Marvin Lumber and Cedar Company et al v. Sapa Extrusions, Inc.

Filing 409

ORDER denying 263 Motion; denying 267 Motion; denying 271 Motion; denying 274 Motion; denying 277 Motion; denying 283 Motion; denying 286 Motion; denying 289 Motion; denying 292 Motion; denying 295 Motion; denying 299 Motion. (Written Opinion). Signed by Judge Richard H. Kyle on 04/18/13. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Marvin Lumber and Cedar Company, et al.,
Plaintiffs,

Civ. No. 10-3881 (RHK/LIB)
ORDER

v.
Sapa Extrusions, Inc.,
Defendant.

Sapa Extrusions, Inc.,
Third-Party Plaintiff,
v.
The Valspar Corporation,
Third-Party Defendant.

This matter is before the Court on the parties’ eleven Motions to exclude certain
expert evidence under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). 1 The Court has carefully considered the
abundant materials submitted by the parties supporting and opposing the Motions.

1

The Motions are Doc. No. 263 (concerning Dr. Robert Iezzi); Doc. No. 267 (concerning Dr.
Allise Wachs); Doc. No. 271 (concerning Donald Gorowsky); Doc. No. 274 (concerning Dr.
Wachs, Gorowsky, and the “coastal sales estimate”); Doc. No. 277 (concerning Dr. Rudolph
Buchheit); Doc. No. 283 (concerning Alan Salzberg); Doc. No. 286 (concerning Cynthia
O’Malley); Doc. No. 289 (concerning David Duffus); Doc. No. 292 (concerning Andrew Hirt);
Doc. No. 295 (concerning Gordon Smith); and Doc. No. 299 (concerning O’Malley and JanOlov Nilsson).

Rule 702, which governs the admission of expert testimony, provides:
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.
The Court, acting as a “gatekeeper,” must evaluate whether proffered expert testimony
passes muster under Rule 702, bearing in mind that the touchstone for admitting such
testimony is assistance to the trier of fact. See, e.g., Larson v. Kempker, 414 F.3d 936,
941 (8th Cir. 2005). The threshold is low – expert testimony should be admitted if it
“advances the trier of fact’s understanding to any degree.” Robinson v. GEICO Gen. Ins.
Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (emphasis added) (internal quotation marks and
citations omitted). In other words, only if the proffered testimony is “so fundamentally
unsupported that it can offer no assistance to the jury” should it be excluded. United
States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (citations omitted).
As the Eighth Circuit has recognized, Rule 702 “reflects an attempt to liberalize
. . . the admission” of expert testimony and “clearly is one of admissibility rather than
exclusion.” Polski v. Quigley Corp., 538 F.3d 836, 838-39 (8th Cir. 2008) (emphases
added). As a result, courts must resolve doubts regarding the usefulness of an expert’s
testimony in favor of admissibility, Finch, 630 F.3d at 1062, and “[g]aps in an expert
witness’s qualifications or knowledge generally go to the weight of the witness’s
testimony, not its admissibility,” Robinson, 447 F.3d at 1100. Hence, “the rejection of
expert testimony is the exception rather than the rule.” Id.
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Bearing the above principles in mind, the Court concludes that nearly all of the
parties’ objections to the proffered expert evidence in this case go to the weight of that
evidence and not its admissibility. Moreover, the Court believes that the evidence is
sufficiently reliable to be admitted under Daubert. The parties will have ample
opportunity at trial to explore the bases for the challenged evidence through “[v]igorous
cross-examination” and the “presentation of contrary evidence.” Daubert, 509 U.S. at
598. Furthermore, certain evidence has been objected to on relevance grounds, but
Federal Rule of Evidence 401 – deeming evidence relevant if it has “any tendency to
make a fact more or less probable” (emphasis added) – sets an extremely low bar that the
Court concludes has been cleared here. See, e.g., United States v. Holmes, 413 F.3d 770,
773 (8th Cir. 2005) (“The threshold for relevance is ‘quite minimal.’”) (quoting United
States v. Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir. 1997)). Finally, the Court believes
that the proffered evidence will assist the jury’s understanding of the complex issues
raised in this case. Robinson, 447 F.3d at 1100.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that each of the parties’ Motions (Doc. Nos. 263, 267, 271, 274, 277, 283,
286, 289, 292, 295, and 299) is DENIED. The parties are reminded that discovery in this
case is closed. No expert testifying at trial should expand his or her opinions beyond
those in his or her expert report (or rebuttal report).

Dated: April 18, 2013

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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