58 Swansea Mall Drive LLC v. Gator Swansea Property LLC

Filing 199

Judge Richard G. Stearns: ORDER entered denying 169 Motion in Limine (RGS, law2)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 15-13538-RGS 58 SWANSEA MALL DRIVE, LLC v. GATOR SWANSEA PROPERTY, LLC MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION UNDER DAUBERT TO PRECLUDE TESTIMONY OF MARK TYBURSKI September 20, 2017 STEARNS, D.J. Plaintiff 58 Swansea Mall Drive, LLC (Swansea), seeks to preclude the testimony of Mark Tyburski, defendant Gator Swansea Property LLC’s (Gator) proposed rebuttal witness on damages, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).1 The court will deny the motion. Although a footnote (n.8 at 509 U.S. 590) had led many courts and commentators to conclude that the Supreme Court had intended Daubert’s “gatekeeper” provision to apply only to expert opinion based on novel scientific theory and hypothesis and not to opinions based on experience, training, empirical observation, or technical expertise, the Court subsequently made it clear that Daubert applies to expert testimony generally. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (“We conclude that Daubert’s general holding – setting forth the trial judge’s general ‘gatekeeping’ obligation – applies not only to testimony based on 1 While Swansea raises a number of potential concerns regarding Tyburski’s credibility, “[a] trial setting normally will provide the best operating environment for the triage Daubert demands,” Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184, 188 (1st Cir. 1997). “[C]ourts must be cautious — except when defects are obvious on the face of a proffer — not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility.” Id. This cautious approach is even more warranted in a bench trial. See, e.g., In Re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (noting that “[t]he main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony,” and that a “less stringent application of Daubert in bench trials” is appropriate); United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005) (suggesting that Daubert has a relaxed application to bench trials “where the judge is serving as factfinder and we are not concerned about ‘dumping a barrage of questionable scientific evidence on a jury’”) (internal citation omitted). The court, at trial, will of course “make certain that [the] expert, whether basing testimony upon professional studies or personal experience, ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”) 2 employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. ORDER For the foregoing reasons, 58 Swansea’s motion to preclude Tyburski’s testimony (Dkt #169) is DENIED. SO ORDERED. /s/ Richard G. Stearns __________________________ UNITED STATES DISTRICT JUDGE 3

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