The Cincinnati Insurance Company v. Omega Flex, Inc.

Filing 109

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge James D. Moyer on 5/15/13 denying 100 Motion for Reconsideration as set forth. The Ct will reserve ruling on Dft's motion to exclude, or in the alternative, to limit the testimony DN 94 until trial to determine the relevancy, if any, of testimony. cc:counsel (SJS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-00670-M

THE CINCINNATI INSURANCE COMPANY,

PLAINTIFF

V.
OMEGA FLEX, INC.,

DEFENDANT

MEMORANDUM OPINION AND ORDER
In anticipation of the upcoming jury trial, counsel for both parties appeared on May 13,
2013 before the court as part of a pre-trial telephonic conference to discuss pending matters.
There are some outstanding motions upon which the court has yet to resolve. As discussed with
the parties, the court does not want to prematurely rule on some motions until the record
develops at trial. However, the court is prepared to rule on plaintiff’s motion for reconsideration
of the court’s order limiting the testimony of Dr. Thomas Eager.
On April 5, 2012, the Honorable John G. Heyburn II entered an order limiting the
testimony of Dr. Thomas Eager, plaintiff’s metallurgist expert. ECF No. 91. The court held that
“Dr. Eager may not opine generally as to the standard of care of manufacturers or specifically as
to Omega Flex’s conduct. Such opinions are outside his field of expertise, metallurgy.” Id.
Plaintiff then moved the court to reconsider its order.
Generally, courts treat a motion to reconsider as a motion to alter or amend judgment
under Federal Rule of Civil Procedure 59(e). Inge v. Rock Fin. Corp., 281 F.3d 613, 617 (6th
Cir. 2002). A court may grant such a motion where there “is a clear error of law, newly
discovered evidence, an intervening change in controlling law, or to prevent manifest injustice.

GenCorp, Inc. v. Am. Intern. Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal
quotations omitted). Merely rehashing prior arguments is not the proper purpose of a motion to
reconsider. Carter v. Porter, 2009 WL 960144, *1 (E. D. Ky. Apr. 6, 2009).
Plaintiff argues that the court committed clear error in limiting Dr. Eager’s testimony.
Specifically, Plaintiff contends that Dr. Eager is qualified to provide an expert opinion that
Omega Flex’s conduct violated the standard of care applicable to manufacturers.

Plaintiff

maintains that the court should permit Dr. Eager to testify concerning a manufacturer’s standard
of care given his education, research and experience on manufacturing issues.
The Court is unpersuaded by plaintiff’s arguments for two reasons. First, the testimony
at issue is in the form of an unsupported legal conclusion that embraces an ultimate issue of the
case. Pursuant to Federal Rule of Civil Procedure 702, the court’s primary consideration in the
admission of expert testimony is whether such testimony will assist the trier of fact. In Dr.
Eager’s report, he stated that Omega Flex violated the standard of care expected of a
manufacturer when it failed to warn the public of the danger posed by Tracpipe even after it
became aware of the risk of lighting induced failures. Given that this is both a strict liability and
negligence case, such testimony will not assist so much as commandeer the jury in evaluating
whether Omega Flex violated the applicable standard of care required of a manufacturer. The
testimony runs a real risk of invading the province of the jury and deciding an ultimate legal
issue. See Thalji v. TECO Barge Line, 2007 WL 7702719, * 1 (W.D. Ky. July 13, 2007)
(“Although an expert’s opinion may embrace an ultimate issue to be decided by the trier of fact,
the issue embraced must be a factual one. . . . An expert who supplies nothing but a bottom line
supplied nothing of value to the judicial process.”) (internal quotations omitted).

Second, the excluded testimony runs afoul of Federal Rule of Civil Procedure 403
because its probative value is outweighed by its potential prejudicial effect. Dr. Eager provides
no empirical testing or methodology in support of his opinion, other than his general
observations. However, the shroud of expertise will likely elevate his opinion above a mere
observation to a legal conclusion. See Hayes v. MTD Products, Inc., 518 F. Supp. 2d 898, 901
(W. D. Ky. 2007) (holding that legal conclusions are reserved for the jury). The jury could
potentially afford greater weight than it should to his opinion that Omega Flex violated the
applicable standard of care for manufacturers, thereby unduly prejudicing Omega Flex. Plaintiff
has failed to meets its burden of demonstrating to the court that it made a clear error of law in its
previous order.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration of the court’s
order limiting the testimony of Dr. Thomas Eager, ECF No. 100, is DENIED. As previously
held, Dr. Eager may only testify to the metallurgically significant features and properties of the
CSST, and may not testify as to the standard of care for manufacturers.
IT IS FURTHER ORDERED that the court will reserve ruling on Defendant’s motion to
exclude, or in the alternative, to limit the testimony of Arthur Weirach, ECF No. 94, until trial to
determine the relevancy, if any, of his testimony.
This 15th day of May, 2013.

cc:

Counsel of Record

TIC: 1 hour, 10 mins.

May 15, 2013