New Hampshire Insurance Company v. Bennett Brothers Yachts, Inc.

Filing 61

ORDER denying 53 Motion in Limine; denying 56 Motion in Limine. Signed by District Judge James C. Dever III on 12/28/2018. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
IN ADMIRALTY
No. 7:16-CV-237-D

NEW HAMPSHIRE INSURANCE
COMPANY, AS SUBROGEE OF
SANCTUARY, LLC
Plaintiff,

v.

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ORDER

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BENNETT BROTHERS YACHTS, INC.
Defendant.

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On September 28, 2018, Bennett Brothers Yachts, Inc. ("Bennett Brothers" or "defendant")
filed a motion in limine to exclude any expert testimony ofMichael Andrews ("Andrews") [D.E. 53]
and filed a memorandum in support [D.E. 54]. On October 16, 2018, New Hampshire Insurance
Company ("NIDC" or "plaintiff') responded in opposition [D.E. 55]. On October 29, 2018, Bennett
Brothers replied [D.E. 58]. On October 17, 2018, Bennett Brothers filed a motion in limine to
exclude the expert report and testimony of Steve Knox ("Knox'') [D.E. 56] and filed a memorandum

in support [D.E. 57]. On November 6, 2018, NIDC responded in opposition [D.E. 59]. On
Nov~mber

12,

2018,~ Bennett

Brothers replied [D.E. 60]. As explained below, the court denies

Bennett Brothers's motions in limine.
As for Bennett Brothers's motion in limine concerning Andrews, Bennett Brothers argues
that NIDC did not disclose an expert report from Andrews in violation of Federal Rule of Civil
Procedure 26(a)(2)(B). See [D.E. 54] 7-12. Bennett Brothers also notes that it did not depose
Andrews because NIDC "revers[ed] course and s[ought] costs of repair as an alternative method of
recovery" after the close of discovery. [D.E. 54] 2.

As part of the required disclosures, "a party must disclose to the other parties the identity of
any [expert] witness." Fed. R. Civ. P. 26(a)(2)(A). "[T]his disclosure must be accompanied by a
written report ... if the witness is one retained or specially employed to provide expert testimony
in the case or one whose duties as the party's employee regularly involve giving expert testimony."
Fed. R. Civ. P. 26(a)(2)(B). If a party's expert witness is not required to prepare a written report, the
party must only disclose ''the subject matter on which the witness is expected to present evidence
under Federal Rule ofEvidence 702, 703, or 705" and "a summary ofthe facts and opinions to which
the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C).
NIUC hired Andrews, a marine surveyor, to survey and evaluate the damage to theyachtM/Y
SANCTUARY (the "Vessel") after Bennett Brothers damaged the Vessel. See, e.g., [D.E. 54] 1-2;
[D.E. 55] 2. NIUC did not retain or employ Andrews to provide expert testimony and did not
employ Andrews in a role that involved regularly giving expert testimony for NIUC. Cf. Fed. R.
Civ. P. 26(a)(2)(B);Adams v. J. Meyers Builders. Inc., 671 F. Supp. 2d262~ 271-72 (D.N.H. 2009).
Accordingly, NIUC had to disclose information consistent with Rule 26(a)(2)(C), not Rule
. 26(a)(2)(B). NIUC has disclosed information concerning Andrews's proposed expert testimony,
including the subject matter about which Andrews will testify and the facts underlying Andrews's
testimony. See [D.E. 55-4] 2-3. Therefore, the court denies Bennett Brothers's motion in limine
concerning Andrews. The court will limit Andrews's testimony to the scope ofNIUC' s disclosures
under Rule 26(a)(2)(C). See Fed. R. Civ. P. 37(c)(l); cf. Milbrath v. NCL Bahamas. Ltd., No. 1:17CV-22071-UU, 2018 WL2036081, at *2 (S.D. Fla. Feb. 28, 2018) (unpublished); St. Paul Mercury
Ins. Co. v. Capitol Sprinkler Inspection. Inc., No. 05-2115 (CKK), 2007 WL 1589495, at *12
(D.D.C. June 1, 2007) (unpublished). To the extent that Bennett Brothers seek to reopen discovery
to depose Andrews, the court denies Bennett Brothers's motion.
2

As for Bennett Brothers's motion in limine concerning Knox, Bennett Brothers argues that
Knox's testimony is not relevant or reliable. Ru1e 702 ofthe Federal Ru1es of Evidence governs the
admissionofexperttestimony. Fed. R. Evid. 702; see Silicon Knights. Inc. v. Epic Games. Inc., No.
5:07-CV-275-D, 2011 WL 6748518, at *5 (E.D.N.C. Dec. 22, 2011) (unpublished). The proponent
of the expert testimony must establish its admissibility by a preponderance of the evidence. See
Cooper v. Smith & Nephew. Inc., 259 F.3d 194, 199 (4th Cir. 2001). A district court has broad
latitude in determining the admissibility of proposed expert testimony. See United States v.
Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994).
Expert testimony is appropriate when it ''will help the trier of fact to understand the evidence
or to determine a fact in issue." Fed. R. Evid. 702. Courts have distilled Ru1e 702's requirements
into two crucial inquiries: whether the proposed expert's testimony is relevant and whether it is
reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert v. Merrell Dow
Pharm.• Inc., 509 U.S. 579, 589 (1993); United States v. Forrest 429 F.3d 73, 80 (4th Cir. 2005);
Silicon Knights. Inc, 2011 WL 6748518, at *5. The trial court must perform the special gatekeeping
obligationofensuringthatexperttestimonymeets both requirements. Kumho Tire, 526 U.S. at 147.
NIITC' s ''theories ofrecovery require determining the Vessel's fair market value immediately
before the damage, the Vessel's fair market value immediately after the damage, and the reasonable
cost of repairs that wou1d restore the Vessel to its pre-collision condition." [D.E. 42] 4. Although
the u1timate measure of damages "is calcu1ated based on the estimated cost of repairs," id.; Order
[D.E. 52] 1, evidence concerning the Vessel's fair market value is relevant for determining the cost
of repairs to restore the Vessel to its pre-collision condition. Accordingly, Knox's expert report,
which concerns diminution of value, is relevant. See [D.E. 57-2]. As for reliability, Bennett

"
Brothers's arguments address the weight and credibility ofKnox's opinion, not the reliability ofhis
3

methodology. Therefore, the court denies Bennett Brothers's motion in limine concerning Knox.

In sum, the court DENIES Bennett Brothers's motions in limine
SO ORDERED. This __2,Bday ofDecember 2018.

4

[D~E.

53;.56].