Dejana et al v. Marine Technology, Inc. et al

Filing 214

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Randy M. Scisms Motion for Summary Judgment 148 is DENIED. IT IS FURTHER ORDERED that Defendant Marine Technology, Inc.s Motion for Summary Judgment 154 is DENIED. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment 166 is DENIED. IT IS FURTHER ORDERED that Plaintiffs Motion to Strike Defendants Proposed Sur-Rebuttal Expert Reports of Brant Savander and Anthony Caiazzo 138 is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion to Exclude Parts of Thomas Irelands Expert Testimony 146 is GRANTED consistent with the Courts Memorandum and Order. IT IS FURTHER ORDERED that Plaintiffs Motions to Exclude Testimony and Opinions of Anthony Caiazzo 155 , Christopher Long 165 , and Brant Savander 168 are DENIED. IT IS FURTHER ORDERED that Defendants Motions to Exclude Expert Testimony of Eric Greene 158 , Anand Shah, P.E. 159 , Scott Graham, P.E. 160 , Lane Hudgins 161 , and Donald Barceloux, M.D. 162 are DENIED. Signed by District Judge John A. Ross on 12/20/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LINDA DEJANA, et al.,
Plaintiffs,
v.
MARINE TECHNOLOGY, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:11-CV-1690-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Randy M. Scism’s Motion for Summary
Judgment [148], Defendant Marine Technology, Inc.’s Motion for Summary Judgment [154],
Plaintiffs’ Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment
[166], Plaintiffs’ Motion to Strike Defendants’ Proposed “Sur-Rebuttal” Expert Reports of Brant
Savander and Anthony Caiazzo [138], Plaintiffs’ Motion to Exclude Parts of Thomas Ireland’s
Expert Testimony [146], Plaintiffs’ Motions to Exclude Testimony and Opinions of Anthony
Caiazzo [155], Christopher Long [165], and Brant Savander [168], and Defendants’ Motions to
Exclude Expert Testimony of Eric Greene [158], Anand Shah, P.E. [159], Scott Graham, P.E.
[160], Lane Hudgins [161], and Donald Barceloux, M.D. [162] The motions are fully briefed and
ready for disposition. Oral argument on the motions was held on October 16, 2013.
I. Motions for summary judgment
The standards for summary judgment are well settled. In determining whether summary
judgment should issue, the Court must view the facts and inferences from the facts in the light

most favorable to the nonmoving party. The moving party has the burden to establish both the
absence of a genuine issue of material fact, and that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v
Carrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the nonmoving
party may not rest on the allegations in the pleadings but must set forth by affidavit or other
evidence specific facts showing that a genuine issue of material facts exists. Fed. R. Civ. P. 56(e).
At the summary judgment stage, the Court does not weigh evidence and decide the truth of the
matter, but rather only determines if there is a genuine issue for trial. Anderson, 477 U.S. at 249.
A. Defendant Randy M. Scism’s motion for summary judgment
Scism’s motion is based on the belief that Plaintiffs’ theory of liability against him is
premised on the doctrine of piercing the corporate veil. Piercing the corporate veil allows a
plaintiff to impose liability for a corporation’s obligations, or for torts committed by the
corporation, on some other company or individual that controls and dominates the corporation.
See, e.g., Churchill in Crestwood, LLC v. Schwartz, 2011 WL 7109212, *5 (W.D. Mo. Jan. 27,
2011); In re Mar-Kay Plastics, Inc., 234 B.R. 473 (Bkrtcy. W.D. Mo. 1999). Scism argues he
cannot be held personally liable on Plaintiffs’ claims because he was acting solely as a corporate
officer and sole shareholder of MTI. (Memorandum in Support, Doc. No. 150, p. 3) Plaintiffs
respond that Scism can be held individually liable, without piercing the corporate veil, because he
personally participated in the design, manufacture and testing of the subject boat, as well as the
aftermarket window bars. (Plaintiffs’ Memorandum in Opposition, Doc. No. 175, p. 4, 6-7)
It is well established that a corporate officer or director does not incur personal liability for
the corporation’s torts merely by reason of his official status. His liability, if any, stems from his

2

own tortious conduct. “A corporate officer is individually liable for the torts he [or she]
personally commits [on behalf of the corporation] and cannot shield himself [or herself] behind a
corporation when he [or she] is an actual participant in the tort. The fact that an officer is acting
for a corporation also may make the corporation vicariously or secondarily liable under the
doctrine of respondeat superior; it does not however relieve the individual of his [or her]
responsibility.” U.S. v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 744-45
(8th Cir. 1986) (citations omitted).
Plaintiffs allege that MTI and Scism designed and built the subject boat, and that, at all
material times, MTI acted by and through Scism. (Second Amended Complaint1 (“SAC”), Doc.
No. 105, ¶ 24) Plaintiffs further allege that, at all times material to this lawsuit, Scism served as
MTI’s president, chief spokesman and promoter, was the “guiding force” behind MTI, and
actively participated in all aspects of the business including the design, construction and sale of
MTI race and pleasure boats, including the subject boat. (SAC, ¶ 25) Plaintiffs assert claims for
wrongful death and damages against both MTI and Scism based on strict liability for design and
manufacturing defect, strict liability for failure to warn, negligence for defective product,
negligence for failure to warn, and punitive damages. (SAC, ¶¶ 108-266) Because this alleged
personal liability is distinct from the derivative liability that results from piercing the corporate
veil, Scism’s motion for summary judgment will be denied.
B. MTI’s Motion for Summary Judgment

1

While captioned “Second Amended Complaint,” this is actually the third amended
complaint filed by Plaintiffs. (See Doc. Nos. 1, 4)

3

MTI moves for summary judgment on three grounds: (i) Plaintiffs’ theory of product
liability fails because there is no duty in Missouri to recall or retrofit a product once it has left the
manufacturer’s control; (ii) Plaintiffs cannot claim lost accumulations to Graff’s estate because
such damages are not recoverable under Missouri’s wrongful death statute; and (iii) without
relevant or reliable expert opinion testimony, Plaintiffs cannot prove the boat was in a defective
condition and unreasonably dangerous. (Mem. in Supp., Doc. No. 157, pp. 1-3)
Duty to recall or retrofit
Plaintiffs allege that Defendants knew the 2005 model year enclosed cockpit canopy
safety system employed on the boat was fatally defective after a customer, Randy Linebaugh, was
killed in a similar accident in 2004, yet did nothing to recall, repair or retrofit existing boats with
their new canopy design. (SAC, ¶¶ 11, 73, 74, 87)
In support of their motion for summary judgment, MTI argues that as a manufacturer, it is
not required to recall or retrofit a product with additional safety features that were not required at
the time of manufacture. (Mem. in Supp., pp. 4-7) Even assuming a duty to recall or retrofit the
boat, MTI maintains it did so by installing window bars inside the canopy and that Plaintiffs’
removal of this safety feature is fatal to their case.2 (Id., p. 6)

2

Courts have held that a manufacturer or seller is not liable for injuries caused by a
defective product if the defect was created by an alteration which amounts to an intervening or
superseding cause, as distinguished from a concurrent cause, of the injuries. See Winters v. Sears,
Roebuck and Co., 554 S.W.2d 565, 572 (Mo.Ct.App. 1977). See also In re Genetically Modified
Rice Litigation, 666 F.Supp.2d 1004, 1024 (E.D. Mo. 2009) (“Under Missouri law, the mere
existence of an intervening act is not decisive. For an intervening act to relieve the original
tortfeasor from liability, it cannot be an act of concurring or contributory negligence.”) (internal
quotations omitted). Nevertheless, the question of whether a party's negligence constitutes a
superseding cause of the injury is a question of fact. Lone Star Industries, Inc. v. Mays Towing
Co., Inc., 927 F.2d 1453, 1462 (8th Cir. 1991).

4

There is no common law duty to recall under federal or Missouri law absent a mandated
recall by a governmental agency. See Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765,
773-74 (8th Cir. 1998). In Horstmyer, 151 F.3d 765, plaintiff was injured when his hand came in
contact with the spinning blade of a miter saw. Seven years earlier, Black & Decker had recalled
the model of saw that injured plaintiff; however, the saw plaintiff was using at the time of his
injury was never made part of the recall. Id. at 767. Plaintiff sued for “negligent recall.” Prior to
trial, Black & Decker successfully moved to dismiss the claim for failure to state a cause of
action. Id. at 768. On appeal the court concluded that while there may be a duty to recall in some
cases, there was “no indication, by caselaw, statute, or otherwise, that the Missouri Supreme
Court would create a common law duty to recall under these circumstances." Id. at 773. Further,
because there was no recognized duty to recall, Black & Decker could not be held to have
assumed such a duty by voluntarily recalling some of the saws. Id. at 774. See also Smith, 755
F.2d at 135 (upholding district court's refusal to instruct jury on failure to recall “because no duty
to recall the rims existed under state or federal law”); Efting v. Tokai Corp., 75 F. Supp.2d 1006,
1011 (W.D. Mo. 1999) (“Because there is no duty in Missouri to recall or retrofit the Aim N
Flame, defendants' motion for summary judgment on the claim for failure to recall or retrofit will
be granted.”); Stanger v. Smith & Nephew, Inc., 401 F. Supp.2d 974, 982 (E.D. Mo. 2005) ("The
Court agrees with defendants that under Missouri law, there is no cause of action for negligent
recall."). In this case, however, MTI’s liability may be based on its defective design and
manufacture of the enclosed cockpit/canopy safety system. The Court concludes there are fact
issues as to whether the boat, as originally designed and manufactured, was defective, which
preclude summary judgment.

5

Damages
On the issue of damages for net lost accumulation to Graff’s estate, MTI argues that in
Missouri, the damages recoverable in wrongful death cases are governed by R.S.Mo. § 537.090
and do not include losses to an estate or survivorship losses. MTI cites Powell v. American
Motors Corp., 834 S.W.2d 184, 186 (Mo. banc 1992), in support of its position that Missouri’s
statute provides for survivorship damages incurred by the decedent before death, but not for
damages caused by the death itself. (Mem. in Supp., pp. 7-9) Plaintiffs respond that § 537.090
allows for recovery of “damages as the trier of the facts may deem fair and just for the death and
loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death,” and
does not expressly preclude damages for “net loss accumulation” to an estate. (Opp., Doc. No.
186, pp. 10-12)
At oral argument, counsel for Plaintiffs acknowledged that the Graff estate cannot claim
lost accumulations for itself under the wrongful death statute, and clarified that Plaintiffs’ claim
for lost inheritance is made on behalf of Graff’s survivors. Plaintiffs rely on Moss v. Executive
Beechcraft Inc., 562 F.Supp. 873 (W.D. Mo. 1983), which holds that under Missouri law, a
beneficiary’s loss of an expected inheritance, if properly supported by the evidence, is recoverable
as an element of damages in a wrongful death action. See also Bagley v. St. Louis, 186 S.W. 966
(Mo. 1916) (recognizing rule but denying recovery).
The majority of courts that have addressed this issue have found that a beneficiary’s loss
of expectancy of an inheritance from the decedent is a proper element of damages in a wrongful
death action. See Anno., Wrongful Death Damages for Loss of Expectancy of Inheritance from
Decedent, 42 A.L.R.5th 465 (1996). These damages are generally confined to the present value of

6

what the beneficiary probably would have inherited from the decedent, based upon future
additions that the decedent would likely have made to his or her estate had he or she not died
prematurely. Id. The district court in Moss acknowledged the speculative nature of such damages,
but stated that “plaintiffs should at least be afforded the opportunity to present evidence in support
of this element of damage. It will be for the jury to determine if [decedent] had lived to her life
expectancy whether she would have amassed an inheritable estate and whether each claimant
would continue to be the natural object of her affections and beneficence if each had lived out
their life expectancy.” 562 F.Supp. at 875. Accordingly, MTI’s motion for summary judgment
will be denied.
Lack of expert evidence
Lastly, MTI argues Plaintiffs have failed to support their theory of liability with reliable,
scientific evidence. Without expert testimony, Defendants contend Plaintiffs will be unable to
prove the boat was in a defective condition and unreasonably dangerous. (Mem. in Supp., pp. 1013) Plaintiffs respond that their experts exceed the standards for admissibility under Daubert,3 but
even if they are excluded, they can still prove their case by circumstantial evidence, citing
Patterson v. Foster Forbes Glass Co., 674 S.W.2d 599, 604 (Mo.Ct.App. 1984). The Court has
addressed these arguments in connection with Defendants’ motions to exclude the opinion
testimony of Plaintiffs’ experts Greene, Shah and Graham. As discussed infra, after reviewing
Defendants’ motions, the Court concludes that Plaintiffs’ experts possess the required expertise

3

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

7

and have applied reliable methods to the facts of this case to form their opinions. Thus, MTI’s
motion for summary judgment will be denied.
C. Plaintiffs’ Motion for Summary Judgment, or in the Alternative, Partial
Summary Judgment
Plaintiffs move for summary judgment on Defendants’ counterclaims for contribution for
negligence. Alternatively, Plaintiffs move for partial summary judgment on five of the
Defendants’ affirmative defenses4 which go to Plaintiffs’ negligence, and on the following issues:
whether the original design of the subject boat was defective; whether the second collision
doctrine is applicable; whether Plaintiffs’ use of the boat was reasonably foreseeable; whether
Plaintiffs would have survived the rollover had the canopy not collapsed; and whether Plaintiffs
were negligent. In response, Defendants argue that based on the general nature and tort theory of
this case, the evidence raises multiple fact issues which precludes summary judgment. The Court
agrees.
Original design defect
Plaintiffs claim summary judgment in their favor is appropriate because the original
design of the boat was defective. Plaintiffs point to Defendants’ noncompliance with the Lanvin

4

Defendants’ fourth affirmative defense is based on Plaintiffs’ comparative or
contributory negligence; the eighth affirmative defense is based on Plaintiffs’ failure to exercise
the degree of care for their safety that a reasonably prudent person would have exercised under
similar circumstances; the eighteenth affirmative defense is based on Plaintiffs’ comparative fault;
the twenty-first affirmative defense is based on indemnity/contribution from Dejana for his
negligence causing Graff’s death; and the twenty-second affirmative defense is based on
indemnity/contribution from Graff for his negligence in causing Dejana’s death.

8

guidelines5 (Mem. in Supp., Doc. No. 167, pp. 10-13), and to the fact that the aftermarket window
bars were developed in response to the Linebaugh crash. (Id., pp. 13-14) Plaintiffs also contend
that Defendants failed to provide any warnings regarding the boat’s horsepower and speed
limitations or of the risk of removing the bars from the windshield. (Id., pp. 14-15)
In response, Defendants state that whether a defect existed in the boat is a fact-specific
question for the jury to determine, with the help of engineering expert testimony. (Response, Doc.
No. 184, p. 4) Defendants note the Lanvin guidelines for powerboat manufacturers are not laws or
mandates governing the design of the boat, as Plaintiffs suggest. In addition, Defendants identify
two witnesses, Billy Mauff and Kevin Cooper, whose testimony they contend will controvert and
create a fact issue regarding Plaintiffs’ failure to warn allegations. According to MTI, Mauff and
Cooper specifically warned Decedent Dejana on the weekend of the race that removing the bars
from the windshield of the canopy would be fatal in the event of a rollover. (Response, pp. 5-6;
Defendants’ Statement of Additional Uncontroverted Material Facts (SAF), ¶¶ 121, 122)
In reply, Plaintiffs maintain there is no dispute that the boat hull, polycarbonate
windshield and canopy failed, causing Decedents’ injuries, that the aftermarket window bars were
developed in response to the Linebaugh crash, and that if the window bars had been installed on
the subject boat, then Decedents would have survived. Plaintiffs argue this “necessarily means”
the boat, as it existed at the time of the crash, was defective. (Reply, Doc. No. 206, pp. 2-3)
Under Missouri law, to recover under the theory of strict liability for defective design, a
plaintiff must establish that: “(1) the defendant sold the product in question in the course of its

5

The Mark Lavin Memorial Safety Foundation Competitor Compartment System
Guidelines (the “Lavin Guidelines”) for enclosed reinforced restrained cockpit systems.

9

business; (2) the product was then in a defective condition, unreasonably dangerous when put to a
reasonably anticipated use; (3) the product was used in a manner reasonably anticipated; and (4)
the plaintiff was damaged as a direct result of such defective condition as existed when the
product was sold.” American Auto. Ins. Co. v. Omega Flex, Inc., 2013 WL 3287161, at *1 (E.D.
Mo. Jun. 28, 2013) (citations omitted). Whether a product is unreasonably dangerous is the
determinative factor in a design defect case. Hylton v. John Deere Co., 802 F.2d 1011, 1015 (8th
Cir. 1986) (citing Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375 (Mo.banc
1986)). The concept of “unreasonably dangerous” is not clearly defined by Missouri courts or the
Eighth Circuit; however, courts appear to be consistent in holding that it is for a jury to decide the
ultimate issue of what constitutes “unreasonably dangerous” in a design defect case. Ford v.
GACS, Inc., 265 F.3d 670, 676-77 (8th Cir. 2001); See also, Pree v. Brunswick Corp., 983 F.2d
863, 866 (8th Cir. 1993) (“Unless a court can affirmatively say as a matter of law that the design
renders a product ‘unreasonably dangerous,’ the question is generally one for the jury.”).
As discussed infra, there will be opposing expert witnesses, subject to cross-examination,
who have widely differing opinions on the design of the cockpit canopy, the strength of the
composite structure of the boat’s deck and hull, the speed of the boat at the time of the accident,
and the effect of the removal of the window bars from inside the canopy windshield. Because the
Court cannot affirmatively say as a matter of law that the original design of the boat rendered it
“unreasonably dangerous,” Plaintiffs’ motion for summary judgment on this issue will be denied.
Second collision doctrine
Next, Plaintiffs claim that because the boat was being used in a foreseeable manner at the
time of the accident, the second collision doctrine applies to bar evidence of Decedents’

10

contributory fault. (Mem. in Supp., pp. 15-18) In response, Defendants contend the public policy
behind the second collision doctrine, created and applied to automobile manufacturers, does not
apply to the niche industry of offshore powerboat racing. (Response, pp. 7-9) Defendants also
argue that unlike other second collision doctrine cases which isolate one product defect that
caused an enhanced injury, Plaintiffs’ arguments extend to multiple defects, including problems
with the deck hatches, structure and strength, isolation of the canopy structure, bolting of the
windshield to the canopy, strength of the windshield, and strength of the boat laminate. (Id., pp. 911) Lastly, Defendants argue that evidence of Decedents’ comparative fault or the initial cause of
the crash is highly probative of the issues in this case and must not be excluded under the second
collision doctrine, citing Graham v. Hamilton, 872 F.Supp.2d 529 (W.D. La. 2012), where the
court allowed evidence of decedent’s comparative fault in a wrongful death action based on the
second collision doctrine. (Doc. No. 184, pp. 11-13)
The second collision doctrine applies when the construction or design of a product
enhances an injury beyond that which would have otherwise occurred as the result of an accident.
See, Bass v. General Motors Corp., 150 F.3d 842, 846 (8th Cir.1998) (citing Polk v. Ford Motor
Co., 529 F.2d 259, 264 (8th Cir.1976) (en banc)). The doctrine has been extended to a broad
range of product areas, including boats. See, e.g., Rubin v. Brutus Corp., 487 So.2d 360, 364
(Fla.Ct.App. 1986) (boat) (“[T]he basic duty underlying this legal theory is the same—to use
reasonable care in the design and manufacture of a product to protect against a foreseeable risk of
injury in a collision.”) See also, Hillrichs v. Avco Corp., 478 N.W.2d 70 (Iowa 1991) (farm
equipment); Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976) (airplanes); Camacho
v. Honda Motor Co., 741 P.2d 1240 (Colo. 1987) (motorcycles). Moreover, Defendants provide

11

no legal basis for their contention that a fact pattern involving allegations of multiple defects
precludes application of the second collision doctrine. Whether Decedents’ injuries and death
were caused by one specific defect or a combination of defects does not, in the Court’s view,
change the applicability of the second collision doctrine to the facts of this case.
The elements necessary for recovery under the second collision doctrine are the same
elements that must be established in a design defect case. “To recover under the second collision
doctrine, the plaintiff has the burden of proving that the product was defective in condition or
design when it left the manufacturer. To establish that the product was defective, plaintiff must
show that he was injured while using the product in its intended manner. Further, the plaintiff
must prove that the product was unreasonably dangerous.” Richardson v. Volkswagenwerk, A.G.,
552 F.Supp. 73, 80 (D.C. Mo. 1982). See also, Cryts v. Ford Motor Co., 571 S.W.2d 683, 688
(Mo.Ct.App.1978); McDowell v. Kawasaki Motors Corp. USA, 799 S.W.2d 854, 865
(Mo.Ct.App.1990). Whether the application of the doctrine will bar evidence of Decedents’ fault
depends on the resolution of substantial factual issues regarding the boat’s design. Thus, the Court
will deny Plaintiffs’ motion as to the application of the second collision doctrine. At oral
argument, Plaintiffs voiced concern about the jury hearing evidence of Decedents’ conduct
alleged to have contributed to the crash. Should the Court determine that the second collision
doctrine applies in this case, it will consider a curative instruction to the jury or other remedy to
address those concerns.
Decedents’ alleged negligence
Finally, Plaintiffs claim summary judgment is appropriate because there is no evidence to
establish that Decedents’ alleged negligence, specifically their modifications to, and lack of

12

familiarity with the boat, or Decedent Graff’s THC levels, caused or contributed to cause their
injuries and deaths. (Doc. No. 167, p. 19) Defendants dispute this claim and highlight the
following factual issues:
$

Decedents increased the weight and size of the engines and then practiced operating the
boat with the new engines for only one and a half hours prior to racing it. (SAF ¶¶ 125,
127, 129, 130)

$

MTI’s expert, Dr. Savander, opined that the added weight from the new engines decreased
the margin of error when handling the boat. (SAF ¶129)

$

MTI’s racing expert, Jeff Harris, opined that Decedents did not have the requisite
experience with the larger engines to race the boat in race conditions. (SAF ¶¶ 129, 130)

$

Decedents removed the window bars, a safety device, from the boat. (SAF ¶¶121, 122,
123, 132)

$

MTI’s experts opine that the windshield would not have failed had Decedents not removed
the window bars. (SAF ¶132)

$

Mr. Mauff and Mr. Cooper, long-time racers, testified they each separately warned
Decedents that they could be killed from the windshield imploding during a rollover
accident without the windows bars in place. (SAF ¶¶121, 122)

(Doc. No. 184, pp. 14-15) The question of negligence is ordinarily a question of fact to be decided
by the jury, and is always a question of fact when the evidence on the issue is conflicting. See
Kiemele v. Soo Line R. Co., 93 F.3d 472, 474 (8th Cir. 1996). Because there are genuine issues of
material fact as to whether Decedents were comparatively at fault, Plaintiffs’ motion will be
denied.
II. Plaintiffs’ Motion to Strike Defendants’ Proposed “Sur-Rebuttal” Expert Reports
of Brant Savander and Anthony Caiazzo
By way of background, Plaintiffs’ liability experts, reconstructionist Kevin Breen,
composite expert Andrew Shah, and naval architect Eric Greene, opine that the failure of the

13

boat’s enclosed cockpit/canopy safety system was the direct and proximate result of the defective
design of the boat and canopy system by Defendants. Their opinions are based on traditional
forensic and failure analyses, accident reconstruction, and photogrammetric techniques. (Motion
to Strike and Mem. in Supp., Doc. No. 138, p. 5) Defendants endorsed two experts, Dr. Brant
Savander, an expert in computational fluid dynamics (CFD), and Dr. Anthony Caiazzo, an expert
in finite element analysis (FEA), who rely exclusively on the results of computer simulations
created using CFD and FEA software programs known as Starccm+ and ABAQUS, for their
opinions. (Id., p. 6) Because Plaintiffs’ experts did not use or address these computer programs in
their reports, Plaintiffs requested and the Court granted them an opportunity to submit rebuttal
testimony on the limited issue of computer simulation, animation, and modeling created by those
software programs. (Fourth Amended Case Management Order, Doc. No. 130) Plaintiffs retained
Scott Graham as a rebuttal expert. In addition, one of Plaintiff’s original experts, Eric Greene,
filed a rebuttal report. Defendants’ experts Savander and Caiazzo then submitted revised reports,
which Plaintiffs move to strike as improper sur-rebuttal.
Plaintiffs maintain that neither Graham nor Greene raise “new” matters in their expert
rebuttal reports that would justify a sur-rebuttal, and that Defendants’ sur-rebuttal reports are
really an improper attempt to correct flaws in the methodology of their original reports. (Mem. in
Supp., p. 11) The decision to allow a party to present evidence in sur-rebuttal is generally a matter
within the Court’s discretion. U.S. v. Purkey, 428 F.3d 738, 759 (8th Cir. 2005) (citing United
States v. Wilford, 710 F.2d 439, 452 (8th Cir.1983), cert. denied, 464 U.S. 1039 (1984)).
“[S]urrebuttal is typically thought appropriate only when new matters are raised in the rebuttal
testimony.” Id. (citing United States v. Barnette, 211 F.3d 803, 821 (4th Cir.2000)).

14

Both Graham and Greene opine that CFD and FEA software modeling is not sufficiently
reliable to be used as the primary and exclusive methodology in a case like this due to the large
number of unknown initial variables and the presence of waves and boat wakes. Graham noted a
number of methodological flaws in Savander’s use of the CFD software. In particular, none of
Savander’s assumed key initial conditions and inputs were based on recorded data from the
subject boat. (Graham Report, Doc. No. 138-6, pp. 5-6) Graham concluded that Savander’s
proposed hypothesis of looking at several load cases (speeds), and determining in what case
(speed) the predicted damage matched the actual, was inadequate given the complexities of the
instant case.
With respect to Caiazzo, Graham concluded that his analysis of the overall boat structure
using the ABAQUS software program was fundamentally flawed because it failed to account for
the progressive nature of the boat’s structural failure. (Graham Report, Doc. No. 138-7, p. 6)
Further, because Caiazzo’s analysis of the crash and subsequent damage predictions is based on
Savander’s four flawed pressure predictions from his CFD simulations, that analysis is likewise
flawed and unreliable. (Id.) Greene concluded in his rebuttal report that the analyses presented by
Savander and Caiazzo were not based on how the boat was built or the events that occurred on
August 24, 2008. Thus, the damage predicted by the software “models” does not correspond to
damage incurred during the accident, nor are the damage mechanisms presented credible. (Greene
Report, Doc. No. 138-8, p. 4)
Defendants respond that their experts were left to consider Graham’s untested theories
rebutting their work because, as Graham admitted, he did not run the additional calculations he
suggested, and simply offered opinions that specific factors would have altered the findings and

15

results of the CFD and FEA analyses. Defendants contend their sur-rebuttal reports constitute
“narrow and limited contradiction to Plaintiffs’ rebuttal opinions,”6 and conduct the additional
calculations which Graham failed to perform. (Resp. in Opp., Doc. No. 140, p. 8)
Plaintiffs reply that given their rebuttal experts’ opinions that CFD and FEA computer
modeling and simulations are not sufficiently reliable and amount to “junk science,” their experts
would never run such tests, and the fact they did not is only further evidence that sur-rebuttal is
improper. Defendants’ experts had already used this methodology and obtained results.
Defendants took the opportunity of a sur-rebuttal to run more tests, and correct the flaws in their
previous computations. (Reply, Doc. No. 141, p. 7)
Upon careful review of Graham and Greene’s rebuttal reports, it appears to the Court that
they are essentially criticizing Savander and Caiazzo’s methodology and that they reached their
conclusions without introducing new issues, facts or evidence into the case. Graham and Greene
did not perform any testing with the Starccm+ or ABAQUS programs. If they had, then the results
of that testing could arguably be considered newly introduced evidence which Defendants could
then attempt to contradict through sur-rebuttal. Sur-rebuttal testimony is not an opportunity for
the correction of any oversights in the adverse party’s case-in-chief. In re President Casinos, Inc.,
2007 WL 7232932, at *2 (Bkrtcy.E.D.Mo. 2007) (quoting Crowley v. Chait, 322 F.Supp.2d 530,
531 (D.N.J. 2004)). Testimony that only offers additional support to an argument made in a case-

6

Defendants’ sur-rebuttal reports can hardly be considered “narrow and limited.”
Savander’s report is in excess of 200 pages (Doc. No. 138-20, -21), and Caiazzo’s report is 26
pages. (Doc. No. 138-22)

16

in-chief is improper on rebuttal. See Peals v. Terre Haute Police Dept., 535 F.3d 621, 630 (7th
Cir. 2008).
Accordingly, Plaintiffs’ motion to strike Defendants’ “sur-rebuttal” expert reports will be
granted. Defendants remain free to challenge Plaintiffs’ rebuttal expert opinions on cross
examination, but may not augment their rebuttal cross-examination with the results of the
additional calculations performed by Savander and Caiazzo as those would constitute new
opinions.
III. Daubert motions
The parties have filed numerous Daubert motions directed to each other’s experts. The
Court applies the standard of Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999), as set
forth in Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1057 (8th Cir. 2005): “The
opinion of a qualified expert witness is admissible if (1) it is based upon sufficient facts or data,
(2) it is the product of reliable principles and methods, and (3) the expert has applied the
principles and methods reliably to the facts of the case.” See also Russell v. Whirlpool Corp., 702
F.3d 450, 456 (8th Cir. 2012) (“There is no single requirement for admissibility as long as the
proffer indicates that the expert evidence is reliable and relevant.”). When evaluating the
sufficiency of expert testimony, “the factual basis of an expert opinion goes to the credibility of
the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis
for the opinion in cross-examination. Only if the expert’s opinion is so fundamentally
unsupported that it can offer no assistance to the jury must such testimony be excluded.” Minn.
Supply Co. v. Raymond Corp., 472 F.3d 524, 544 (8th Cir. 2006) (quotation omitted). Each
motion will be considered in turn below.

17

A. Plaintiffs’ motions to exclude opinion testimony
Thomas Ireland
Defendants retained economist Thomas Ireland to evaluate Plaintiffs’ alleged economic
loss. With respect to Linda Dejana, Dr. Ireland concludes there is no reliable evidence that she
suffered any financial loss as a result of her husband’s death. (Report of Dr. Ireland, Doc. No.
146-2, p. 8) He reached this conclusion by comparing the Dejanas’ family income in the two year
period before and after Philip Dejana’s death in 2008. (Id., pp. 9-10) The average adjusted gross
income (AGI) of Philip and Linda Dejana for the period before his death was $378,502. After
subtracting 9.5% for Philip Dejana’s personal consumption expenses, that figure becomes
$342,544. The average AGI for Linda Dejana for the period after her husband’s death was
$383,839. Thus, the resulting two year comparison shows a net gain rather than a net loss to
Linda Dejana after Philip Dejana’s death.
Plaintiffs argue that Ireland’s failure to consider the source of Linda Dejana’s post-death
income, and his failure to separate Philip Dejana’s earnings from Linda’s in his economic loss
analysis, results in the misleading conclusion that there is “no evidence” to support her claim for
damages. Plaintiffs ask the Court to exclude Dr. Ireland’s testimony relating to the “lack of
evidence” of loss suffered by Linda Dejana. (Motion, Doc. No. 146, pp. 4-7)
Under Daubert, “district courts are to perform a ‘gatekeeping’ function and insure that
proffered expert testimony is both relevant and reliable.” Eubanks v. Cottrell, Inc., 2007 WL
172566, at *1 (E.D.Mo. Jan. 19, 2007) (quoting Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir.
1997)). On the record made, the Court finds Dr. Ireland’s approach to analyzing loss of financial
support in this case is not a reliable measure of damages and, therefore, not relevant. Ireland relies

18

solely on the Dejana tax returns from 2003-2011. His simplistic comparison of AGI before and
after Philip Dejana’s death does not account for the sources of income that comprise AGI, and
fails to separate Philip Dejana’s earnings from Linda’s. Collateral sources of income to Linda
Dejana following her husband’s death are not relevant to her claim of lost economic support and
should not be considered in an analysis of loss of support. See generally Overton v. U.S., 619
F.2d 1299, 1306 (8th Cir. 1980); Moore Automotive Group, Inc. v. Lewis, 362 S.W.3d 462
(Mo.Ct.App. 2012). Dr. Ireland was unable to point to any support for his approach in the
economics literature (Ireland Depo., Doc. No. 146-1, 88:9–89:6, 117:12-122:2), and could not
recall another case in which he testified as to loss based on the income of the family unit as a
whole and not solely on the decedent’s income. (Id., 16:19-18:6; 76:3-22)
Because Dr. Ireland’s family income methodology is neither a reliable nor relevant
measure of damages, the Court will grant Plaintiffs’ motion in part and exclude Ireland’s
testimony regarding the “lack of evidence” of loss suffered by Linda Dejana.
With respect to the Graffs, Dr. Ireland opines they have not experienced an economic loss
because there appears to be no basis under Missouri law for recovering for a “net loss of future
accumulations to an estate.” (Report of Dr. Ireland, Doc. No. 146-2, pp. 5-7) Noting similarities
between Missouri and Idaho’s wrongful death statutes, Ireland references an Idaho Supreme
Court case, Pfau v. Comair Holdings, Inc., 135 Idaho 152 (2000), rejecting an inheritance claim
on the basis that decedent must have had a legal obligation to provide for a survivor to recover
wrongful death damages under the Idaho wrongful death act. (Id., p. 6) Ireland also assumes that
Kevin Graff would likely have married his girlfriend and changed his will to make her his
primary beneficiary as opposed to his brother and sisters. (Id., p. 7)

19

Plaintiffs argue Dr. Ireland’s opinions on the legal basis for their claim are inadmissible
because they invade the Court’s responsibility to instruct the jury on legal principles governing
the case. (Motion, Doc. No. 146, p. 14) As discussed above, a beneficiary’s loss of an expected
inheritance, if properly supported by the evidence, is recoverable as an element of damages under
Missouri’s wrongful death statute. Moss, 562 F.Supp. at 874 (internal citations omitted). Because
it is not appropriate for experts to draw legal conclusions or interpret laws, see In re Genetically
Modified Rice Litig., 2010 WL 2326036, at *5 (E.D. Mo. June 7, 2010), the Court will exclude
Dr. Ireland’s testimony in this regard.
Plaintiffs also argue Ireland’s opinion that Kevin Graff would likely have married and
changed his will is speculative, unsupported by the evidence, and overlooks the professional
standard to take the decedent “as you find him.” (Motion, Doc. No. 146, p. 14) The Court will
grant Plaintiffs’ motion to exclude Ireland’s opinion regarding the likelihood that Kevin Graff
would marry, however, that issue may remain a question of fact for the jury. Whether the Graff
Plaintiffs would have continued “to be the natural object of [Kevin’s] . . . beneficence” had he
lived to his life expectancy is a question for the jury to determine. Moss, 562 F. Supp. at 875.
Brant Savander, Ph.D., P.E.
Dr. Savander was retained by Defendants to opine on the boat’s speed, structural
performance and design. He was asked to address the following technical questions: 1) did the
“heavier and more powerful engines” contribute to the loss of control of the boat; 2) what was the
boat speed at the time of water entry; and 3) what is the structural performance of the hull and
canopy system, with and without the window bars, while being subjected to the loads encountered
during the accident. (Savander Report, Doc. No. 168-2, p. 10) Savander opined that the new

20

higher power engines installed in the boat increased the top speed from 120 mph to approximately
155 mph and added roughly 400 lbs in weight to the boat, thereby increasing the margin for error
afforded its operators. (Id., p. 16) Savander further opined that the cause of the accident was due
to Decedents losing control of the boat. (Id.)
Savander performed more than 100 computer simulations using a CFD software program
known as Starccm+, and then provided data from four simulations, one each for the assumed
speeds of 100, 120, 140 and 160 mph, which he felt looked most like the Kennedy photograph
sequence7, to Dr. Anthony Caiazzo for structural analysis.
Anthony Caiazzo, Ph.D., P.E.
Dr. Caiazzo was also retained by Defendants to opine on the boat’s speed, structural
performance and design. Caiazzo was asked to address the overall structural design of the boat
and review the engineering methodology used by Plaintiffs’ experts to reach their findings.
(Caiazzo Report, Doc. No. 138-13, p. 4) Based on his analyses, Caiazzo concluded that “[g]lobal
finite element analyses of the [boat], under normal running attitude, side hull slamming pressures
and topside deck loading do not indicate any design deficiencies.” (Id., p. 31) Caiazzo took
Savander’s four CFD simulations and created his own series of structural analyses using another
software program known as ABAQUS. He visually compared the resulting computer generated
damage predictions, depicted as different colors on a map-like graphic, to the post-accident
photographs, and concluded that the map for the load case which Savander titled “140 mph”
looked most similar to the actual damage. (Id.) Lastly, Caiazzo performed an FEA structural

7

The sequence of photos taken by Mr. Kennedy at the scene of the accident is shown in
Images 1-8 of Figure 14 in Dr. Savander’s report.

21

analysis of the canopy and polycarbonate region, with and without the window bars, again using
the four CFD estimated pressure cases from Savander, and concluded that window bars “reduce
the peak inward deflection of the transparency such that it would have remained stable” at speeds
of 140 mph. (Id.)
In support of their motions to exclude Savander and Caiazzo, Plaintiffs argue that neither
one have any background or experience with powerboats, canopy safety systems, polycarbonate
transparencies, or materials failure analysis. Plaintiffs also take issue with the reliability of their
methodologies in that neither CFD nor FEA has ever been used to analyze materials failure,
accident reconstruction or forensic engineering in the context of a high-speed boating accident.
It is well settled that an expert need not have experience with the particular product at
issue to be qualified. Appropriate engineering background and experience in a particular field can
be sufficient to qualify the expert. Stone & Alter Real Estate Co. v. Hobart Corp., 2003 WL
25694932, at *3 (E.D.Mo. Mar. 18, 2003). See also Morton v. Homelite, Inc., 183 FRD 657, 660
(W.D.Mo.1998) (mechanical engineer and experience with fuel containment and leak avoidance
in aerospace industry qualified expert in design defect case involving multipurpose saw). The
Court finds Drs. Savander and Caiazzo are qualified by education and experience to testify as
experts in this case. The Court further finds their testimony “[g]rounded in the methods and
procedures of science.”8 Daubert, 509 U.S. at 590. Disagreement with the assumptions and

8

CFD is a branch of fluid mechanics that uses numerical methods and algorithms to solve
and analyze problems that involve fluid flows. (www.ata-3.com/services/computational-fluidsynamics-cfd (December 12, 2013)). FEA is computer modeling of products and systems in a
virtual environment, for the purpose of finding and solving potential or existing structural or
performance issues. (www.plm.automation.siemens.com (December 12, 2013)).

22

methodology used does not warrant exclusion. Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th
Cir. 2006). Plaintiffs’ motions to exclude the testimony of Drs. Savander and Caiazzo will be
denied.
Christopher Long, M.D.
Dr. Long is a forensic toxicologist who opines that THC concentrations in Graff’s
postmortem blood samples evidence marijuana use within three hours of the accident and that
Graff was impaired at the time of the accident. (Long Report, Doc. No. 165-3, pp. 3-4) Plaintiffs
take issue with Dr. Long’s reliance on the results of postmortem blood samples and his failure to
address or rule out postmortem redistribution to explain the presence of THC in Graff’s blood.
(Motion, Doc. No. 165, p. 6) Plaintiffs also challenge Long’s application of the methodology
discussed in two articles authored by Marilyn A. Huestis, et al. (“Huestis works”). (Id., pp. 9-12)
Finally, Plaintiffs argue Long’s testimony should be excluded because of its prejudicial impact.
(Id., p. 15)
As a general rule, the factual basis of an expert opinion goes to the weight of the
testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for
the opinion in cross-examination. Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005) (citing
Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995)); Archer Daniels
Midland Co. v. Aon Risk Servs., Inc. of Minn., 356 F.3d 850, 858 (8th Cir. 2004) (citation
omitted). On the record made, the Court finds Long’s testimony is “[g]rounded in the methods
and procedures of science,” and will therefore, deny Plaintiffs’ motion to exclude his opinions
and testimony. Daubert, 509 U.S. at 590. Plaintiffs’ argument that Long’s opinions should be
excluded as prejudicial is more appropriately raised in a motion in limine.

23

B. Defendants’ motions to exclude expert testimony
Eric Greene
Greene, a naval architect and specialist in marine composite construction, was retained by
Plaintiffs to ascertain the cause of the boat’s structural failure and the cause of death. (Greene
Report, Doc. No. 138-15, p. 4) Based on his forensic engineering and failure analysis
investigation, Greene concluded that the design and construction of the boat’s canopy and deck
did not comply with industry guidelines and standards relating to enclosed cockpit canopies for
racing series boats, i.e. the Lavin Guidelines,9 and that the boat had a number of design defects
that contributed to the failure of the cockpit canopy system. (Id., pp. 7-10) In particular, Greene
concluded that the boat’s deck and canopy structure was not designed to withstand the loads of
capsizing. (Id., p. 10) He also reported on a number of indications that the transparency did not
fail from impact with the water, including but not limited to “numerous shear failures at bolted
connections, single failed cap fastener is failed on side away from transparency edge, missing
polycarbonate in area of starboard roll bar support, fracture pattern in polycarbonate transparency,
and no fractured polycarbonate found in cockpit.” (Id., pp. 10-11)
Defendants seek to exclude Greene’s report and testimony on grounds that he did not
adequately test or inspect the boat, attempt to recreate the accident or predict the actual pressure
loads that occurred during the accident, or rule out alternative explanations for the canopy failure.

9

On February 13, 2013, Greene issued a supplemental report based upon his review of the
2002 Lavin Guidelines, the version that applied when Defendants built the subject boat. (Greene
Supplemental Report, Doc. No. 158-1) Greene found that specific recommendations cited in the
2002 Guidelines were not followed in the design and construction of the subject boat. (Id., pp. 35)

24

The lack of inspection goes to the weight of Greene’s testimony and not to its admissibility. See
Lauzon v. Senco Products, Inc., 270 F.3d 681, 694 (8th Cir. 2001) Further, an expert’s testimony
is not precluded by the failure to rule out all other possible theories of the event; the possibility of
other explanations goes to weight, not admissibility, of testimony. Id. Defendants’ motion to
exclude Greene’s opinions and testimony will be denied.
Scott Graham, P.E.
As discussed in detail above, Graham was retained to rebut Savander and Caiazzo’s CFD
and FEA analyses. Defendants challenge Graham’s rebuttal opinions as unsupported by any
testing or computer modeling of his own. Although Graham claims certain variables would have
changed or altered Savander and Caiazzo’s results, Defendants argue he did not look at the inputs
or run any computer modeling with the Starccm+ or ABAQUS programs as part of his critique.
Again, these arguments for exclusion go to the weight, not admissibility, of this testimony.
Raising questions about, and exposing gaps in analyses and conclusions is a task for Defendants
to perform in front of a jury. Hanrahan v. Wyeth, Inc., 2012 WL 2395986, at *4 (E.D. Mo. June
25, 2012). Defendants’ motion to exclude the opinions and testimony of Graham will be denied.
Anand Shah, P.E.
Shah, a materials expert, was retained by Plaintiffs to examine the failed enclosed
cockpit/canopy, including the windshield, and provide technical opinions regarding the cause of
the boat’s failure. (Shah Report, Doc. No. 191-1, p. 3) Shah identified several design defects in
the boat which he opined directly contributed to the failure of the cockpit canopy system,
including:

25

$

the use of a wraparound style, large, continuous one piece, monolithic polycarbonate
windshield, of nominal half-inch thickness, in a bolted configuration, in which the
windshield can experience structural loading

$

canopy structure insufficiently reinforced to distribute and share structural loads

$

unreinforced, unsupported section of canopy structure above the windshield can collapse
in the event of direct impact with water in a rollover accident

$

sandwich construction of the composite in the deck, canopy, and sides of the boat is not as
structurally efficient as the bottom of the boat

(Id., p. 10). Shah concluded that the canopy design defects should have been foreseeable, and
could have been easily eliminated by Defendants. (Id.) Further, the windshield was not strong or
stiff enough to accommodate load sharing with the composite canopy, and the window bars
solution was not a reasonable response of a manufacturer and not properly engineered to
overcome the design defects. (Id.) Finally, in light the evidence of the windshield fracture
process, and his evaluation of the window roll bar design, material, and roll bar installation, it was
Shah’s opinion that the canopy failure would have occurred even if the window bars were present
at the time of this accident. (Id., p. 11)
Defendants challenge Shah’s opinions as unsupported by scientific testing or analysis.
They point to the absence of computer modeling or accident reconstruction, and that no
predictions were made regarding the pressure loads the boat might have been subjected to. Again,
these arguments for exclusion go to the weight, not admissibility, of this testimony. See Larson,
414 F.3d at 941. Defendants’ motion to exclude the opinions and testimony of Shah will be
denied.

26

Lane Hudgins
Ms. Hudgins is a forensic economist retained to opine on Plaintiffs’ economic loss. In her
initial report10, Hudgins estimates Linda Dejana’s total economic loss through her husband’s
projected retirement and life expectancy, including lost earnings and employment benefits net of
personal consumption and lost household services, to be approximately $4,610,556. (Hudgins
Report, Doc. No. 201-2, p. 5) Hudgins calculated Philip Dejana’s base earnings by averaging his
combined W-2 wage earnings and S-Corporation distributions for the period from 2003 to 2007.
(Id., p. 3; Supplemental Report, Doc. No. 201-1, p. 3)
Defendants maintain that Hudgins’ testimony should be excluded because she does not
have the underlying support on the record on which to base her analysis. In particular, Defendants
argue that Hudgins’ calculations are not reliable because she has not deducted the income of the
Dejana S-Corporation interests and investment properties, which they characterize as strictly
passive income. Defendants also contend Hudgins lacks details about the Dejana businesses and
how Philip Dejana was paid by the various S-Corporations. Plaintiffs respond that Hudgins
considered all sources of Philip and Linda Dejana’s income and separated active “wage” income
from passive income. Plaintiffs dispute that all of the S-Corporation earnings were passive.
(Response, Doc. No. 177, pp. 4-14)11

10

Hudgins supplemented her report after being provided with additional material, to
clarify certain aspects of her report and evaluate Ireland’s report, but did not change her estimate
of economic loss suffered by Linda Dejana. (Doc. No. 201-1, p. 2)
11

In support of their response, Plaintiffs submit an Affidavit of Dr. Hudgins wherein she
responds to certain statements made in Defendants’ motion to exclude her testimony. (Affidavit
of Dr. Lane Hudgins, Doc. No. 177-2) Defendants request the Court strike Hudgins’ Affidavit,
arguing it impermissibly supplements her testimony and opinions after the close of expert

27

Whether there is a sufficient foundation for Hudgins’ opinions and testimony is not clear
from the record at this point in time. Generally, questions as to the sources and bases of the
expert’s opinion affect the weight, rather than the admissibility of the opinion and are properly
left to the jury. See Larson, 414 F.3d at 941. Thus, Defendants’ motion to exclude Hudgins’
opinions and testimony regarding losses to Linda Dejana will be denied.
With respect to the Graffs, Ms. Hudgins calculated the net present value of accumulations
to Kevin Graff’s estate at $834,072. (Hudgins Report, Doc. No. 161-4, p. 6) She calculated these
net lost accumulations by identifying Graff’s earnings, income and benefits that could have
become part of his estate had he lived, then deducting a percentage for personal consumption.12
Defendants argue Hudgins’ testimony is inherently unreliable because lost accumulations to an
estate are not recoverable under R.S. Mo. § 537.090. (Motion, Doc. No. 161, pp. 9-12) As
discussed above, the Court has found that lost accumulations to beneficiaries is a recoverable
element of damages. Defendants’ motion to exclude the opinions and testimony of Hudgins
regarding the Graff Plaintiffs will be denied.
Donald Barceloux, M.D.
Dr. Barceloux is a medical toxicologist retained by Plaintiffs to interpret Graff’s post
mortem toxicology results, and specifically his THC level at the time of the accident. Dr.

testimony. (Reply, Doc. No. 201, p. 3) Striking a party's pleadings is an extreme measure, and, as
a result, motions to strike are viewed with disfavor and infrequently granted. Stanbury Law Firm
v. Internal Revenue Serv., 221 F.3d 1059, 1063 (8th Cir.2000) (internal quotations and citations
omitted). The Court will instead consider the Affidavit as additional argument.
12

Hudgins supplemented her report to address Dr. Ireland’s assumptions and opinions on
whether lost accumulations to an estate are allowed in Missouri and Graff’s marital status at the
time of his death. (Doc. No. 161-5)

28

Barceloux opines that the detectable amount of THC in Graff’s postmortem blood resulted from
postmortem changes rather than the use of marijuana during a time likely to cause impairment at
the time of the accident. (Doc. No. 162-1, p. 9) Defendants take issue with the medical texts
Barceloux relied on, the lack of clinical studies to support his theory, and incomplete witness
testimony. The factual basis of an expert opinion goes to the weight of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual basis for the opinion in
cross-examination. Archer Daniels, 356 F.3d at 858. On the record made, the Court finds
Barceloux’s testimony is “[g]rounded in the methods and procedures of science,” and will
therefore, deny Plaintiffs’ motion to exclude his opinions and testimony. Daubert, 509 U.S. at
590.
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Randy M. Scism’s Motion for Summary
Judgment [148] is DENIED.
IT IS FURTHER ORDERED that Defendant Marine Technology, Inc.’s Motion for
Summary Judgment [154] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment, or in the
Alternative, Partial Summary Judgment [166] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike Defendants’ Proposed
“Sur-Rebuttal” Expert Reports of Brant Savander and Anthony Caiazzo [138] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Exclude Parts of Thomas
Ireland’s Expert Testimony [146] is GRANTED consistent with the Court’s Memorandum and
Order.

29

IT IS FURTHER ORDERED that Plaintiffs’ Motions to Exclude Testimony and
Opinions of Anthony Caiazzo [155], Christopher Long [165], and Brant Savander [168] are
DENIED.
IT IS FURTHER ORDERED that Defendants’ Motions to Exclude Expert Testimony of
Eric Greene [158], Anand Shah, P.E. [159], Scott Graham, P.E. [160], Lane Hudgins [161], and
Donald Barceloux, M.D. [162] are DENIED.

Dated this 20th day of December, 2013.

_____________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

30