Meyer et al v. Currie Tech Corp. et al

Filing 135

MEMORANDUM AND ORDER that Currie Tech Corp. and Accell North America, Inc.'s "Daubert Motion in Limine" (Filing No. 108 ) is granted in part and denied in part as set forth in this Memorandum and Order. Ordered by Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARCIE MEYER and MICHAEL
MEYER,
Plaintiffs,

8:16CV542
MEMORANDUM
AND ORDER

v.
CURRIE TECH CORP. and ACCELL
NORTH AMERICA, INC.,
Defendants.

This matter is before the Court on defendants Currie Tech Corp. (“Currie Tech”)
and Accell North America, Inc.’s (“Accell” and collectively, “Currie”) “Daubert Motion
in Limine” (Filing No. 108). Currie seeks to strike and exclude from evidence certain
materials submitted by plaintiffs Marcie Meyer and Michael Meyer’s (“Meyer” and
collectively, the “Meyers”) experts. The Meyers oppose (Filing No. 119) the motion. With
jurisdiction under 28 U.S.C. § 1332(a)(1), the Court grants Currie’s motion in part and
denies it in part. 1
I.

BACKGROUND
In February 2015, Meyer purchased a Currie Electro-Drive Kit 3 electric bike

conversion kit (“kit”) sold by Currie Tech on Amazon. In March, he installed the kit on
his Stumpjumper mountain bike. On March 21, 2015, Meyer was severely injured in a
bike accident. The Meyers blame the accident on the kit.

The Meyers are both Nebraska citizens and allege damages of $1,032,000,
excluding interest and costs. Currie Tech, an Accell subsidiary, is a Delaware corporation
with its principal place of business in Simi Valley, California. Accell is a Delaware
corporation with its principal place of business in Kent, Washington.
1

On November 11, 2016, the Meyers sued Currie in the District Court of Douglas
County, Nebraska, alleging strict liability, negligence, breach of implied warranty of
merchantability, breach of implied warranty of fitness for a particular purpose, and breach
of representation. On December 12, 2016, Currie removed (Filing No. 1) the case to this
Court based on diversity jurisdiction. See 28 U.S.C. § 1332(a).
The Meyers have designated three engineers as expert witnesses: Braden Kappius
(“Kappius”), L. Scott Marshall (“Marshall”), and Eric Van Iderstine (“Van Iderstine”). 2
On May 18, 2018, the Meyers timely produced reports containing opinions from all three
experts. McSwain also produced two reports to rebut the evidence identified by Currie’s
experts. In September 2018, Currie deposed the Meyers’s experts.
Currie moves “to strike and exclude from the evidence in this case any and all
reports, opinions, and deposition testimony offered by” the Meyers’s experts. According
to Currie, those materials should be excluded because they are untimely, see Fed. R. Civ.
P. 26(a)(2) and 37, unreliable, see Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 589-92 (1993), or both. 3 The Court discusses each issue in turn.
II.

DISCUSSION
A.

Timeliness and Disclosure
1.

McSwain’s Supplemental Rebuttal Report

Rule 26(a)(2)(B) requires an expert witness to provide a written report that contains,
among other things, “a complete statement of all opinions the witness will express and the
basis and reasons for them” and “the facts or data considered by the witness in forming

Marshall and Van Iderstine both work for McSwain Engineering, Inc. and issued a
joint report. The Court adopts the parties’ practice of referring to them jointly as
“McSwain.”
2

Currie states it does not challenge the qualifications of the Meyers’s experts.

3

2

them.” As noted, the Meyers provided expert reports from McSwain and Kappius on
May 18, 2018. Currie disclosed its expert reports on July 2, 2018.
Under Rule 26(a)(2)(D)(ii), a party may present evidence “intended solely to
contradict or rebut evidence on the same subject matter identified by another party under
Rule 26(a)(2)(B) or (C).” But, “[a]bsent a stipulation or a court order,” neither of which is
present here, they must do so “within 30 days after the other party’s disclosure.” Id.
In this case, McSwain issued a Rebuttal Report (“Rebuttal Report”) on July 25,
2018.

Several weeks later, Van Iderstine provided a supplement to his rebuttal

(“Supplemental Rebuttal Report”) in a letter dated September 13, 2017. In that report, Van
Iderstine states, “An exemplary Mongoose Switchback bicycle was examined and
measured to demonstrate the characteristics required for assembly of the exemplar Currie
Tech Kit 3 front wheel and nuts, as shown in Enclosures 1 and 2.” After giving some
detailed measurements, Van Iderstine opines,
The fact that the absolute size of the exemplar Mongoose fork-end exceeded
the Currie Tech dimension, yet did not have the clearance for the nut,
reinforces my opinion that the Currie Tech Installation Guide designated a
25mm footprint for the nut and was prompting the reader/installer to ensure
that there was proper clearance for the nut.
Van Iderstine explains that the Supplemental Rebuttal Report “includes additional findings
and observations that were reached to a reasonable degree of engineering certainty” and
that his conclusions in his initial report did not change.
Noting that Van Iderstine’s additional opinions came long after the thirty-day
deadline, Currie seeks to strike and exclude the Supplemental Rebuttal Report as an
untimely disclosure under Rule 37(c)(1). See Trost v. Trek Bicycle Corp., 162 F.3d 1004,
1008 (8th Cir. 1998) (“[F]ailure to disclose in a timely manner is equivalent to failure to
disclose.”). Rule 37(c)(1) authorizes the Court to sanction a party for failing to provide
information or identify a witness as required by Rule 26(a), including by not allowing the
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party “to use that information or witness to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially justified or is harmless.” “When fashioning a
remedy, the district court should consider, inter alia, the reason for noncompliance, the
surprise and prejudice to the opposing party, the extent to which allowing the information
or testimony would disrupt the order and efficiency of the trial, and the importance of the
information or testimony.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). “[T]he
exclusion of evidence is a harsh penalty and should be used sparingly.” Id. (quoting ELCA
Enters. v. Sisco Equip. Rental & Sales, 53 F.3d 186, 190 (8th Cir. 1995)).
Currie argues exclusion is appropriate in this case because Van Iderstine’s late
disclosure came shortly after the Meyers told the Court their expert disclosures were
complete and opposed Currie’s Motion to Extend Deadlines and Continue the Trial (Filing
No. 71) because trial had already been delayed multiple times. 4 Currie reports that the
Court’s October 15, 2018, deposition deadline prevented Currie from rescheduling the
McSwain engineers’ September 21, 2017, depositions to allow sufficient time to review
the new information. According to Currie, excluding the Supplemental Rebuttal Report is
proper “because a continuance to allow a fair review, evaluation, and cross examination
regarding these opinions would require postponement of an already much-delayed trial.”
In their brief response to this issue, the Meyers do not challenge Currie’s timeline
or otherwise dispute that the Supplemental Rebuttal Report was untimely. They also do
not give any reason for their noncompliance or explain the importance of Van Iderstine’s
additional opinion. Instead, they simply argue “the report adds no new information that
prejudices” Currie because it “confirms” and “reinforces” Van Iderstine’s previous
opinion.
That argument cuts both ways.

An untimely opinion that “confirms” and

“reinforces” a timely opinion may not cause great prejudice, but it is also not so important
Currie’s motion to extend was granted and trial was continued again.

4

4

as to provide a compelling basis for excusing the very late disclosure and resulting
prejudice. See id. While the delay in disclosing Van Iderstine’s additional testing and onepage report may not have caused Currie substantial harm, the Court is unable to say it is
harmless under the circumstances of this case. “In determining whether a severe sanction
is justified, the district court may consider the resulting prejudice to the other party, any
prejudice to the judicial system, and the need to deter similar misconduct in the future.”
Bonds v. Dist. of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996).
The Meyers have not given any justification for their untimely disclosure. In the
Supplemental Rebuttal Report, Van Iderstine explained, “Due to time constraints of
[him]self and laboratory personnel, this information was not available to be included in the
[rebuttal] report.” That explanation is neither sufficient to justify a delay of almost six
weeks nor to deflect the need to deter similar delayed disclosures in the future.
In short, the Meyers’s “failure to disclose [Van Iderstine’s] supplemental testimony
in a timely manner was neither substantially justified nor harmless, a continuance would
have postponed a much-delayed trial, and the testimony was offered to prove a point upon
which” other evidence may be “presented to the jury.” Wegener, 527 F.3d at 692. The
Supplemental Rebuttal Report is excluded.
2.

Methodologies and Opinions First Disclosed at Depositions

Currie next argues McSwain’s Engineering Investigation Report (“McSwain
Report”) and Rebuttal Report should be excluded because McSwain did not “disclose that
they were utilizing the ‘scientific method’ or procedures set forth in the ASTM or NFPA
as the methodology they relied upon in rendering their opinions for this case.” 5 According
to Currie, defense counsel were limited in their ability to prepare to depose Marshall and

ASTM International (“ASTM”), formerly known as the American Society for
Testing and Materials, issues standard practices for examining items involved in litigation
(Filing No. 126-2). The National Fire Protection Association (“NFPA”) likewise publishes
a basic investigation methodology (Filing No. 110-15).
5

5

Van Iderstine because they did not have those standards available during crossexamination. See, e.g., Werth v. Hill-Rom, Inc., 856 F. Supp. 2d 1051, 1060 (D. Minn.
2012) (“The requirement to provide a report containing all bases for an expert’s opinion is
intended to permit opposing counsel to effectively prepare to depose the expert in advance
of trial.”). Currie likewise seeks to exclude Kappius’s reports and opinions because he did
not identify the methodology he used to render his opinions.
Alternatively, Currie asks “that the Court exclude the three opinions that McSwain
divulged for the first time during their September 21, 2018 depositions: (1) the ‘accident
sequence’, (2) the definition of ‘manufacture’, and (3) opinions concerning Meyer’s
mechanical abilities/aptitude.” Currie also asks the Court to exclude “Kappius’s opinion
that a step in the axel [sic] was a mechanical defect that led to a loss of clamp force on the
axel [sic].” According to Currie, Kappius gave that opinion for the first time at his
deposition.
The Meyers counter that “their experts disclosed their opinions and the basis of their
opinions in a timely fashion.” Pointing to the parties’ agreed inspection protocol and Van
Iderstine’s curriculum vitae, the Meyers argue their “experts used agreed upon methods”
and adequately explained the standards used in their analyses. Assuming for the sake of
argument that their disclosures were untimely, the Meyers again argue exclusion is
unwarranted because Currie was not prejudiced by any “unfair surprise,” as evidenced by
Currie’s extensive depositions of the Meyers’s experts. As the Meyers see it, Currie’s
“discovery depositions of all experts afforded counsel [sic] to cross examine each expert
about their opinions.”
The Meyers’s arguments largely miss the point. The Court agrees with Currie that
the agreed inspection protocol in this case—which did not mention the ASTM or NFPA
standards now at issue—did not relieve the Meyers’s experts of their duty to timely disclose
their methodology and fully explain the basis and reasons for their opinions. And Currie

6

aptly notes it could not as effectively depose the Meyers’s experts without prior notice of
their methodology. See, e.g., Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir.
2008) (concluding a deficient expert report was not harmless because the deficiencies
forced the other party to depose the expert “with little or no understanding as to what he
would testify”). Not only was defense counsel unable to use the standards in crossexamination, they also did not have the benefit of reviewing those materials with Currie’s
experts in preparation for the depositions. The explanatory details provided in the expert
affidavits the Meyers attached to their opposition brief only serve to illustrate the
deficiencies in their initial disclosures. See id.
That said, the Court finds that the deficiencies Currie has identified do not warrant
the “harsh penalty” of absolutely excluding all of McSwain’s and Kappius’s reports and
opinions as Currie requests. Wegener, 527 F.3d at 692 (noting that a court should consider
lesser sanctions “where exclusion of evidence was tantamount to dismissal of claims”).
Though not harmless or substantially justified, the deficiencies in this case in disclosing
McSwain’s and Kappius’s methodologies are far from a complete failure to disclose an
expert witness or their opinions that might warrant wholesale exclusion at this stage. 6 See
Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 703 (8th Cir. 2018).
Currie’s alternative request for more-targeted exclusions fares better.

Taking

Kappius’s opinion that a step in the axle was a mechanical defect first, the Meyers do not
dispute that Kappius did not include such an opinion in his report. That opinion, which
was first disclosed at his deposition, is excluded. “Rule 26(a)(2) does not allow parties to
cure deficient expert reports by supplementing them with later deposition testimony.”
Ciomber, 527 F.3d at 642.

Ostensibly recognizing the severity of its requested sanction, Currie, without
elaborating, states it understands “that a continuance to cure this prejudice is not available.”
Currie does not explain why it could not seek a lesser sanction, like an expedited
supplementary deposition at the Meyers’s expense. But because Currie has not asked for
a lesser sanction (beyond its alternative argument), the Court will not impose one.
6

7

The same is true for Van Iderstine’s deposition testimony regarding his broad
definition of the term “manufacture” and any purported opinion Marshall might have
regarding Meyer’s proficiency as a bicycle mechanic. The Meyers make no argument for
the former and say very little about the latter. As Currie points out, the Meyers rely on
post-deposition affidavits from their experts to do the heavy lifting in their opposition brief
(Filing No. 119).

In his affidavit (Filing No. 125), Marshall disputes Currie’s

characterization of his testimony and denies opining Meyer was a proficient mechanic.
Instead, Marshall states he was aware from case documents of Meyer’s past work as a
mechanic and that he “saw nothing in the physical evidence that would indicate that
[Meyer] was not capable of properly installing the subject conversion kit or that he
contributed to cause the subject incident.” Van Iderstine similarly states in his affidavit
(Filing No. 126) that he considered Meyer’s bike-shop experience in forming his opinions.
In arguing McSwain’s opinions are admissible, the Meyers rely heavily on those
affidavits to show that McSwain “considered and ruled out other possible causes” of the
accident. For example, the Meyers emphasize McSwain’s conclusions that “[t]he evidence
did not support a conclusion that” (1) “the brake pads were improperly aligned before the
accident,” (2) Meyer inadequately tightened the axle nut, and (3) “Meyer improperly
installed Currie’s kit with respect to removing metal from the bicycle’s dropout or he
lacked experience as a bicycle mechanic to complete the task.” But neither the Meyers nor
McSwain show where McSwain gave any pre-deposition opinion about Meyer’s
experience or expertise as a bike mechanic. Accordingly, Currie’s motion to exclude
opinions from McSwain “concerning Meyer’s mechanical abilities/aptitude” is granted.
The Court reaches a different conclusion with respect to Currie’s challenge to Van
Iderstine’s deposition testimony about the “accident sequence.” The Court finds Van
Iderstine’s testimony was reasonably within the scope of the opinions disclosed in his
report. Currie’s request to categorically exclude Van Iderstine’s opinion about the
“accident sequence” is denied. If Currie thinks Van Iderstine’s trial testimony on that topic
8

wanders too far from his report at trial, it remains free to make an appropriate objection at
the time.
B.

Admissibility

Currie next argues the Court should exclude Kappius’s and McSwain’s opinions
under Daubert and Federal Rule of Civil Procedure 702 because the Meyers have not
proven they are admissible. See Daubert, 509 U.S. at 589 (explaining the party offering
expert testimony must prove its admissibility by a preponderance of the evidence). Under
Daubert and Rule 702, the Court serves as a gatekeeper, “ensur[ing] that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509
U.S. at 589. At the same time, the Court must not “invade the province of the jury, whose
job it is to decide issues of credibility and to determine the weight that should be accorded
evidence.” United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003).
Rule 702 “is one of admissibility rather than exclusion.” Lauzon v. Senco Prod.,
Inc., 270 F.3d 681, 686 (8th Cir. 2001) (quoting Arcoren v. United States, 929 F.2d 1235,
1239 (8th Cir. 1991)). Under Rule 702, the opinion of an expert qualified by “knowledge,
skill, experience, training, or education” is admissible if
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
In evaluating whether a witness’s reasoning and methodology are scientifically
valid, “the court should consider, among other factors (1) whether the theory or technique
‘can be (and has been) tested’; (2) ‘whether the theory or technique has been subjected to
peer review and publication’; (3) ‘the known or potential rate of error’; and (4) whether the
9

theory has been generally accepted.” Peitzmeier v. Hennessy Indus., Inc., 97 F.3d 293, 297
(8th Cir. 1996) (quoting Daubert, 509 U.S. at 593, 594). But those factors are not exclusive
and may not apply in every case. See Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th
Cir. 2007).
The Daubert inquiry is flexible and case specific. Am. Auto. Ins. Co. v. Omega Flex,
Inc., 783 F.3d 720, 723 (8th Cir. 2015). Its objective “is to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in
the relevant field.” Id. at 722-23 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999)). “Courts should resolve doubts regarding the usefulness of an expert’s
testimony in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748,
758 (8th Cir. 2006). “Any weaknesses in the factual underpinnings of [an expert’s] opinion
go to the weight and credibility of his testimony, not to its admissibility.” Hurst v. United
States, 882 F.2d 306, 311 (8th Cir. 1989). “An expert’s opinion should be excluded only
if that ‘opinion is so fundamentally unsupported that it can offer no assistance to the jury.’”
Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007) (quoting Bonner v. ISP Techs.,
Inc., 259 F.3d 924, 929-30 (8th Cir. 2001)).
1.

Kappius’s Opinions

Currie contends “Kappius’s opinions should be excluded under Daubert as he failed
to utilize a reliable methodology.”

More specifically, Currie faults Kappius for

(1) rendering “opinions on a broad range of topics” based on “a visual inspection of a failed
bike” and photographs like “the expert in Kuhmo Tire”; (2) “not employing the same level
of intellectual rigor” to his opinions that he applies in “his practice as an expert in bikes
and engineering”; (3) failing to review manufacturing specifications and to conduct
mechanical or stress testing; (4) cherry picking evidence; (5) ignoring “his own practices
in manufacturing and selling after-market products for bicycles”; (6) relying on his cycling
experience rather than testing and engineering design; (7) failing to rule out other possible
10

causes of the loss of clamp force; and (8) opining “that front wheel electric bike conversion
kits are inherently dangerous” based solely upon his own limited experience with them.
Currie’s criticisms of Kappius’s methods are not entirely without merit. But having
applied the relevant Rule 702 and Daubert factors to the facts of this case, the Court finds—
with just one exception discussed below—that Kappius’s methods are not so unreliable as
to require the absolute exclusion of all his remaining opinions. See, e.g., Miles v. Gen.
Motors Corp., 262 F.3d 720, 724-25 (8th Cir. 2001) (concluding a similar challenge to an
expert’s “knowledge and methodology goes to the weight that the jury accords the
testimony rather than to its admissibility”).
Currie takes exception to Kappius’s reliance on his visual inspection of the bike, but
even a cursory review of his report reveals that he relied on far more than that, including
testing, measurements, photographs, video, and material gathered and produced by
McSwain Engineering. The Court agrees with the Meyers that Kappius did not have to
duplicate McSwain’s work and could reasonably rely on such materials under the
circumstances in this case. See id. (concluding an expert’s failure to investigate the way
the opposing party found most suitable did “not render [the expert’s] methodology fallible”
or require the “absolute exclusion” of the challenged testimony).

“Vigorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596.
As noted above, one of Kappius’s challenged opinions does cross the line from
shaky to inadmissible.

Kappius opines that “[f]ront wheel electric bicycle kits are

inherently dangerous.” When deposed about the basis for that opinion, Kappius stated it
is based upon his experience riding them, “it’s not related to . . . the testing of them by any
means, it’s the feel of the bike . . . and the handling of the bike, and that’s how I came to
those conclusions.” Kappius admitted he had only ridden one or two front-wheel electric

11

bikes in his life and did not document those experiences or the characteristics of the
equipment he used. Kappius further admitted he did not do any research with respect to
the market or accident history for front-wheel electric bikes or conversion kits and was
“[n]ot sure of any way to . . . test the accuracy of [his] opinion.” When pressed at his
deposition, Kappius conceded “a front wheel motor kit can be done safely if certain
considerations . . . are taken . . . into account, but in general, it is less safe.” Kappius could
not think of “a way to quantify how much less safe it is.”
Whether viewed in terms of Kappius’s admitted lack of specialized knowledge of
and experience with front-wheel electric bike kits or the absence of sufficient facts and
sound methods to support his conclusion, Kappius’s unsupported opinion that “[f]ront
wheel electric bicycle kits are inherently dangerous” is inadmissible under Rule 702. See
Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir. 1998) (concluding an expert opinion
was not sufficiently reliable under Daubert where the witness lacked relevant knowledge
and expertise and his opinion “was not supported by the kind of scientific theory, practical
knowledge and experience, or empirical research and testing that permit 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’”
(quoting Daubert, 509 U.S. at 592-93)); accord First Union Nat’l Bank v. Benham, 423
F.3d 855, 862 (8th Cir. 2005) (deciding exclusion is proper when a proffered expert lacks
specialized training or knowledge or “personal experience in the area of testimony”).
2.

McSwain’s Opinions

Currie concedes “McSwain identified an accepted methodology, the scientific
method prescribed by NFPA,” but contends they “did not reliably apply that methodology
to opine as to the cause of a bike accident.” Currie argues McSwain failed to consider
important empirical evidence, leaving a “large analytical gap” between the alleged defects
in the kit and the “alleged bike accident and the injuries Meyer sustained.” As Currie sees

12

it, McSwain should have done more calculations, testing, and modeling to evaluate their
theory of how the accident happened and rule out other feasible hypotheses.
The Court again finds that Currie’s criticisms go more to the weight and credibility
of McSwain’s remaining opinions than to their admissibility. Except as noted above,
McSwain’s opinions are “sufficiently reliable and relevant to assist the jury’s determination
of a disputed issue” in this case. Bonner, 259 F.3d at 929. If this case goes to trial, it will
be up to Currie “to examine the factual basis for [McSwain’s] opinion[s] in crossexamination.” Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988). Currie’s
motion to exclude those opinions is denied.
3.

“Legal Conclusions”

“[E]xpert testimony on legal matters is not admissible.” See S. Pine Helicopters,
Inc. v. Phx. Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003); see also Cowden
v. BNSF Ry. Co., 980 F. Supp. 2d 1106, 1118 (E.D. Mo. 2013) (“[A]lthough expert
witnesses may ‘embrace’ an ultimate issue in their testimony, they may not state legal
standards or draw legal conclusions by applying law to the facts.”). In paragraph 42 of its
Statement of Undisputed Facts, Currie states, “McSwain provides opinions that amount to
legal conclusions,” including that a “non-uniform machined surface on the axel [sic] was
a manufacturing defect” and that the “Kit 3 was defective and unreasonably dangerous” as
manufactured, marketed, and sold.
In response, the Meyers, citing Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th
Cir. 1995), acknowledge that “[e]xpert testimony that is not fact-based, but solely relies on
a legal conclusion is inadmissible.” But they argue the challenged opinions are not
impermissible legal opinions because they are based on the facts and McSwain’s “training
and experience specific to manufacturing defects.”
The Meyers’s criticism of Currie’s characterization of McSwain’s opinions as
impermissible “legal conclusions” may be well-taken. See Am. Auto. Ins., 783 F.3d at 725
13

(explaining expert testimony “that squarely addresses the ultimate issue of whether” a
product was unreasonably dangerous is generally permissible under Federal Rule of
Evidence 740(a)”); Rahmig v. Mosley Mach. Co., 412 N.W.2d 56, 69 (Neb. 1987)
(“Whether a product is in a defective condition unreasonably dangerous to its user is,
generally, a question of fact.”). But the Court need not reach that issue at this time.
Currie does not make any argument regarding McSwain’s purported “legal
conclusions” in its brief or provide any supporting authority for the Court to rule on the
issue before trial. To the extent Currie sought to exclude those opinions on that basis, it
has waived the issue at this point. NECivR 7.1(a)(1)(A) (“A party’s failure to brief an issue
raised in a motion may be considered a waiver.”); accord Milligan v. City of Red Oak, 230
F.3d 355, 360 (8th Cir. 2000) (declining to consider an issue a party had waived by failing
to support “his assertion with any argument or legal authority”).
Based on the foregoing, Currie’s “Daubert Motion in Limine” (Filing No. 108) is
granted in part and denied in part as set forth above.
IT IS SO ORDERED.
Dated this 19th day of December 2018.
BY THE COURT:

Robert F. Rossiter, Jr.
United States District Judge

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