Singer Oil Company LLC v. Newfield Exploration Mid-Continent Inc et al

Filing 109

ORDER granting in part and denying in part 90 plaintiff's Motion in Limine, or in the Alternative, Daubert Motion (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 10/25/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SINGER OIL COMPANY, LLC,
an Oklahoma Limited Liability Company,
Plaintiff,
vs.
NEWFIELD EXPLORATION
MID-CONTINENT, INC., and
HALLIBURTON ENERGY SERVICES,
INC.,
Defendants.

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Case No. CIV-16-768-M

ORDER
Before the Court is plaintiff’s Motion in Limine, or in the Alternative, Daubert Motion
(“Negligence” Expert Dan Reineke, Petroleum Engineer.), filed October 2, 2017. On October 13,
2017, defendant Newfield Exploration Mid-Continent, Inc. (“Newfield”) filed its response.
Plaintiff has filed no reply.

Based upon the parties’ submissions, the Court makes its

determination.
Dan Reineke is a petroleum engineer who was retained as an expert witness by Newfield.
Plaintiff moves this Court to prohibit Newfield from introducing Mr. Reineke’s expert report
and/or soliciting expert testimony from Mr. Reineke on the issue of negligence. Plaintiff asserts
that it would be improper for Mr. Reineke to testify as to the ultimate issue of whether Newfield
was negligent, to define the law for the jury, or to weigh the evidence in reaching his conclusions.
Newfield acknowledges that Mr. Reineke may not render any opinion on the ultimate issue of
whether or not Newfield was “negligent;” however, Newfield asserts that Mr. Reineke may give
his opinion regarding the standard of care to be used in this case since he is a qualified expert in
oil and gas, as well as his opinion on whether or not Newfield breached that standard of care.

Federal Rule of Evidence 702 governs the admissibility of expert testimony based upon
scientific, technical, or other specialized knowledge. It provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise 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.
Fed. R. Evid. 702.1
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court
held that Rule 702 requires the trial court to “ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. In Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court concluded that “Daubert’s general
holding – setting forth the trial judge’s general ‘gatekeeping’ obligation – applies not only to
testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.”

526 U.S. at 141.

With respect to the all-important reliability

determination, the Supreme Court further concluded that “a trial court may consider one or more
of the more specific factors that Daubert mentioned when doing so will help determine that
testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is ‘flexible,’ and
Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in
every case.” Id. (emphasis in original).

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It does not appear that plaintiff is challenging Mr. Reineke’s qualifications.
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The “Daubert factors” that may be considered in assessing the reliability of proposed expert
testimony are: (1) whether the theory or technique employed by the expert in formulating his expert
opinion can be or has been tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) whether, with respect to a particular technique, there is a high known
or potential rate of error; (4) whether standards control operation of the technique; and (5) whether
the theory or technique is generally accepted within the relevant professional community. Id. at
149-50 (quoting Daubert, 509 U.S. at 592-94). In Kumho Tire, the Court recognized that in some
cases “the relevant reliability concerns may focus upon personal knowledge or experience,” rather
than scientific foundations. Id. at 150. In such cases, the trial court may focus on alternative
factors that are better-suited to the specific type of expertise at issue. Id. at 150-52. “The objective
of [the gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony. It
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 152. “[T]he trial judge [has] considerable leeway
in deciding in a particular case how to go about determining whether particular expert testimony
is reliable.” Id.
Further, when expert testimony is challenged under Daubert, the burden of proof regarding
admissibility rests with the party seeking to present the testimony. Truck Ins. Exch. v. Magnetek,
Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). “The focus [of the inquiry] . . . must be solely on
principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595.
“However, an expert’s conclusions are not immune from scrutiny: A court may conclude that there
is simply too great an analytical gap between the data and the opinion proffered.” Dodge v. Cotter
Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (internal quotations and citation omitted).

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Additionally, “nothing in either Daubert or the Federal Rules of Evidence requires a district court
to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.”
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
The Tenth Circuit has explained the appropriate analysis as follows:
The plaintiff need not prove that the expert is undisputably correct
or that the expert’s theory is “generally accepted” in the scientific
community. Instead, the plaintiff must show that the method
employed by the expert in reaching the conclusion is scientifically
sound and that the opinion is based on facts which sufficiently
satisfy Rule 702’s reliability requirements.
Truck Ins. Exch., 360 F.3d at 1210 (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.
1999)).
The parties agree that Mr. Reineke may not render any opinion at trial on the ultimate issue
of whether or not Newfield was negligent in completing its Edgar Well. Additionally, having
reviewed the parties’ submissions, Mr. Reineke’s expert report, and the deposition testimony
submitted, the Court finds that it does not appear that Mr. Reineke intends to testify regarding the
law applicable to this case. The Court further finds that Mr. Reineke has not improperly weighed
the evidence in this case in reaching his opinions. Finally, the Court finds that Mr. Reineke may
render expert opinions as to the standard of care and whether that standard was breached. See
Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (“Oklahoma law generally
requires expert testimony to establish the standard of care.”); Ho v. Michelin N. Am., Inc., 520 F.
App’x 658, 667 (10th Cir. 2013); Johnson v. Hillcrest Health Ctr., Inc., 70 P.3d 811, 817 (Okla.
2003) (applicable standard of care and deviations therefrom causing injury are ordinarily
established by expert testimony). Specifically, the Court finds that the industry standards in
drilling and completing oil and gas wells, especially as to hydraulic fracturing, are not a subject
which the ordinary lay juror would be able to understand absent expert testimony.
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Accordingly, the Court GRANTS IN PART and DENIES IN PART plaintiff’s Motion in
Limine, or in the Alternative, Daubert Motion (“Negligence” Expert Dan Reineke, Petroleum
Engineer.) [docket no. 90] as follows:
(A)

The Court GRANTS the motion as to any opinion on the ultimate issue of whether
or not Newfield was negligent, and

(B)

The Court DENIES the motion in all other respects.

IT IS SO ORDERED this 25th day of October, 2017.

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