Lipp et al v. Ginger C, L.L.C. et al

Filing 458

ORDER entered by Judge Nanette Laughrey. Plaintiffs' Motions to Exclude Defendants' Expert Michael White, [Doc. 367 ], Carl Martin, [Doc. 369 ], and Fred Crouch, [Doc. 377 ], are granted in part and denied in part. Plaintiffs' Motion to Exclude the Testimony of Alfred Bowles, [Doc. 370 ], is denied. Plaintiffs' Motion to Exclude the Testimony of Audrey Navarro, [Doc. 368 ] is granted. (Farrington, Elizabeth)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JOHN P. LIPP and STEPHANIE S. LIPP,
Plaintiffs,
v.
GINGER C, L.L.C., et al.,
Defendants.

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Case No. 2:15-cv-04257-NKL

ORDER
Before the Court are Plaintiffs’ Motion to Exclude Testimony of Michael White, [Doc.
[367]], Audrey Navarro, [Doc. [368]], Carl Martin, [Doc. [369]], Dr. Alfred Bowles [Doc. 370],
and Fred Crouch, [Doc. [377]]. For the reasons discussed below, Plaintiffs’ Motions to Exclude
the Testimony of Michael White, Carl Martin, and Fred Crouch are each granted in part and
denied in part. Plaintiffs’ Motion to Exclude the Testimony of Audrey Navarro is granted.
Plaintiffs’ Motion to Exclude the Testimony of Dr. Alfred Bowles is denied.

I.

Background
On December 12–13, 2014, former Defendant Phi Kappa Phi Fraternity members hosted

a party at 507 South Fourth Street in Columbia, Missouri. Jack Lipp arrived at this party
sometime after 11:00 p.m. At some point in the next hour, Lipp went onto a second-floor
balcony on the south side of the property. Columbia Police believe party attendees had been
urinating off the deck throughout the night due to long bathroom lines inside the house. Lipp fell

18 feet off the balcony to the driveway below. Lipp died on December 25, 2014 as a result of his
injuries.
The balcony railing had been temporarily repaired by a prior owner of the property with
wooden boards. Many of the issues in this case center around the condition of the balcony—who
was responsible for repairing it, whether a balcony railing was in place, etc. At the time of Lipp’s
injury, 507 South Fourth Street was owned by Ginger C, which had an agreement with ACC to
redevelop the property. ACC planned to remove the existing structure on the premises to make
room for a large student apartment complex, and to this end ACC financed Ginger C’s purchase
of the property. However, in the spring and summer of 2014, the Columbia City Council
repeatedly tabled its consideration of ACC’s proposed project. Due to this delay, the existing
structure was leased in August 2014 to three male students, members of the PKP Fraternity, for
the upcoming school year. Roland Management had an agreement with Ginger C to manage the
rental property at 507 South Fourth Street.
Plaintiffs—the surviving parents of Jack Lipp—filed this suit on November 9, 2015.
Their Fourth Amended Complaint, [Doc. 191], contains four counts of negligence, one each
against ACC, Ginger C, Roland, and Scott Swafford, as Class Representative for Pi Kappa Phi
Fraternity. Plaintiffs reached a settlement with Pi Kappa Phi, which the Court approved, and
Scott Swafford was terminated as a Defendant thereafter.
Plaintiffs move to exclude five of Defendants’ designated expert witnesses: Michael
White, Audrey Navarro, Carl Martin, Dr. Alfred Bowles, and Fred Crouch.
II.

Discussion
A. Legal Standard

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Federal trial judges have “broad discretion” in making decisions concerning expert
testimony’s admissibility. Bradshaw v. FFE Transp. Servs., Inc., 715 F.3d 1104, 1107 (8th Cir.
2013). Under Fed. R. Evid. 702 and the guidance set forth in Daubert, expert testimony should
be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir. 2014)
(citing U.S. v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (holding that doubts about usefulness
of expert testimony are resolved in favor of admissibility)); Robinson v. GEICO Gen. Ins. Co.,
447 F.3d 1096, 1100 (8th Cir. 2006) (holding that expert testimony should be admitted if it
“advances the trier of fact’s understanding to any degree”); Lauzon v. Senco Prods., Inc., 270
F.3d 681, 686 (8th Cir. 2001) (Rule 702 “clearly is one of admissibility rather than exclusion”).
“As long as the expert’s . . . testimony rests upon ‘good grounds, based on what is known’ it
should be tested by the adversary process with competing expert testimony and crossexamination, rather than excluded by the court at the outset.” Id. (citing Daubert, 509 U.S. at
590, 596). Exclusion of expert opinion is proper “only if it is so fundamentally unsupported that
it can offer no assistance to the jury.” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th
Cir. 1997).
Even so, pursuant to Daubert, the Court’s role as “gatekeeper” in determining the
admissibility of expert testimony requires the Court to conduct “a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93. “The main purpose of Daubert
exclusion is to prevent juries from being swayed by dubious scientific testimony.” In re Zurn
Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). This question of whether
“an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand” is

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known as the “reliability and relevancy” test. Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th
Cir. 2012) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)).
When making the reliability and relevancy determinations, a court may consider: (1)
“whether the theory or technique can be or has been tested”; (2) “whether the theory or technique
has been subjected to peer review or publication”; (3) “whether the theory or technique has a
known or potential error rate and standards controlling the technique’s operation”; and (4)
“whether the theory or technique is generally accepted in the scientific community.” Russell,
702 F.3d at 456 (citing Daubert, 509 U.S. at 592–94).
The Daubert standard is “flexible” and the above factors are guidelines rather than “a
definitive checklist.” Jaurequi v. Carter Manufacturing Company, Inc., 173 F.3d 1076, 1082
(8th Cir. 1999). The expert’s testimony must at the very least satisfy “the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field,” but “whether
Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is
a matter that the law grants the trial judge broad latitude to determine.” Kumho Tire, 526 U.S. at
151, 153.
Defendants have the burden of establishing the admissibility of their experts’ testimony
by a preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir.
2001) (citing Daubert, 509 U.S. at 592).
B. Michael White
Michael White is a real estate attorney with “more than fifty years of experience
representing clients in complex commercial real estate.” [Doc. 399, p. 3]. Defendants ACC
designated Mr. White “to testify ‘regarding the standard of care and industry custom and practice
for real estate developers of existing property, the Planned Unit Development [at issue in this

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case], the entitlement and permitting process, [and] the standard of care and custom of practice in
the real estate industry regarding inspections and inspection periods.’” Id.
Plaintiffs point to five of Mr. White’s opinions that they believe must be excluded under
Daubert, opinions regarding (1) whether Defendants Ginger C and ACC had a joint venture
relationship; (2) whether Ginger C or its managing member were agents of ACC; (3) the weight
and effect of emails in interpreting documents; (4) the Parties’ intent; and (5) other comments
regarding the effect that finding a joint venture relationship existed between Ginger C and ACC
would have on other real estate transactions. [Doc. 367, pp. 2 – 3].
1. Joint Venture Opinions
Mr. White’s report includes a detailed summary of the elements of a joint venture under
Missouri law. [Doc. 367-2, pp. 4 – 5]. He then applies his law to the facts of this case and
reaches the conclusion that there is no joint venture between ACC and Ginger C.
Plaintiffs maintain that Mr. White’s opinion must be excluded because it reaches the
ultimate legal issues in the case and that the opinion is not the product of reliable methods
because it relies on arguments the Plaintiffs have not made. [Doc. 367, pp. 5–6]. Plaintiffs also
characterize Mr. White’s testimony as impermissible because whether or not an implied joint
venture resulted from the Parties’ business relationship is a legal conclusion to be reached by the
judge or jury. Mr. White’s report states: “It is my opinion that, based upon my review of the
documents referenced herein, Ginger has no rights with respect to the student housing once it is
built. Ginger had no control over the student housing project . . . It retained no ownership
interest. Ginger was merely a seller that received a loan . . .” [Doc. 367-2, p. 5].
Expert witnesses—even attorneys testifying as experts—may not offer legal conclusions
about a case. In re Acceptance Ins. Companies Sec. Litig., 423 F.3d 899, 905 (8th Cir. 2005).

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Whether or not testimony constitutes a legal conclusion, Fed. R. Evid. 702 requires that the
“specialized knowledge will help the trier of fact to understand the evidence or determine a fact
in issue.” “[E]xpert testimony not only is unnecessary but indeed may properly be excluded in
the discretion of the trial judge ‘if all the primary facts can be accurately and intelligibly
described to the jury, and if they, as men of common understanding, are as capable of
comprehending the primary facts and of drawing correct conclusions from them as are witnesses
possessed of special or peculiar training, experience, or observation in respect of the subject
under investigation.’” Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (quoting United States
Smelting Co. vs. Parry, 166 Fed. 407, 411, 415 (8 Cir. 1909)).
Defendants insist that the legal issues in this case are “beyond the expertise of most lay
jurors.” [Doc. 399, p. 5]. Here, Mr. White’s opinions about the requirements for a joint venture
under Missouri law are neither technical nor complex; it only needed one half of one page in his
report to explain. See [Doc. 367-2, p. 4]. Allowing testimony as to the requirements for a joint
venture—a matter that can be illustrated succinctly in jury instructions—would be improper
because it is unnecessary, not helpful to the jury and, cloaked as expert testimony, would be
unduly prejudicial. See Salem, 370 U.S. at 35. Defendants argue “Mr. White’s experience,
training, and education qualifies him to give opinions in this case.” [Doc. 399, p. 5]. But the
substance of those opinions are still subject to Rule 702, and the portions of Mr. White’s
testimony that relate to the legal requirements for a joint venture are improper. See Lewis v. Butz,
512 F.2d 681, 683 (8th Cir. 1975) (“[W]hether a joint venture is in existence is a question of fact
to be determined by the trier of fact.”).
Likewise, Mr. White’s opinions regarding the sufficiency of the evidence supporting
Plaintiffs’ joint venture theory and his ultimate conclusions about the lack of a joint venture

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relationship between Ginger C and ACC should be excluded. See Farmland Indus. v. FrazierParrott Commodities, Inc., 871 F.3d 1402, 1409 (8th Cir. 1989) (“[S]pecial legal knowledge of
the judge makes the witness’ testimony superfluous [and] [t]he admission of such testimony
would give the appearance that the court was shifting to witnesses the responsibility to decide the
case.”); McCabe v. Macaulay, 2007 WL 625569, at *3 (N.D. Iowa Feb. 26, 2007) (“[F]ederal
courts typically prohibit lawyers, professors, and other experts from interpreting the law for the
court or from advising the court about how the law should apply to the facts of a particular
case.”). See generally Morley v. Square, Inc., 2016 WL 1728367, * 2 (E.D. Mo. April 29, 2016)
(excluding an expert’s testimony as to whether or not a joint venture existed because “concepts
surrounding human interaction and basic business activity will not be foreign to the jury. These
matters are not technical or complex . . .”).
Plaintiffs’ Motion is granted as it applies to Mr. White’s testimony regarding the alleged
joint venture relationship between Defendants Ginger C and ACC.
2. Agency Opinions
Plaintiffs make similar arguments for the exclusion of Mr. White’s testimony regarding
an alleged agency relationship between ACC and Ginger C, or Ginger C’s representative Mr.
Asmar. As in the joint venture relationship, an expert witness is not necessary to explain to the
jury what Mr. White explained in just four sentences in his report. Like his opinions on the
alleged joint venture relationship, all the primary facts surrounding the alleged agency
relationship “can be accurately and intelligibly described to the jury.” Salem, 370 U.S. at 35.
Defendants rely on a case from another district outside of the Eighth Circuit for support
that Mr. White should be able to opine on the issues of joint venture and agency. See [Doc. 399,
p. 6] (citing Board of Trustees, Sheet Metal Workers’ Nat. Pension Fund v. Palladium Equity

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Partners, LLC, 722 F. Supp. 2d 845, 853 (E.D. Mich. 2010)). Even if the Court was persuaded
by Palladium, Mr. White’s testimony seeks to both tell the jury the legal elements of a joint
venture and agency relationship as well as point out what he feels is missing in the documents he
reviewed to demonstrate either relationship. The Court will exclude Mr. White’s opinions on the
alleged agency relationship for the reasons discussed above: even those opinions that do not
explicitly offer legal conclusions are unnecessary and, cloaked as expert testimony, would be
unduly prejudicial. See Southern Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320
F.3d 838, 841 (8th Cir. 2003) (“[E]xpert testimony on legal matters is not admissible.”).
3. Interpretation and Effect Opinions
Mr. White’s report includes references to “primary” and “formal documents” between
ACC and Ginger C, and why those documents “carry more force in determining the legal status
of the parties than do the various emails” between ACC and Ginger C. [Doc. 399-1, pp. 5–6].
Testimony regarding the weight and credibility of evidence as well as issues of contract
interpretation are left to the jury. See United States v. Klaphake, 64 F.3d 435, 438 (8th Cir. 1995)
(“As a general rule, ‘questions of law are the subject of the court's instructions and not the
subject of expert testimony.’”) (citations omitted). These opinions are improper and must be
excluded because those opinions do not assist the trier of fact and impermissibly invade the role
of the court. See Farmland, 871 F.2d at 1409 (“[S]pecial legal knowledge of the judge makes the
witness’ testimony superfluous [and] [t]he admission of such testimony would give the
appearance that the court was shifting to witnesses the responsibility to decide the case.”). Mr.
White’s testimony regarding interpretation, effect and meaning of emails and legal documents is
excluded.
4. Opinions Regarding Parties’ Intent

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Mr. White’s report also states that certain documents and amendments “show that it was
the intent of the parties that the properties would be vacant by the time [ACC] acquired them
from Ginger C.” [Doc. 399-1, p. 11]. Under Fed. R. Evid. 702, the testimony must be reliable,
because the jury will understandably give additional weight to opinions offered by expert
witnesses. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). It
is well settled that expert witnesses cannot draw legal conclusions or opine on the Parties’ state
of mind. See Garrett v. Albright, 2008 U.S. Dist. LEXIS 18615, at *11 (W.D. Mo. Mar. 11,
2008); Christensen v. Lemaster, 2006 U.S. Dist. LEXIS 16905 (D. Idaho 2006) (“[The expert] is
not an expert in either the law or psychology—and did not personally observe [defendant’s]
conduct—and thus has nothing to offer” on the defendant’s state of mind). Thus, the Court
excludes Mr. White’s opinions on the intent of the Parties.
5. Other Challenged Opinions
Plaintiffs last challenge to Mr. White’s testimony rests in what Plaintiffs call “rank
speculation and hyperbole.” By way of example, Plaintiffs note that Mr. White concludes that
finding a joint venture between Ginger C and ACC would also mean that “virtually every
contract for the sale of real estate for development” would create a joint venture arrangement.
[Doc. 367, p. 10] [Doc. 399-1, p. 5]. During oral argument, Plaintiffs also point to Mr. White’s
opinion that, if a “mere financial interest in a contract . . . propel[s] one to the position of an
owner,” “every bank that makes a real estate loan would be liable to the general public for the
conditions on the property.” [Doc. 399-1, p. 20]. At this stage, the Court cannot say as a matter
of law that these statements are inadmissible. The matter can be raised again at trial in the
context of the testimony of Mr. White.

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Therefore, Plaintiff’s Motion to Exclude the Testimony of Michael White, [Doc. 367], is
granted as it applies to Mr. White’s opinions on the alleged joint venture, the alleged agency
relationship, opinions regarding the proper weight given to certain evidence in interpreting
documents, and opinions regarding the Parties’ intent.
Finally, Defendants note that Mr. White may be asked to rebut specific allegations by
Plaintiffs’ experts. [Doc. 399, p. 8]. Impeachment of expert witness through contradictory
testimony by another qualified expert is permitted under the Federal Rules of Evidence. TAMKO
Bldg. Products, Inc. v. Factual Mut. Ins. Co., 890 F. Supp. 2d 1129, 1144 (E.D. Mo. 2012).
However, because the challenged testimony of Plaintiffs’ experts does not touch on the subjects
listed above—joint venture, agency, opinions regarding the proper weight given to certain
evidence in interpreting documents, and the Parties’ intent—Defendants must ensure not to
introduce testimony on rebuttal that the Court has excluded through this Order.
C. Audrey Navarro
Audrey Navarro is designated by Defendants as an expert in commercial real estate.
[Doc. 401, p. 2]. Defendants ACC and Ginger C “designated Ms. Navarro to testify regarding the
standard of care and the customs and practices of redevelopers applicable to them during the
Columbia redevelopment project.” Id. at 1.
Plaintiffs seek to exclude specific opinions contained in Ms. Navarro’s report. Plaintiffs
specifically challenge the following opinions in Ms. Navarro’s report on the grounds that the
opinions state legal conclusions or include interpretation of legal documents:
•
•
•

[Initial Op.] “Defendants ACC . . . prior to the incident, had no possession,
control or access to the subject property” [Doc. 368-2, p. 2].
[1] “ACC did not own the subject property, nor have control of the subject
property at the time of the incident.” Id. at 3.
[6] “Even though there were requests made by the Buyer (ACC) for template
lease documents to be used [] by Ginger C, LLC, Ginger C had the authority,
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•
•
•

•

which it exercised, to continue to use its current lease template therefore
demonstrating control over the subject property.” Id. at 4.
[7] “Although the purchase contract [] required ACC’s consent for lease
modification by the Seller (Ginger C, LLC) . . .” Id.
[12] “Without a repair request, the property manager and owner would be
unaware of any potential hazard . . . Tenant was required to keep the property in
good order and repair.” Id. at 5.
[14] “The Missouri Real Estate Commission (MOREC) is the governing agency
over Real Estate Agents and Property Management Professionals. RSMO
Missouri General Assembly Chapter 339 is the statute that defines who is required
to carry a license, and who is exempt from licensing. It does not, however,
address standards of care related to the maintenance of a property by property
management professionals. In addition, it outlines exemptions for Developers and
Property Owners.” Id. at 5–6.
[16] “In the Lease Agreement (Exhibit 509) of the subject property, Lessee
acknowledges that it has inspected the property and finds it to be in good repair
and that Lessee will keep the property in good repair. Further, Lessee assumes
responsibility for the ‘actions, damages, or destruction to said premises caused by
Lessee's visitors, guests or invitees.’” Id. at 6.

Plaintiffs’ argue that the above statements are inadmissible as legal opinions or conclusions.
Defendants maintain that Ms. Navarro is merely opining on the industry standard, an area
Defendants believe is well within her area of expertise. [Doc. 401, p. 2].
“[E]xpert testimony on legal matters is not admissible. Matters of law are for the trial
judge, and it is the judge’s job to instruct the jury on them.” S. Pine Helicopters, Inc. v. Phx.
Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003); see also United States v. Klaphake,
64 F.3d 435, 438-39 (8th Cir. 1995) (“[Q]uestions of law are the subject of the court's
instructions and not the subject of expert testimony.”) (citation omitted). Ownership, possession,
control, and authority are legal opinions or conclusions, so Ms. Navarro’s initial opinion and
opinions [1] and [6] should be excluded. Opinion [7], in its entirety, states the industry standard
for inclusion of particular lease terms. But the opinion also includes the effect of those lease
provisions: “this is a common requirement of any buyer, and is typically intended to avoid
modifications that will jeopardize the Buyers intended future use of the property.” [Doc. 382-2,

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p. 4]. This is legal interpretation of a contract provision and should be excluded. Regarding
Opinion [12], Ms. Navarro does note the absence of a repair request in the materials she
reviewed, which Defendants believe accurately summarizes Ms. Navarro’s findings after
reviewing the materials in the record. Again, however, the opinion goes farther than that, into the
duties required under a contract. That is a legal opinion, and Ms. Navarro’s Opinion [12] is
excluded except as it pertains to the absence of a repair request in the documents she reviewed.
Opinions [14] and [16] state and interpret the law, and for the reasons discussed above, are
improper expert testimony and thus excluded.
Additionally, Plaintiffs challenge the following opinion on the grounds that Ms. Navarro
is not qualified to testify as an expert to the state of mind of the Parties: “3. The Contract and
Subsequent Amendments contained many contingencies, and all parties were aware that it may
not close without satisfying these contingencies.” Id. at 4. Defendants contend that this opinion is
not speculation because Ms. Navarro relied on testimony and contract documents in the record.
[Doc. 401, p. 7]. Plaintiffs contend it is unclear from Ms. Navarro’s report what documents she
relied on in forming this specific opinion, since she does not make specific citations to the
record. [Doc. 433, p. 4]. Without the benefit of knowing what specific documents Ms. Navarro
relied on in forming her opinion, the Court agrees with Plaintiffs that Opinion [3] is excluded as
an improper inference of the knowledge of the parties. This ruling is subject to reconsideration
if Ms. Navarro identifies specific statements by the parties about their understanding, for
example.
Finally, Plaintiffs challenge the following opinions on the grounds that the opinions
themselves are improper expert testimony because they would not assist the trier of fact:

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•
•

[10] “There was no reference, however, in any of the documents and relevant
emails I reviewed that states there is a ‘Joint Venture’ between Buyer & Seller.”
Id. at 5.
[11] “Based on my review of the referenced material, I found no evidence that the
temporary repair in question was disclosed to ACC by the Seller Derrow
Properties or Ginger C, LLC.” Id.

Defendants contend that this testimony is helpful to the jury—who will not be able to review all
documents in the record—and accurately summarizes Ms. Navarro’s findings after reviewing the
materials. The Court disagrees. As for the phrase “joint venture”, the relevant legal documents
or emails that Ms. Navarro might be referring to are not so voluminous that a jury will not be
able to decide whether the phrase “joint venture” is present in the evidence actually admitted at
trial. As for the issue of disclosure by Derrow Properties, the testimony of the relevant witnesses
or admission of relevant documents as to whether there was disclosure is easily solicited for the
jury. Having an expert nebulously refer to unknown documents not containing evidence of
disclosure is not very helpful and could be misleading.

Her observations are therefore

inadmissible under Rule 702.
Plaintiffs’ Motion is granted as to Ms. Navarro’s Opinions [10], [11], and the portion of
Opinion [12] that relates to the absence of a repair request in the record, as well as Ms. Navarro’s
initial opinion and Opinions [1], [3], [6], [7], [12], [14], and [16]. Because the Court excludes
each of Ms. Navarro’s opinions challenged in Plaintiffs’ Motion, Plaintiffs’ Motion to Exclude
Expert Opinions of Audrey Navarro is granted, although this does not exclude Ms. Navarro as an
expert altogether.
As with Mr. White, Defendants note that Ms. Navarro may be asked to rebut specific
allegations by Plaintiffs’ experts. [Doc. 399, p. 8]. Impeachment of expert witness through
contradictory testimony by another qualified expert is permitted under the Federal Rules of
Evidence. TAMKO Bldg. Products, Inc. v. Factual Mut. Ins. Co., 890 F. Supp. 2d 1129, 1144
13

(E.D. Mo. 2012). However, because the challenged testimony of Plaintiffs’ experts does not
touch on the subjects listed above, Defendants must ensure not to introduce testimony on rebuttal
that the Court has excluded through this Order.
D. Carl Martin
Carl Martin is the President of Engineering Perspective, Inc., and served twenty-eight
years in forensic engineering services as the principal engineer for that company. [Doc. 402-1,
p. 11]. He holds both a Bachelor’s Degree in Mechanical Engineering and a Master’s Degree in
Engineering Management. Id. Mr. Martin “performed an engineering analysis of the balcony
railing at issue in this case, and opines about the custom and practice in the industry for property
condition assessments on existing property to be redeveloped.” [Doc. 402, p. 2]. Defendants
designated Mr. Martin “to refute Plaintiffs’ allegation that the railing caused Mr. Lipp’s accident
and to discredit Plaintiffs’ experts’ [] opinions.” Id.
Plaintiffs challenge four of Mr. Martin’s opinions. First, Mr. Martin states that it is
“possible” the balcony’s top rail was already detached when Jack Lipp fell. [Doc. 369-1, p. S-4].
Plaintiffs contend that, since Mr. Martin cannot establish with certainty whether or not the rail
was detached, the opinion is speculative and must be struck. The Court disagrees. As the Eighth
Circuit has noted, some speculation is inevitable. See Group Health Plan, Inc. v. Philip Morris
USA, Inc., 344 F.3d 753, 760 (8th Cir. 2003). Although speculative statements are inadmissible
as a general rule, “that does not mean that testimony must be excluded if an expert occasionally
speculates . . .” Id. In situations such as this—where no expert can establish a fact with
certainty—a certain amount of speculation is necessary. The issue can be addressed by Plaintiffs’
own expert, Mr. Childress, who admits that he cannot be sure whether or not the railing was
present yet still opines that “[t]he balcony railing is reported to have been in place at the time

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[Jack Lipp] is reported to have fallen.” [Doc. 402-2, p. 5]. Plaintiffs’ concerns that it could be
equally probable that the top rail was intact goes to weight, not admissibility, and may be
addressed during cross-examination. See Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir. 2001) (“As long as the expert’s . . . testimony rests upon ‘good grounds, based on what is
known’ it should be tested by the adversary process with competing expert testimony and crossexamination, rather than excluded by the court at the outset.”) (citing Daubert, 509 U.S. at 596).
Second, Plaintiffs challenge Mr. Martin’s reliance on Defendants’ actual knowledge in
his assessment. Specifically, Plaintiffs allege Mr. Martin “conflates the defendants’ actual
knowledge with facts that have come to light only through discovery in this litigation, attempting
to provide defendants with redeeming knowledge they simply did not have when Jack Lipp
died[:] that the balcony of the 507 Property was ‘effectively made safe’ by the tenants and
owners by making it a controlled access zone . . .” [Doc. 369, p. 4]. The issues in this case
include Defendants’ knowledge and conduct; the tenants of 507 South Fourth Street are not
Parties. Plaintiffs contend, then, that because “[n]o defendant has testified that it had knowledge
of the lock on the balcony door, or that it knew of the alleged sign posted by [the tenant],” Mr.
Martin’s opinion regarding safety precautions must be excluded.
Defendants suggest “all Mr. Martin does is opine that the balcony was in a controlled
access zone.” [Doc. 402, p. 7]. But Mr. Martin also states that the “tenants and owners addressed
the unsafe condition” without pointing to any evidence in the record that the owners of the
property knew about any warning sign or locked doors. As a result, the Court will exclude Mr.
Martin’s testimony that the owners knew of or attempted to address the unsafe condition.
Third, Plaintiffs move to strike Mr. Martin’s opinion regarding whether a temporary
balcony railing, if present, was so conspicuous that a reasonable person would have recognized it

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as a hazard because it is inconsistent with his other testimony and he is not qualified to give an
opinion on human factors like visibility. [Doc. 369, pp. 6–7]. While Mr. Martin never specifies
that a person on the night of the accident would have seen the railing, or that Jack Lipp himself
saw the railing, but only that the railing would have provided notice to “someone,” [402-2, p. 5]
the small probative value of this testimony is outweighed by its potential to suggest that there
was sufficient visibility on the deck on the night in question for Lipp to see the repair. There is
no evidence Mr. Martin has an expertise that would assist the jury on this issue. His opinion is
therefore excluded.
Finally, Plaintiffs challenge Mr. Martin’s opinion that even if the balcony railing had
been code compliant, it would not have prevented Jack Lipp’s fall. [Doc. 402-2, p. S-4]. He
opines that (1) many residential deck railings exist that cannot withstand 200 pounds of force,
and (2) the fall conditions do not support the idea that a code-compliant railing would have
prevented the fall. As Defendants argue, however, Plaintiffs’ expert Mr. Childress also admits
that “people fall off balconies all the time, unfortunately,” despite the presence of a railing. [Doc.
402-3, p. 4]. It is within Mr. Martin’s area of expertise and is not speculative to note that “many
residential deck railings exist that cannot withstand 200 pounds of force.” That opinion is
admissible under Rule 702. But because Mr. Martin admits that he does not know the details of
how Jack Lipp fell, and because his report does not explain what conditions he is referring to nor
what process he used in making his opinion, Mr. Martin’s statement that “the fall conditions do
not support the idea that a code-compliant railing would have prevented the fall” is excluded. See
Pro Serv. Auto., L.L.C. v. Lenan Corp., 469 F.3d 1210, 1216 (8th Cir. 2006) (“Where ‘opinion
evidence . . . is connected to existing data only by the ipse dixit of the expert,’ a district court

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‘may conclude that there is simply too great an analytical gap between the data and the opinion
proffered.’”).
Defendants once again note that Mr. Martin may be asked to rebut specific allegations by
Plaintiffs’ experts. [Doc. 399, p. 8]. Impeachment of expert witness through contradictory
testimony by another qualified expert is permitted under the Federal Rules of Evidence. TAMKO
Bldg. Products, Inc. v. Factual Mut. Ins. Co., 890 F. Supp. 2d 1129, 1144 (E.D. Mo. 2012).
However, Defendants must ensure not to introduce testimony on rebuttal that the Court has
excluded through this Order.
E. Dr. Alfred Bowles
Dr. Alfred Bowles is a Principal Consultant at Biodynamic Research Corporation. He
holds degrees in Mechanical Engineering (B.S.) and Medicine (M.D.). His consulting practice is
focused on “understanding how traumatic injuries occur as a result of physical exposure to
forces, accelerations and external stresses that apply to people in vehicle crashes, transportation
mishaps, workplace incidents and equipment malfunctions.” [Doc. 405-1, p. 1]. Defendants
retained Dr. Bowles, in part, to refute Plaintiffs’ allegation that the railing caused Mr. Lipp’s
accident and to discredit Plaintiffs’ Expert Dr. Mariusz Ziejewski’s opinions. [Doc. 405, p. 2].
Plaintiffs move to exclude Dr. Bowles because he cannot state his opinions with
certainty. [Doc. 370, pp. 1–2]. For example, in Dr. Bowles’ Opinion 13 he states: “There is
insufficient information available to indicate that Mr. Lipp’s presumed fall would have been
prevented by a code-compliant railing since Mr. Lipp’s activities and intentions are unknown in
the moments around the time of his alleged fall.” [Doc. 370-2, p. 10]. Plaintiffs contend that,
without certainty, Dr. Bowles’ opinions are not relevant and will not assist the trier of fact.

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The Court is unconvinced at this time. A qualified expert that explains why an opposing
expert’s theory cannot be certain is both relevant and helpful to the trier of fact. No fact
witnesses have testified that the railing was in place at the time of the accident, no witnesses saw
Jack Lipp on the balcony, and no witnesses saw him fall. [Doc. 405, p. 3]. No expert can give an
opinion about what happened precisely under these circumstances. Plaintiffs’ Motion to Exclude
the Testimony of Alfred Bowles, [Doc. 370] for lack of certainty is denied.
F. Fred Crouch
Fred Crouch is a real estate attorney that represents lenders, sellers, and buyers in
commercial real estate transactions. [Doc. 400-1, p. 14]. Defendants designated Mr. Crouch to
testify to the redevelopment process and to rebut the Plaintiffs’ experts’ opinions. [Doc. 400, p.
3]. Plaintiffs’ objections to Mr. Crouch’s testimony mirror those in their Motion to Exclude Mr.
Michael White—namely that Mr. Crouch’s opinions constitute improper expert testimony that
interprets legal documents and states legal conclusions.
For the reasons discussed above in Part B, analyzing Plaintiffs’ Motion to Exclude the
Testimony of Michael White, Mr. Crouch’s opinions regarding the existence of an agency
relationship, ownership, control, the Parties’ intent, the interpretation of statutes or legal
documents, and any other opinions that state legal conclusions are excluded. See Farmland
Indus. v. Frazier-Parrott Commodities, Inc., 871 F.2d 1402, 1409 (8th Cir. 1989) (“[t]he special
legal knowledge of the judge makes the witness' testimony superfluous [and] [t]he admission of
such testimony would give the appearance that the court was shifting to witnesses the
responsibility to decide the case.”) (citation omitted); In re Acceptance Ins. Cos. Sec. Litig., 423
F.3d 899, 905 (8th Cir. 2005) (“When . . . expert opinions are little more than legal conclusions,
a district court should not be held to have abused its discretion by excluding such statements.”);

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Specht v. Jensen, 853F.2d 805, 809 (10th Cir. 1988) (“testimony on ultimate issues of law” by an
expert witness “is inadmissible because is it detrimental to the trial process”).
Plaintiffs’ final category of challenged opinions—“Opinions that consist of rank
speculation and hyperbole”—are not excluded. At this stage, the Court cannot say as a matter of
law that these statements are inadmissible. The matter can be raised again at trial in the context
of the testimony of Mr. Crouch.
As noted above, impeachment of expert witness through contradictory testimony by
another qualified expert is permitted under the Federal Rules of Evidence. TAMKO Bldg.
Products, Inc. v. Factual Mut. Ins. Co., 890 F. Supp. 2d 1129, 1144 (E.D. Mo. 2012). However,
Defendants must ensure not to introduce testimony on rebuttal that the Court has excluded
through this Order.

III.

Conclusion
For the foregoing reasons, Plaintiffs’ Motions to Exclude Defendants’ Expert Michael

White, [Doc. 367], Carl Martin, [Doc. 369], and Fred Crouch, [Doc. 377], are granted in part and
denied in part. Plaintiffs’ Motion to Exclude the Testimony of Alfred Bowles, [Doc. 370], is
denied. Plaintiffs’ Motion to Exclude the Testimony of Audrey Navarro, [Doc. 368] is granted.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 19, 2017
Jefferson City, Missouri

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