City of Lincoln, Nebraska v. Windstream Nebraska

Filing 142

MEMORANDUM AND ORDER - Defendant's motion in limine to exclude the expert testimony of Garth Ashpaugh (filing 123 ) is denied without prejudice to reassertion at trial. Plaintiff's motion in limine to exclude the expert testimony of Daniel J. Caldwell and Jeffrey L. Pursley (filing 126 ) is denied without prejudice to reassertion at trial. Ordered by Judge Richard G. Kopf. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CITY OF LINCOLN, NEBRASKA,
Plaintiff,
v.
WINDSTREAM NEBRASKA, INC.,
Defendant.

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4:10CV3030

MEMORANDUM
AND ORDER

In a final pretrial conference order (filing 141 at 12), the parties have agreed to
waive a jury trial in this matter. In light of this development, I conclude that the
pending Daubert motions (filings 123, 126) should be denied without prejudice to
reassertion at trial.
The district court’s “gatekeeping function” under Daubert ensures that
expert evidence “submitted to the jury” is sufficiently relevant and
reliable, Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929 (8th
Cir.2001) (emphasis added), but “[t]here is less need for the gatekeeper
to keep the gate when the gatekeeper is keeping the gate only for
himself,” United States v. Brown, 415 F.3d 1257, 1269 (11th Cir.2005).
Similar reasons support less stringent application of Daubert in bench
trials. See Charles Alan Wright, Victor James Gold, 29 Fed. Prac. &
Proc. Evid. § 6266, n. 90.2 (2010), and cases cited. The “usual concerns
of the [Daubert] rule—keeping unreliable expert testimony from the
jury—are not present in such a setting.” Metavante Corp. v. Emigrant
Sav. Bank, 619 F.3d 748, 760 (7th Cir.2010).
In re Zurn Pex Plumbing Products Liability Litigation 644 F.3d 604, 613 (8th Cir.
2011). See also Penske Truck Leasing Co., L.P. v. Rion, LLC, No. 8:07CV294, 2008
WL 4540178, *2 (D.Neb. Oct. 7, 2008) (denying Daubert motion without prejudice
to reassertion at trial where right to trial by jury was waived); S.E.C. v. Guenthner,

395 F.Supp.2d 835, 843 n. 3 (D.Neb. 2005) (discussing Daubert motion in context of
bench trial).
Accordingly,
IT IS ORDERED:
1.

Defendant’s motion in limine to exclude the expert testimony of Garth
Ashpaugh (filing 123) is denied without prejudice to reassertion at trial.

2.

Plaintiff’s motion in limine to exclude the expert testimony of Daniel J.
Caldwell and Jeffrey L. Pursley (filing 126) is denied without prejudice
to reassertion at trial.

August 23, 2011.

BY THE COURT:

Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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