RSG et al v. SIDUMP'R TRAILER

Filing 259

MEMORANDUM AND ORDER - Plaintiff/Counterdefendant's Motion in Limine to exclude the testimony of Dr. Ernest Goss 218 is denied. Defendant/Counterclaimant's Motion in Limine 228 is denied without prejudice to reassertion at trial. Ordered by Chief Judge Joseph F. Bataillon. (JAE)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA R S G , Inc., A South Dakota Corporation, R GROUP, Inc., An Iowa Corporation, a n d RANDALL S. GOLDEN, An In d iv id u a l, Plaintiffs/ C o u n te rd e f e n d a n ts , v. S I D U M P 'R TRAILER, Company, Inc., A D e la w a r e Corporation, Defendant/ C o u n t e r c la im a n t . ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 8 :0 6 C V 5 0 7 M E M O R A N D U M AND ORDER T h is matter is before the court on Plaintiff/Counterdefendant's (hereinafter, "Seller") M o tio n in Limine to exclude the testimony of Dr. Ernest Goss, Filing No. 218, and D e f e n d a n t/C o u n te rc la im a n t Sidump'r Trailer Company, Inc.'s (hereinafter, "Buyer") Motion in Limine, Filing No. 228. 1. S e lle r's Motion In the Seller's motion in limine, the Seller seeks the exclusion of the expert testimony o f Ernest Goss, Ph.D., under Fed. R. Evid. 702. The Seller contends that the testimony of t h e expert witness is unreliable and inadmissible under Daubert v. Merrell Dow Pharms., In c ., 509 U.S. 579, 589 (1993). The Seller has engaged Dr. Jerry Sherman to review Dr. G o s s 's opinions and Dr. Sherman criticizes Dr. Goss's methodology and conclusions. See F ilin g No. 219, Index of Evid., Attachments 2 & 3, Reports of Jerome Sherman dated N o v e m b e r 19, 2008, and November 22, 2009. T h e Buyer has shown that Dr. Goss has extensive experience, knowledge, e d u c a tio n , skill and training in the area of economics. He holds a Ph.D. in Economics, and a Master's degree in quantitative methods and accounting. Filing No. 236, Index of Evid., A f f id a vit of Dr. Ernest Goss, ("Goss Aff.") at 1; Ex. B., Curriculum Vitae. Dr. Goss provided c a lc u la t io n s and opinions regarding valuation and damages. Filing No. 219, Goss Expert R e p 't dated August 29, 2008. The Buyer has shown that Dr. Goss's methods are s c ie n t if i c a lly valid and are widely-used for business valuation. Federal Rule of Evidence 702 governs the admissibility of expert testimony and re q u ire s that: "(1) the evidence must be based on scientific, technical or other specialized k n o w le d g e that is useful to the finder of fact in deciding the ultimate issue of fact; (2) the w itn e s s must have sufficient expertise to assist the trier of fact; and (3) the evidence must b e reliable or trustworthy." Kudabeck v. Kroger Co., 338 F.3d 856, 859 (8th Cir. 2003). E x p e rt testimony assists the trier of fact when it provides information beyond the common k n o w le d g e of the trier of fact. Id. at 860. W h e n faced with a proffer of expert testimony, trial judges are charged with the "g a te k e e p in g " responsibility of ensuring that all expert evidence admitted is both relevant a n d reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert, 509 U.S. a t 589 (1993); United States v. Wintermute, 443 F.3d 993, 1000 (8th Cir. 2006). A trial court m u s t be given wide latitude in determining whether an expert's testimony is reliable. See K u m h o Tire, 526 U.S. at 152. This analysis requires that the court make a "preliminary a s s e s s m e n t of whether the reasoning or methodology underlying the testimony is s c ie n tif ic a lly valid and of whether that reasoning or methodology . . . can be [properly] a p p lie d to the facts in issue." Daubert, 509 U.S. at 592-93. The court may consider several 2 f a c to rs in determining the soundness of the scientific methodology including: (1) whether th e theory or technique can be and has been tested; (2) whether the theory or technique h a s been subjected to peer review and publication; (3) the known or potential rate of error a n d the existence and maintenance of standards controlling the technique; and (4) whether th e theory or technique used has been generally accepted in the relevant scientific c o m m u n it y. Id. at 593-594. Courts must focus on the principles and methodology rather t h a n the conclusion they generate. Id. at 595. "Nothing in Rule 702, Daubert, or its progeny requires 'that an expert resolve an u lt im a t e issue of fact to a scientific absolute in order to be admissible.'" Kudabeck, 338 F .3 d at 861 (quoting Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001). Rather, th e proponent of expert testimony bears the burden of providing admissibility beyond a p r e p o n d e r a n c e of the evidence. Lauzon v. Senco Prods., 270 F.3d 681, 686 (8th Cir. 2 0 0 1 ). The expert's assurances that he has utilized generally accepted scientific m e t h o d o lo g y is insufficient to establish admissibility. Daubert v. Merrell-Dow Pharms., Inc., 4 3 F.3d 1311, 1315-16 (9th Cir. 1995) (on remand). The United States Court of Appeals f o r the Eighth Circuit adheres to the rule that when the application of a scientific m e t h o d o lo g y is challenged as unreliable under Daubert and the methodology itself is o t h e r w is e sufficiently reliable, outright exclusion of the evidence is "warranted only if the m e th o d o lo g y `was so altered by a deficient application as to skew the methodology itself.'" U n ite d States v. Gipson, 383 F.3d 689, 697 (8th Cir. 2004) (brackets omitted) (quoting U n ite d States v. Martinez, 3 F.3d 1191, 1198 (8th Cir. 1993)). An expert's opinions are o p e n to any challenge a party desires to mount on cross-examination, the sufficiency of the 3 f a c t u a l basis for a theory is not a reason to exclude the testimony altogether. United States v . Dico, Inc., 266 F.3d 864, 871 (8th Cir. 2001). At this time, it appears that the Seller's Daubert objections go more to the weight th a n to the admissibility of the expert's testimony, subject to a proper showing of foundation a n d reliability. See, e.g., Kudabeck, 338 F.3d at 862-63 (admitting testimony of a c h iro p ra c to r) . The Seller has not shown that the expert cannot offer testimony that would b e helpful to the jury within his field of expertise. "'Vigorous cross-examination, presentation o f contrary evidence, and careful instruction on the burden of proof are the traditional and a p p r o p r ia t e means of attacking shaky but admissible evidence.'" Id. at 862 (quoting D a u b e r t, 509 U.S. at 596). The Buyer's showing establishes that the expert is qualified to te s tif y to the opinions contained in his report and the opinion satisfies Daubert's reliability r e q u ir e m e n t s . The sufficiency of the opinions and the weight to be accorded them are m a t te r s for the jury to determine. The court will properly limit the expert's testimony to m a t te r s that would be helpful to the jury and are within the expert's area of expertise. 2. B u ye r's Motion The Buyer moves for an order in limine prohibiting testimony or evidence "regarding in f o rm a tio n that is subject to attorney-client or work product privilege," specifically any s u g g e s tio n that Jennifer Thompson's employment separation agreement with the Buyer was a n attempt to influence her testimony; as well as the testimony or opinions of designated e x p e rts Don Anderson and Mark Taylor. Filing No. 228, Motion. The Buyer contends that a "clawback" agreement governs the inadvertent disclosure of attorney-client and workp ro d u c t materials. W ith respect to expert reports, the Buyer argues that it was provided o n ly with an expert report by Mark Taylor labeled "draft," without information that the report 4 w a s to be treated as a final expert report, and that the expert report of Don Anderson does n o t comply with the requirements of the Federal Rules. In response, the Seller argues that the motion with respect to attorney-client and w o r k - p ro d u c t materials is vague and indefinite, that the evidence with respect to Jennifer T h o m p s o n may be relevant to matters at issue at trial, including bias, and contends that the e x p e rt report of Mark Taylor was served on the Buyer's prior counsel, on November 17, 2 0 0 8 , and that no objection was made until this motion. The Seller also argues that the e x p e rt report of Don Anderson substantially complies with the rules. See Filing No. 243, In d e x of Evid., Ex. 1, Expert report of Mark Taylor, Ph. D.; Ex. 2, Expert Report of Donald A n d e rs o n . A motion in limine is an important tool available to the trial judge to ensure the e x p e d itio u s and evenhanded management of the trial proceedings and performing a g a t e k e e p in g function and sharpening the focus for later trial proceedings. Jonasson v. L u t h e r a n Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A motion in limine is a p p r o p r ia t e for "evidentiary submissions that clearly ought not be presented to the jury b e c a u s e they clearly would be inadmissable for any purpose." Id. Some evidentiary s u b m is s io n s , however, cannot be evaluated accurately or sufficiently by the trial judge in s u c h a procedural environment. Id. In many instances, it is necessary to defer ruling until t ria l, when the trial judge can better estimate the impact of the evidence on the jury. Id. To th e extent that a party challenges the probative value of the evidence, an attack upon the p ro b a tiv e sufficiency of evidence relates not to admissibility but to the weight of the e v id e n c e and is a matter for the trier of fact to resolve. United States v. Beasley, 102 F.3d 1 4 4 0 , 1451 (8th Cir. 1996). 5 T h e court is unable to evaluate the relevance of the challenged evidence in the c o n te x t of a pretrial motion. The Buyer's concerns may warrant a cautionary or limiting in s tru c tio n , but the court cannot determine the ambit of such an instruction at this time. The c o u rt will admit the evidence at issue only on a showing that it is relevant to the issues in th e case, and only to the extent that the relevance of the evidence outweighs its potential to cause prejudice or confusion under Fed. R. Evid. 403. The court finds the motion can b e adequately resolved at trial, either in a hearing immediately prior to commencement of th e trial, as an objection with a sidebar, or with a review of the evidence outside the p re s e n c e of the jury. Accordingly, the court finds that the Buyer's motion in limine should b e overruled at this time, without prejudice, to its reassertion via timely objection to the a d m is s ib ilit y of such evidence at trial. Accordingly, IT IS ORDERED: 1. P la in t if f / C o u n t e r d e f e n d a n t 's Motion in Limine to exclude the testimony of Dr. E r n e s t Goss (Filing No. 218) is denied. 2. D e f e n d a n t/C o u n te rc la im a n t's Motion in Limine (Filing No. 228) is denied w ith o u t prejudice to reassertion at trial. D A T E D this 31 st day of January, 2010. B Y THE COURT: s / Joseph F. Bataillon Chief United States District Judge 6

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