United States District Court, W.D. Kentucky, Louisville Division
GULF STATES PROTECTIVE COATINGS, INC. PLAINTIFF
CALDWELL TANKS, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE.
matter is before the Court on Caldwell Tanks, Inc.'s
Motion to Partially Exclude Opinion Testimony by Jeffrey Katz
[DN 38]. Fully briefed, this matter is ripe for decision. For
the following reasons, Caldwell Tank, Inc.'s Motion is
case arises from a series of subcontract agreements between
Gulf States Protective Coatings, Inc. (“Gulf
States”) and Caldwell Tanks, Inc. (“Caldwell
Tanks”). Caldwell Tanks was hired to construct,
furnish, and install three 1, 000, 000-gallon elevated water
storage tanks in Fort Belvoir, Virginia. In the course of
this project, Caldwell Tanks entered into three separate
subcontract agreements with Gulf States. In those
subcontracts, Gulf States agreed to perform work on each of
the water storage tanks, specifically sandblasting, priming,
and cleaning the tanks “to ensure final completion of
the work.” (Amend. Compl. ¶ 11.)
the relationship of the parties deteriorated. Ultimately,
Caldwell Tanks terminated the contracts. Gulf States filed
this lawsuit seeking payment for the work it performed.
Caldwell Tanks counterclaimed seeking damages for costs it
incurred completing the work Gulf States did not finish.
of their expert disclosures, Gulf States revealed that it
intended to use the expert testimony of Jeffrey Katz. (Expert
Disclosures [DN 35] at 2.) Caldwell Tanks seeks to exclude
portions of Katz's testimony, specifically Katz's
opinions that (1) Caldwell's failure to pay Gulf States
was a material breach of the subcontracts; and (2) Gulf
States was entitled to an extension of time to perform its
work due to inclement weather encountered while Gulf States
was working on the project that constitute excusable delays.
(Mem. in Support of Mot. to Partially Exclude [DN 38-1] at
Standard of Review
Evid. 702 permits opinion testimony by witnesses who are
sufficiently qualified to testify as experts:
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 upon sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the witness has reliably applied the
principles and methods to the facts of the case.
Civ. P. 702. The Sixth Circuit has interpreted Rule 702 so as
to impose three requirements for expert testimony:
First, the witness must be qualified by “knowledge,
skill, experience, training, or education.” Fed.R.Evid.
702. Second, the testimony must be relevant, meaning that it
“will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Id.
Third, the testimony must be reliable. Id.
In re Scrap Metal Antitrust Litig., 527 F.3d 517,
528-29 (6th Cir. 2008).
determining whether testimony is reliable, the Court's
focus “must be solely on principles and methodology,
not on the conclusions they generate.” Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993). The
Supreme Court identified a non-exhaustive list of factors
that may help the Court in assessing the reliability of a
proposed expert's opinion, including: (1) whether a
theory or technique can be or has been tested; (2) whether
the theory has been subjected to peer review and publication;
(3) whether the technique has a known or potential error
rate; and (4) whether the theory or technique enjoys
“general acceptance” within a “relevant
scientific community.” Id. at 592-94. Yet,
these Daubert facts “are not dispositive in every case
and should be applied only where they are reasonable measures
of the reliability of expert testimony.” In re Scrap
Metal, 527 at 529 (internal quotation marks omitted). The
purpose of the rule is “to make certain that an expert,
whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). “Red flags
that caution against certifying an expert include reliance on
anecdotal evidence, improper extrapolation, failure to
consider other possible causes, lack of testing, and
subjectivity.” Newell Rubbermaid, Inc. v.
Raymond Corp., 676 F.3d 521, 527 (6th Cir.
Fed.R.Evid. 704 has also made clear that “[a]n opinion
is not objectionable just because it embraces an ultimate
issue.” However, this inclusion of opinions that go to
the ultimate issue in a case “does not lower the bars