Taylor et al v. Cottrell, Inc. et al
OPINION, MEMORANDUM AND ORDER re: 121 ORDERED that Defendant Cottrell, Inc.'s (Defendant) Combined Motion to Bar Testimony of Gerald Micklow under Daubert and Alternative Ground for Summary Judgment, [Doc. No. 121], is denied.. Signed by District Judge Henry E. Autrey on 2/2/14. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TIMMY A. TAYLOR and
COTTRELL, et al.,
No. 4:09CV536 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Combined Motion to Bar
Testimony of Gerald Micklow under Daubert and Alternative Ground for
Summary Judgment [Doc. No. 121]. Plaintiffs opposed the motion, and Defendant
Dr. Gerald Micklow is a professor at East Carolina University, holding a
Ph.D in mechanical engineering and a M.S. in aerospace engineering. According
to his C.V., he specializes in thermodynamics, computational fluid dynamics, gas
turbine engines, compressible gas dynamics, jet and rocket propulsion,
combustion, hydraulic systems, turbomachinery, internal combustion engineers,
external aerodynamics, dynamics, mechanics of materials, and non-destructive
These facts are drawn from E.C.F. # 40, 60, and 70, and attached exhibits.
testing. He has worked for a variety of employers, many in the aerospace industry,
including NASA and Tracor Aerospace . He has also consulted for a variety of law
firms. He has extensive research experience, and published many papers on
advanced engineering topics such as aerodymanics and propulsion. Dr. Micklow
lists two publications on fall protection, which he states are reports he has
completed for law firms in connection with his work as an expert witness. He
created a “concept” of a fall protection system in connection with expert witness
work, which he then destroyed because he thought the car hauler cases were gone.
A federal court sitting in diversity applies federal procedural law. Great
Plains Trust Company v. Union Pacific Railroad, 492 F.3d 986, 995 (8th Cir.
2007). Accordingly, federal law governs the admissibility of expert witness
testimony. US Salt, Inc., v. Broken Arrow, Inc. 563 F.3d 687, 691 (8th Cir. 2009).
Admissibility is dictated by Federal Rule of Evidence 7022, which provides:
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
These rules were revised in 2011, but the changes were not substantive, as indicated in the following
language from the Editor's Notes : “The language of Rule 702 has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the
rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on
knowledge will help the trier of fact to understand the evidence
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.
Under Rule 702, a trial judge acts as a “gatekeeper,” screening evidence for
reliability and relevance. Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir.
2008), Daubert, 509 U.S. at 592-93. The reliability standard is established by
Rule 702's requirement that an expert’s testimony be grounded in science’s
methods and procedures, while the relevance standard is established by the Rule’s
requirement that the testimony assist the trier of fact to understand the evidence or
to determine a fact in issue. Daubert, 509 U.S. at 590-91. This gatekeeping
responsibility extends to all expert testimony, not just scientific testimony. Kumho
Tire, 526 U.S. at 141. A district court should apply a three-part test when
screening testimony under Rule 702.
First, evidence based on scientific, technical, or
other specialized knowledge must be useful to the finder
of fact in deciding the ultimate issue of fact. This is the
basic rule of relevancy. Second, the proposed witness
must be qualified to assist the finder of fact. Third, the
proposed evidence must be reliable or trustworthy in an
evidentiary sense, so that, if the finder of fact accepts it
as true, it provides the assistance the finder of fact
Polski, 538 F.3d at 839, quoting Lauzon v. Senco Products, Inc. 270 F.3d
681, 686 (8th Cir. 2001).
Subsequent cases have proposed additional factors, including, whether the
expertise was developed for litigation or naturally flowed from the expert's
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. Lauzon, 270 F.3d at 686-87, Polski, 538 F.3d at 839.
Rule 702 is clearly a rule of admissibility rather than exclusion. Lauzon v.
Senco Products, Inc. 270 F.3d 681, 686 (8th Cir. 2001). The proponent of the
expert testimony must prove its admissibility by a preponderance of the evidence.
Lauzon 270 F.3d at 686. With these standards in mind, the Court turns to the
arguments of the parties.
1. Dr. Micklow’s Qualification
Defendant alleges that Dr. Micklow’s testimony should be barred because
he is not qualified to render an opinion in the field of fall protection associated
with such testimony. Plaintiffs respond that Dr. Micklow’s education and
experience qualify him as an expert, and that any dispute regarding his
qualifications “go to the weight of his testimony, not its admissibility.”
As detailed above, district courts in the Eighth Circuit must determine
whether a “proposed witness is qualified to assist the trier of fact” when screening
testimony under Rule 702. Plaintiffs, however, contend that disputes regarding
qualifications go to the weight of testimony, rather than its admissibility. Plaintiffs
rely on Robinson v. Geico Gen. Ins. Co., 447 F.3d 1096 (8th Cir. 2006). In
Robinson, the court declared: “Gaps 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 1100-01, quoting 29 CHARLES
ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND
PROCEDURE: EVIDENCE § 6265 (1997). Yet this sweeping statement is
tempered by the immediately following language : “However, Rule 702 does
require that “the area of the witness's competence matches the subject matter of the
witness's testimony.” Robinson, 447 F.3d at 1101, quoting Wright & Gold, §
6265. In the words of another Eighth Circuit case on expert testimony: “The real
question is, what is he an expert about?” Wheeling Pittsburgh Steel Corp. v.
Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001).
According to Plaintiffs, Dr. Micklow is an expert in fall protection. The
issue, then, is whether Dr. Micklow is qualified as a fall-protection expert by
“knowledge, skill, experience, training, or education.” Plaintiffs must make this
showing by a preponderance of the evidence. Lauzon 270 F.3d at 686.
It is clear from Dr. Micklow's C.V. that he has no formal education or
training in fall protection. Rather, it appears that Dr. Micklow’s primary area of
academic expertise and training is mechanical engineering, with a focus on areas
such as thermodynamics, computational fluid dynamics, combustion, propulsion,
aerodynamics, and gas turbine engines, etc. Of course, as courts in the Eighth
Circuit have held, academic training is not necessary for expert qualification; a
person may qualify as an expert where he possesses sufficient knowledge obtained
from practical experience. Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir.
1990). Dr. Micklow has authored a pair of reports called “Engineering and
Ergonomic Analysis Relating to Slips and Falls While Loading/Unloading Car
Carriers”, and “Injuries Related to Slips and Falls on Automobile Transport
While Dr. Micklow’s specific experience in slip and fall cases is limited,
small and not extensive, it does exist. As Plaintiffs argue, the issues raised by
Defendant go to the weight to be given Dr. Micklow’s testimony, rather than its
IT IS HEREBY ORDERED that Defendant Cottrell, Inc.’s (“Defendant”)
Combined Motion to Bar Testimony of Gerald Micklow under Daubert and
Alternative Ground for Summary Judgment, [Doc. No. 121], is denied.
Dated this 2nd day of February, 2013.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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