ZAGKLARA v. SPRAGUE ENERGY CORP

Filing 151

ORDER ON MOTION TO EXCLUDE TESTIMONY OF PAUL ZORIC re: denying without prejudice- 116 Motion Exclude Testimony of Plaintiff's Expert By JUDGE GEORGE Z. SINGAL. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EIRINI ZAGKLARA, individually and
as personal representative of the estate of
IOANNIS ZAGKLARAS,
Plaintiff,
v.
SPRAGUE ENERGY CORP.,
Defendant & Third Party
Plaintiff,
v.
LEOPARD SHIPPING et al.,
Third Party Defendants.

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ORDER ON MOTION TO EXCLUDE TESTIMONY OF PAUL ZORICH
Before the Court is Defendant’s Daubert Motion to Exclude the Testimony of Plaintiff’s
Expert, Paul Zorich, at Trial (ECF No. 116). As explained herein, the Court hereby DENIES the
Motion to Exclude WITHOUT PREJUDICE to Defendant renewing its objections pursuant to
Rule 702 at trial.
I.

LEGAL STANDARD
Under 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.

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F.R.E. 702. In fulfilling its role as the gatekeeper of evidence that qualifies for admission under
Rule 702, the trial court is tasked with “mak[ing] certain that an expert, whether basing
testimony on 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., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). It is the proponent of the
challenged expert who carries the burden of proof when an expert is the focus of the Rule 702
objection. See, e.g., Thorndike v. DaimlerChrysler Corp., 266 F. Supp. 2d 172, 175 (D. Me.
2003). As the First Circuit has explained:
So long as an expert's scientific testimony rests upon ‘good grounds,’ based on
what is known, it should be tested by the adversarial process, rather than excluded
for fear that jurors will not be able to handle the scientific complexities. 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.
Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11, 15 (1st Cir. 2011) cert. denied,
132 S. Ct. 1002 (2012) (internal quotations and citations omitted). With this standard in mind,
the Court considers whether Mr. Zorich, a civil engineer with specialized experience in cranes
and other lifting devices, should be allowed to testify at the upcoming jury trial in this matter.
II.

DISCUSSION
Before addressing the Defendant’s substantive objection to Mr. Zorich’s testimony, the

Court first discusses Defendant’s renewed argument that Mr. Zorich’s testimony should be
excluded because his opinions were disclosed in an untimely manner earlier in this case.
The belatedness of Mr. Zorich’s more detailed expert report was a topic thoroughly
discussed in the July 2, 2012 Memorandum Decision on Motion to Exclude Expert Report and
Recommended Decision on Summary Judgment (ECF No. 97), which was affirmed by this Court
on August 24, 2012 (ECF No. 108). The Court incorporates that prior discussion without
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repeating it in full in this Order. As discussed in that prior decision, Plaintiff initially designated
Zorich on May 27, 2011 but Defendant immediately objected that the initial designation was
inadequate.

Plaintiff finally produced a more detailed expert report from Mr. Zorich on

November 22, 2011 and attempted to use that report to defeat a motion for summary judgment
that Defendant had previously filed on October 24, 2011. Given this timing, the Court refused to
consider the Zorich Report in connection with the motion for summary judgment.
In the Court’s view, the legitimate concerns that prompted the exclusion of Zorich’s
November 2011 report do not provide any basis for excluding Zorich from testifying at a to-bescheduled trial in 2013. Rather, Defendant has had ample time to cure any prejudice from the
delayed disclosures contained in the November 2011 report.1 Under these circumstances, the
Court concludes that the delayed disclosure was harmless with respect to Defendant’s ability to
depose Mr. Zorich and prepare to cross-examine him at trial.
Turning to Rule 702, Defendant argues that Mr. Zorich’s proffered testimony “lacks the
indicia of reliability” required to assist the trier of fact. (Def. Mot. (ECF No. 116) at 7.)
Ultimately, Defendant objects to the factual basis of Mr. Zorich’s testimony arguing that his
opinion assumes movement of the crane caused the accident but “there is no evidence that the
crane moved at the time of the accident.” (Def. Mot. at 9.) However, Plaintiff disputes this
assertion. Specifically, Plaintiff points to the deposition of Dwayne Grinnell as an eyewitness
who claimed to have seen the crane at a 90-degree angle from the ship immediately after the
accident. (See, e.g., Grinnell Dep. (ECF 81-9) at Page ID # 622.) Ultimately, the jury will need
to weigh testimony of a number of individuals present at the scene, along with other evidence, to

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In fact, since the Court’s decision on summary judgment, Plaintiff has offered to produce Mr. Zorich for deposition
and cover all costs related to such a deposition. (See 9/28/2012 email from D. Anderson to M. Savasuk and J. Bass
(ECF No. 133-1).) Defendant cannot claim prejudice from lack of an opportunity to depose the challenged expert
given this offer.
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determine whether the crane moved during the course of the accident. If the jury were to credit
the testimony of Mr. Rankin, the crane operator, the facts would not support the theory espoused
by Mr. Zorich. However, at this stage, the Court cannot determine which eyewitnesses and
evidence the jury will credit in deciding how the crane was positioned immediately prior and
immediately after the accident. See, e.g., Crowe v. Marchand, 506 F.3d 13, 18 (1st Cir. 2007)
(“Objections . . . which question the factual underpinnings of an expert's investigation, often go
to the weight of the proffered testimony, not to its admissibility. As such, these matters are for
the jury, not for the court. This is as it should be; the district court's gatekeeping function ought
not to be confused with the jury's responsibility to separate wheat from chaff.”) (citations and
footnote omitted); Brown v. Wal–Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (D. Me. 2005)
(“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony,
not the admissibility, and it is up to the opposing party to examine the factual basis for the
opinion in cross-examination. It is only if an expert's opinion is so fundamentally unsupported
that it can offer no assistance to the jury [that] such testimony [must] be excluded on
foundational grounds.”) (citations and internal quotation marks omitted). Likewise, the Court
will not exclude Mr. Zorich from testifying based on Defendant’s objection regarding the lack of
measurements in the Zorich report, this is an issue that goes to the weight of his expert testimony
and is readily probed via cross-examination.2 See, e.g., Brown, 303 F. Supp. 2d at 309.
At trial, the Court will require the factual basis for Mr. Zorich’s theory to be admitted or
at least shown to be admissible prior to allowing him to give his opinion before the jury.
However, on the current available record, the Court concludes that Mr. Zorich’s proposed

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To the extent Defendant has objected to admission of Zorich’s November 2011 Report, the Court does not
anticipate actually admitting the Zorich Report for the truth of the opinions and factual assertions contained in the
report. See F.R.E. 801 & 802. However, the parties are free to seek admission of the report if they believe that the
report falls within some exception to the hearsay rules. See F.R.E. 801(d) & 803.
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testimony falls within Rule 702’s limits. Therefore, the Court DENIES Defendant’s Daubert
Motion to Exclude the Testimony of Plaintiff’s Expert, Paul Zorich, at Trial (ECF No. 116)
WITHOUT PREJUDICE to Defendant renewing its objections based on the factual record
developed at trial.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 15th day of January, 2013.

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