Southern Minnesota Beet Sugar Cooperative v. Agri Systems
Filing
61
ORDER GRANTING DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY. (Written Opinion). Signed by Judge Wilhelmina M. Wright on 8/31/2020. (RJE)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Southern Minnesota Beet Sugar
Cooperative,
Case No. 17-cv-5552 (WMW/BRT)
Plaintiff,
ORDER GRANTING DEFENDANT’S
MOTION TO EXCLUDE EXPERT
TESTIMONY
v.
Agri Systems, doing business as
ASI Industrial, Inc.,
Defendant.
Defendant Agri Systems, doing business as ASI Industrial, Inc. (ASI), moves to
exclude the testimony of Plaintiff Southern Minnesota Beet Sugar Cooperative’s (SMBSC)
expert witness David Hallman. (Dkt. 44.) For the reasons addressed herein, ASI’s motion
is granted.
BACKGROUND
SMBSC is a Minnesota cooperative that processes sugar beets for sugar production.
ASI is a Montana corporation that designs and constructs agricultural storage and
processing facilities. In 2014, SMBSC and ASI entered into a contract, the Design-Build
Agreement (Agreement), for ASI to design and construct six sugar-storage silos for
SMBSC. The purpose of the silos was storage of the sugar, but another essential feature
was the ability to empty the sugar from the silos. The device used to remove the stored
sugar is a reclaimer. This device stirs the stored sugar so as to pull the sugar from the
perimeter of the silo into the center so that the sugar flows out of the silo during the
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emptying process. The reclaimer system that ASI designed included a platform near the
top of the silos, a drive system, a rail-and-trolley system from which the reclaimer hangs,
and an auger system that rotates around the interior of the silo while stirring sugar toward
the center of the silo.
The original reclaimer design that ASI contemplated used three trolleys per
reclaimer. Through each trolley was a large bolt that was perpendicular to the direction
the reclaimer traveled. However, the trolleys that ASI selected for the reclaimer system
included a pin, rather than a bolt, through the middle of each trolley. The bolt was secured
by a cotter pin on each end. The pin in the trolley was parallel, rather than perpendicular,
to the reclaimer’s direction of travel. ASI completed the silo project during the summer or
autumn of 2015. On December 30, 2015, in one of the six new silos, ASI’s reclaimer
system fell to the bottom of the silo. A cotter pin sheared, causing a trolley to separate
from its track, and Steve Bjordahl, an ASI engineer, opined in an email to his colleagues
about the parallel-oriented pin system:
I think the pin that the gantry hangs from is oriented the wrong
way. If the pin axis was perpendicular to the direction of travel,
then we wouldn’t be relying on scissor plates bending in the
weak direction and the cotter pins pressing against the scissor
plates. When the trolley hangs up, we’re using the pin in a way
it wasn’t intended to apply the force needed to drag the trolley.
It’s bass ackwards.
Acknowledging that a cotter pin should never be load-bearing, ASI’s expert, Dr. Gregory
D. Williams, opined that “[s]omething shifted that shouldn’t have shifted that caused the
load on the cotter pin.”
2
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As a result of the reclaimer’s failure, ASI reverted to a design similar to its original
plan, redesigning the trolley configuration to include a large pin that is perpendicular to the
direction of travel. At SMBSC’s request, ASI’s redesigned system included a mechanical
“failsafe” to prevent another “catastrophic failure.” ASI completed the first modification
to the reclaimer system in or about April 2016. But the system failed again in November
2017 when bolts used to hold the sides of the trolley together sheared. ASI added additional
bolts to the trolley to avoid another reclaimer failure.
SMBSC offers David Hallman as its expert to testify as to ASI’s allegedly negligent
design of the sugar-storage silos. Hallman’s educational attainment includes a Bachelor of
Science degree in mechanical engineering and a Master of Science degree in materials
science and engineering. He is a licensed engineer in Minnesota and seven other states.
Much of Hallman’s professional experience is in automobile-crash investigation and
reconstruction and fire investigation.1 Hallman’s work experience includes four years as a
design engineer, in which he designed various mechanical structures and equipment.
Hallman concedes that he has never performed any design work that did not involve a
vehicle. But his experience includes evaluating and analyzing system loading, system
1
Hallman’s professional affiliations include the National Association of Fire
Investigators, the Society of Automotive Engineers International, Accident Reconstruction
Network, the Midwest Association of Technical Accident Investigators, Southwestern
Association of Technical Accident Investigators, the National Association of Professional
Accident Reconstructionists, American Society for Testing and Materials International,
International Association of Arson Investigators, Article Peer Reviewer for Collision
Magazine, the American Academy of Forensic Sciences, the Minnesota Society of
Professional Engineers, and the National Society of Professional Engineers.
3
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fatigue, system resonance, and system stresses and strains. And Hallman has developed
safety factors based on predicted system loading.
Hallman completed four expert reports for this litigation. In his January 14, 2019
report, Hallman opines regarding both the standard of care and ASI’s breach of that
standard of care. Hallman explains that engineering design requires the applied loads to
be calculated and accounted for using engineering calculations and that appropriate
engineering calculations were not performed on the reclaimer system at issue here. ASI
also did not undertake a Failure Mode and Effects Analysis (FMEA), which involves a
review of failure modes, failure causes, and failure effects, Hallman concludes. Other
failings identified by Hallman include that ASI ignored the warnings in the trolley
manufacturer manual against using the trolleys for off-center loading, failed to consider
accelerated wheel deformation and wear, and ignored plainly visible deformation to trolley
parts that was evident in pictures and indicated overloading and misuse of the trolleys.
According to Hallman, ASI inappropriately selected trolleys that were not intended for
continuous movement. And ASI’s claim that it accounted for improper engineering design
by requesting SMBSC to limit control to the system is not a proper failsafe, Hallman
opines, because a mechanical system should be designed to either withstand worst-case
loading or have a mechanical failsafe.
In forming his opinions, Hallman reviewed photographs of the components, design
and redesign drawings, trolley literature, multiple depositions, and other record evidence.
He visited the site one time. But he concedes that he never examined the reclaimer system
prior to the two modifications and has never observed an ASI-built reclaimer in operation.
4
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Hallman also concedes that he did not test any component of the reclaimer system at any
time. Nor did he observe the cotter pins that were installed before the collapse or inspect
the bolt that sheered in November 2017.
In response to ASI’s production of RISA software files, Hallman concludes in his
second report that these files were a static structural analysis of the reclaimer system that
does not account for system dynamic loading of the trolleys, which makes the analysis
inadequate for system design. But Hallman subsequently acknowledged at his deposition
that he has never used the RISA software and does not know how multiple iterations of a
design are saved in the RISA files. Hallman viewed the RISA files on a demonstration
version of the program. And although he has never used RISA software, he is familiar
with ANSYS software and “assum[ed]” RISA works in the same manner.
Hallman completed his third report in response to the report of ASI’s expert,
Dr. Williams.
Hallman criticizes several of Dr. Williams’s opinions for a lack of
evidentiary support. Hallman explains that many of the calculations that Dr. Williams
performed were either inappropriate or inaccurate. But Hallman concedes that he did not
perform any calculations himself. Hallman also rejects Dr. Williams’s opinion that ASI
met the professional standard of care established by the code of ethics of the National
Society of Professional Engineers (NSPE) because ASI failed to follow two fundamental
canons of professional engineering ethics. First, ASI failed to consider safety as its primary
concern and, second, ASI designed a reclaimer system that was outside its area of
engineering expertise.
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Hallman released a supplemental report after all fact depositions were completed.
In that report he concludes that the reclaimer system failed as a direct result of ASI’s failure
to follow engineering best practices and failure to conduct an appropriate systems analysis.
Hallman did not define “engineering best practices” in any of his expert reports. But at his
deposition, Hallman explained that the appropriate standard of performance is determined
by the “canons of ethics” and the parties’ Agreement. The Agreement provides: “All
design and engineering and construction services and other Work of the Design-Builder
shall be performed in accordance with (a) the Contract Documents, (b) all Legal
Requirements, and (c) the professional standards applicable to the Work, buildings or work
of complexity, quality and scope comparable to the Work.” Hallman acknowledges that
the NPSE code of ethics does not regulate engineers in Minnesota. But he maintains that
engineers are “expected to follow” the NPSE code of ethics.
SMBSC commenced this lawsuit against ASI, alleging six causes of action.2 ASI
now moves the Court to exclude the expert testimony of Hallman.
ANALYSIS
The admissibility of expert testimony is governed by Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702
provides:
2
The Court has granted summary judgment in favor of ASI on SMBSC’s voidcontract claim. The Court also granted summary judgment in favor of ASI on SMBSC’s
product-defect claim as it is indistinguishable from the breach-of-contract claims.
SMBSC’s remaining claims include breach of contract, breach of express warranty, breach
of implied warranty, and professional negligence.
6
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A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
Fed. R. Evid. 702. The proponent of expert testimony must prove its admissibility by a
preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir.
2001). “Rule 702 reflects an attempt to liberalize the rules governing the admission of
expert testimony” and favors admissibility over exclusion. Id. (internal quotation marks
omitted).
A district court must ensure that testimony admitted under Rule 702 “is not only
relevant, but reliable.” Daubert, 509 U.S. at 589. “Engineering testimony rests upon
scientific foundations, the reliability of which will be at issue in some cases.” Kuhmo Tire
Co. v. Carmichael, 526 U.S. 137, 150 (1999). The objective of the Daubert inquiry is to
ensure that an expert, whether basing testimony upon 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. Id. at 152. A district court may consider
“whether the expertise was developed for litigation or naturally flowed from the expert’s
7
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research; whether the proposed expert ruled out other alternative explanations; and whether
the proposed expert sufficiently connected the proposed testimony with the facts of the
case.” Sappington v. Skyjack, Inc., 512 F.3d 440, 449 (8th Cir. 2008) (internal quotation
marks omitted). When weighing these factors, the district court must function as a
gatekeeper to separate “expert opinion evidence based on ‘good grounds’ from subjective
speculation that masquerades as scientific knowledge.” Glastetter v. Novartis Pharm.
Corp., 252 F.3d 986, 989 (8th Cir. 2001).
Expert testimony is not admissible if it is “speculative, unsupported by sufficient
facts, or contrary to the facts of the case,” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 757 (8th Cir. 2006), such that it is “so fundamentally unsupported that it can offer no
assistance to the jury,” Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 544 (8th Cir.
2006) (internal quotation marks omitted). But disputes about the factual basis of an
expert’s testimony ordinarily are issues of credibility, not admissibility, of the expert’s
testimony. Sappington, 512 F.3d at 450; see also Minn. Supply Co., 472 F.3d at 544.
“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.” Daubert, 509 U.S. at 596.
ASI moves to exclude Hallman’s testimony in its entirety because he is not a
qualified expert. Alternatively, ASI seeks to exclude Hallman’s testimony concerning
(1) any opinion outside the scope of Hallman’s expertise, (2) the applicable standard of
care and whether ASI violated that standard, (3) any opinion based on the NSPE code of
ethics, (4) any opinion based on Hallman’s interpretation of RISA software analysis files,
8
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(5) any calculations that ASI performed, and (6) any opinion on the sufficiency of evidence
or credibility of deposition testimony.
I.
Hallman’s Qualifications
ASI argues that Hallman is not qualified to testify as an expert in this case, which
exclusively concerns the structural engineering and design of a silo reclaimer system, an
area in which Hallman has no education or experience. ASI contends that, because all of
Hallman’s design experience involves vehicles, he cannot credibly testify regarding the
design of the reclaimer system. But the fact that Hallman has extensive experience in crash
investigations and fire investigations does not necessarily lead to the conclusion that
Hallman is not qualified on matters in which he has less experience. Indeed, both Hallman
and ASI’s engineer responsible for the design of the reclaimer system and selection of the
trolleys at issue have a degree in mechanical engineering.3 Moreover, although ASI attacks
Hallman’s credibility because he has never designed a reclaimer system, ASI’s expert
testified that it is not necessary to have designed a reclaimer system to be qualified to form
opinions in this case.
An expert must be qualified to testify in a given subject area. But this requirement
is not rigorous, and any gaps in an expert witness’s qualifications or knowledge generally
pertain to the weight of the testimony, not its admissibility. United States ex rel. Johnson
v. Golden Gate Nat’l Senior Care, LLC, 223 F. Supp. 3d 882, 905 (D. Minn. 2016) (citing
3
Bjordahl, ASI’s structural engineer, also worked on the silos. But Bjordahl’s role
involved structural needs. He had no involvement in designing the mechanical processes,
and he acknowledged in his deposition testimony that the trolleys were not part of the
structural drawings.
9
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Am. Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 726 (8th Cir. 2015)). In this case,
Hallman qualifies as an expert regarding the mechanical engineering applicable to the
reclaimer system.
II.
Hallman’s Opinions
ASI argues that Hallman’s opinions about the applicable standard of care and
whether ASI violated that standard are fundamentally flawed and, therefore, inadmissible.
ASI contends that Hallman’s opinion on the issue is fundamentally flawed because
Hallman cannot articulate the applicable standard of care and his opinion that the standard
was violated is conclusory and circular.4 As a district court must determine at the outset
whether the proffered expert testimony both rests on a reliable foundation and is relevant
to the task at hand, Daubert, 509 U.S. at 597, the Court will begin with a review of the
legal standard applicable to SMBSC’s professional-negligence claim.
Engineers are not guarantors of results, nor does the law require perfect results.
Waldor Pump & Equip. Co. v. Orr-Schelen-Mayeron & Assoc’s, Inc., 386 N.W.2d 375,
377 (Minn. Ct. App. 1986). The possibility of error is inescapable. Id. One who renders
professional services has a duty to the recipient of those services to exercise such care,
skill, and diligence as a person in that profession ordinarily exercises under like
4
ASI is critical of Hallman for referencing only the NSPE canons of ethics and asserts
that Hallman’s opinion on the standard of care must, but did not, consider the rules of
professional conduct promulgated by the Minnesota Board of Architecture, Engineering,
Land Surveying, Landscape Architecture, Geoscience, and Interior Design, codified in
Minn. R. ch. 1805. ASI has not demonstrated that Minnesota’s rules of professional
conduct governing engineers are necessarily binding on ASI’s engineers conducting their
work outside of Minnesota.
10
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circumstances. See City of Eveleth v. Ruble, 225 N.W.2d 521, 524 (1974) (addressing duty
of design engineers in a professional-negligence action). Expert testimony is usually
required to establish the prevailing standard of care as well as the consequences of
departing from that standard. Pond Hollow Homeowners Ass’n v. The Ryland Grp., Inc.,
779 N.W.2d 920, 923 (Minn. Ct. App. 2010).
Hallman opines that ASI breached the applicable standard of care because (1) ASI
failed to follow two fundamental canons of the NSPE code of ethics by failing to consider
safety as ASI’s primary concern and designing a reclaimer system that was outside ASI’s
expertise, (2) ASI failed to follow engineering best practices, and (3) ASI failed to conduct
appropriate engineering calculations.
When determining the admissibility of expert
testimony, the germane inquiry is whether the testimony would assist the jury’s
understanding of the evidence. J.B. Hunt Transp., Inc. v. Gen. Motors Corp., 243 F.3d 441,
444 (8th Cir. 2001).
SMBSC argues that there is no real dispute about causation, the “bass ackward”
design, the feasibility of the additional “failsafe” that subsequently was installed, or the
lack of quantification of lateral and operational loads. But even when Hallman’s opinions
are considered in this context, as SMBSC urges the Court to do, there is no explanation as
to how Hallman’s opinion on the standard of care would assist the jury in this case.
In Pond Hollow, the plaintiff’s expert opined that the defendant engineering
company breached the standard of care by failing “to properly recognize and evaluate the
water table when determining the minimum building pad elevations.” 779 N.W.2d at 923.
The Minnesota Court of Appeals concluded that plaintiff’s expert failed to establish the
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prevailing standard of care because the expert did not explain how a proper evaluation or
recognition is performed. Hallman opines that engineering design requires that applied
loads be calculated and accounted for using engineering calculations. He then critiques
Dr. Williams’s calculations. But Hallman does not explain how a proper calculation is
performed and concedes that he did not perform a single calculation for himself pertaining
to this case. Consequently, even if Hallman’s opinion could establish the prevailing
standard of care, it would offer no assistance to the jury’s understanding of the
consequences of any departure from that standard of care. Id. (explaining that expert
testimony ordinarily must establish both the applicable standard of care and the
consequences of departing from that standard in professional negligence claims).
Hallman’s opinions on engineering best practices also would be of no assistance to
the jury. Much like the opinion in MCI Communications, Inc. v. Maverick Cutting &
Breaking LLC, Hallman’s proffered testimony would not serve as evidence from which a
jury could discern the industry standard of care applicable to the engineering work
performed. 374 F. Supp. 3d 789, 808 (D. Minn. 2019). There, the plaintiff’s expert offered
several opinions as to industry best practices, but the district court concluded that industry
best practices are not the same as industry standards of care. Id. Instead, industry best
practices are aspirational and generally prescribe a higher standard of care than the industry
standard of care. Id. Because the plaintiff’s expert failed to reference industry practices
or guidelines specific to the particular engineer’s duty, and instead based his opinion
primarily on his own point of view of best practices, the proffered expert opinion was
insufficient to establish industry standards of care. Id. Such is the case here. Hallman’s
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opinion on the standard of care is based primarily—if not entirely—on Hallman’s own
point of view. Something other than rank conjecture and personal preference are required.
Medalen v. Tiger Drylac U.S.A., Inc., 269 F. Supp. 2d 1118, 1135 (D. Minn. 2003)
(“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to
admit opinion evidence that is connected to existing data by the ipse dixit of the expert.”
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997))).
The remainder of Hallman’s proffered testimony, regarding issues other than those
concerning the standard of care, also is flawed.
The primary basis for assessing
admissibility of expert testimony is the witness’s methodology rather than conclusions.
Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (“Both our cases and the
decisions of the Supreme Court make clear that it is the expert witnesses’ methodology,
rather than their conclusions, that is the primary concern of Rule 702.”). Hallman claims
to have followed the “Scientific Method of Inquiry” as defined in the National Fire
Protection Association’s Guide for Fire and Explosion Investigations as:
The systematic pursuit of knowledge involving the recognition
and definition of a problem; the collection of data through
observation and experimentation; analysis of the data; the
formulation, evaluation and testing of hypotheses; and, where
possible, the selection of a final hypothesis.
But Hallman failed to follow the scientific methodology that he advocates. Cf. Presley v.
Lakewood Eng’g & Mfg. Co., 553 F.3d 638, 646 (8th Cir. 2009) (affirming exclusion of
expert testimony under such circumstances). Hallman did not pursue any methodology in
this case to convince the Court that his opinions are reliable. For example, in response to
ASI’s consideration of substituting harder wheels on the trolley, Hallman opined that this
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would not be an adequate solution. He subsequently conceded, “I have not done the
analysis to determine what should have been done.”
The objective of the Daubert inquiry “is to make certain that an expert, whether
basing testimony upon 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, 526 U.S. at 152. Hallman does not employ the same level
of intellectual rigor that characterizes the practice of design engineering.
Hallman
maintains that ASI failed to perform necessary calculations, but he did not perform any
calculations himself. Hallman has never designed a reclaimer or any similar machine.
Hallman did not test or personally observe any of the component parts. After admitting
that he was unsure whether it was common to use cotter pins in trolleys, Hallman conceded
that he did not identify or even investigate whether other trolly options were more suitable
than the trolley that ASI chose. This is so even as trolleys designed by companies other
than ASI were in use at SMBSC. When pressed on the basis for his opinion that the
selected trolley was not capable of supporting the load required for the system to function,
Hallman maintained that the trolley was improper simply because it failed. And this is so
despite SMBSC’s operation of the same trolley in other silos.
Without any scientifically reliable methods supporting his opinions, Hallman’s
proposed testimony falls short of the threshold requirements for admissibility. See Adams
v. Toyota Motor Corp., 867 F.3d 903, 916 (8th Cir. 2017) (expert opinions consisting of
only “vague theorizing based on general principals” do not satisfy the Rule 702 standards
for admissibility); Barrett v. Rhodia, Inc., 606 F.3d 975, 983 (8th Cir. 2010) (concluding
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that district court did not abuse its discretion by excluding expert testimony based primarily
on assumptions instead of testing, measurement, or scientific analysis); Weisgram v.
Marley Co., 169 F.3d 514, 521 (8th Cir. 1999) (holding that the district court abused its
discretion by admitting testimony that was not scientifically sound when the expert
observed the allegedly defective product at issue but had very limited experience with the
product). The Court therefore excludes Hallman’s proffered testimony on behalf of
SMBSC in its entirety.5
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED that ASI’s motion to exclude expert testimony, (Dkt. 44), is
GRANTED.
Dated: August 31, 2020
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
5
ASI argues that, if the Court excludes Hallman as an expert, ASI is entitled to
judgment as a matter of law on SMBSC’s professional-negligence, breach-of-expresswarranty, and breach-of-implied-warranty claims. ASI filed the instant motion nearly
seven months after the dispositive-motion deadline set forth in the scheduling order. ASI’s
request for judgment as a matter of law is untimely under the scheduling order and
premature under Federal Rule of Civil Procedure 50(a). See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149 (2000) (stating that under Rule 50, Fed. R. Civ. P., a district
court should render judgment as a matter of law when “a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue.” (internal quotation marks omitted) (emphasis added)); accord
McSherry v. City of Long Beach, 423 F.3d 1015, 1019 (9th Cir. 2005) (concluding that
pretrial use of Rule 50, Fed. R. Civ. P., was impermissible because the rule presumes that
a jury trial has begun and the nonmoving party has finished presenting evidence).
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