-30.


         The Court has carefully assessed the motions under the applicable standards, taking into account the materials tendered (including the full depositions, the reports, and all exhibits). The Court largely denies ...

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