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)

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
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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.”)
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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

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