Gilliland et al v. Harley-Davidson Motor Company Group, LLC

Filing 170

MEMORANDUM AND ORDER that the Court on the Plaintiffs' Motion for Evidentiary Hearing (Filing No. 169 ) is granted in part, in accordance with this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRENCE N. GILLILAND, DENISE M.
GILLILAND, AND LUIS S. GALLEGOS,
8:12CV384
Plaintiffs,
vs.

MEMORANDUM AND ORDER

HARLEY-DAVIDSON MOTOR COMPANY
GROUP, LLC,
Defendant.

This matter is before the Court on the Plaintiffs’ Motion for Evidentiary Hearing
(Filing No. 169). The Plaintiffs request an evidentiary hearing pursuant to the Court’s
previous Memorandum and Order dated April 29, 2015 (the “Order in Limine”) (Filing
No. 166), and specifically request that the hearing take place prior to jury selection. The
Defendant did not respond to the Motion. For the reasons stated, the Motion will be
granted in part.
PROCEDURAL BACKGROUND
Relevant to this Motion, the Court’s Order in Limine granted the Defendant’s
request to exclude evidence of the Defendant’s contacts with customers and evidence
of certain warranty claims submitted to the Defendant.

The Order in Limine also

granted the Defendant’s request to exclude evidence of the Defendant’s Service
Bulletins M-1214, M1215A, and M-1215B (the “Service Bulletins”).
DISCUSSION
The Order in Limine concluded that Plaintiffs had not demonstrated that the
evidence at issue was admissible. Specifically, the Plaintiffs had not shown that, based
upon the evidence before the Court, the customer contacts, warranty claims, and

Service Bulletins addressed incidents substantially similar to the incident at issue in this
case. Recognizing that evidence adduced at trial may demonstrate that the incidents
were substantially similar, the Court stated that it would permit Plaintiffs to request a
hearing outside the presence of the jury to determine the admissibility of this evidence.
The Plaintiffs have not specified a time for the hearing other than to request that it be
held prior to jury selection. Plaintiffs argue they cannot prepare their case-in-chief
absent a final ruling on the admissibility of such evidence.
The arguments Plaintiffs advance in support of their request for a hearing were
already before the Court when it granted Defendant’s motions in limine. Thus, the Court
need not convene a hearing merely to reconsider arguments upon which it has already
ruled. The Order in Limine specified that the admissibility of the customer contacts,
warranty claims, and Service Bulletins may depend on whether the evidence at trial
shows the incidents involved were substantially similar. Thus, a hearing well in advance
of trial would not be an efficient use of judicial resources. Plaintiffs may address the
issue at the parties’ conference before trial and, if necessary, the Court can address the
matter outside the presence of the jury after evidence of similar incidents has been
presented.
Plaintiffs now argue that a final ruling on the admissibility of customer contacts,
warranty claims, and the Service Bulletins is essential to the Plaintiffs’ presentation of
expert testimony.

However, nothing in the Court’s Order in Limine prevents the

Plaintiffs’ experts from relying upon inadmissible evidence to formulate their opinions,
so long as the facts and data are of a type reasonably relied upon by experts in their
field. See United States v. Carter, 270 F.3d 731, 735 (8th Cir. 2001) (“Rule 703 of the
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Federal Rules of Evidence permits experts to rely upon inadmissible facts or data in
forming opinions or inferences, if of a type reasonably relied upon by experts in a
particular field.”). The Eighth Circuit has stated:
As a rule, questions regarding the factual underpinnings of the expert's
opinion affect the weight and credibility of her testimony, not its
admissibility. [South Central Petroleum, Inc. v. Long Bros. Oil Co., 974
F.2d 1015, 1019 (8th Cir. 1992)]. We have said that “[o]nce expert
testimony has been admitted, the rules of evidence then place the full
burden of exploration of facts and assumptions underlying the testimony of
an expert witness squarely on the shoulders of opposing counsel's crossexamination.” Brennan v. Reinhart Inst'l Foods, 211 F.3d 449, 451 (8th
Cir. 2000) (internal quotation omitted).
Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987, 997-98 (8th Cir. 2008). “If
a factfinder doubts [an expert's] assumptions, then the factfinder will discount his
ultimate conclusions or rely on his alternate calculations which account for different
[factual assumptions].” In re Zurn Pex Plumbing Prods. Liability Litig., 644 F.3d 604, 615
(8th Cir. 2011).
Based upon these authorities, the Plaintiffs’ presentation of expert testimony will
not depend on the independent admissibility of the evidence at issue. Further, the
expert reports Plaintiffs submitted did not appear to rely wholly on the evidence in
question. For example, Plaintiffs’ expert James Weaver testified that he formulated his
opinion before seeing the Service Bulletins and the Service Bulletins merely
corroborated his opinion. (Filing No. 159-1, Weaver Dep. 13:2-9.) Thus, the Plaintiffs
need not wait for the Court’s final ruling on this evidence to prepare their presentation of
expert testimony and the Plaintiffs will not be unfairly prejudiced by waiting until trial for
a hearing on the admissibility of the evidence.
Accordingly,
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IT IS ORDERED: The Court on the Plaintiffs’ Motion for Evidentiary Hearing
(Filing No. 169) is granted in part, in accordance with this Memorandum and Order.
Dated this 28th day of October, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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