In Re: Katrina Canal Breaches Litigation, No. 2:2005cv04182 - Document 19554 (E.D. La. 2010)
Court Description: BARGE: ORDER denying 19432 Motion to Exclude Wm. Jason Weiss; denying 19437 Motion to Exclude Expert Testimony by Hector Pazos; denying 19441 Motion to Exclude Gennaro Marino; granting insofar as testimony concerning his opinion concerning the movement of the barge is STRICKEN and denying in all other respects 19442 Motion in Limine to Exclude Testimony of Austin Dooley; denying 19444 Motion in Limine to Exclude Expert Testimony by Melvin Spinks; denying except as to the reference note d in document concerning whether Mr. Villavaso's testimony is plausible as to which the motion is granted 19445 Motion in Limine to Exclude Expert Testimony by Robert Bartlett; denying except as to Opinions 5.6 and 5.7 at page 8 of the Report which are opinions of law which are in the province of the Court, and granting with respect to Opinions 5.6 and 5.7. In addition, Mr. Green will be able to testifyas to all other opinions including, but not limited to Opinion 5.3 and 5.8. 19446 Mot ion to Strike Portions of Expert Report of Don Green; denying 19448 Motion to Strike Testimony of Daniel Ryan; denying 19449 Motion to Exclude Testimony of D. Phillip Skaer, II; denying 19450 Motion to Exclude Testimony of Robert Bea; denying as except with respect to the attachedexpert report of Mr. Dagget about which the motion is granted 19462 Motion to Exclude Testimony of Charles Cushing. Signed by Judge Stanwood R. Duval, Jr on 1/6/2010. (Reference: BARGE)(blg)
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In Re: Katrina Canal Breaches Litigation Doc. 19554 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA IN RE KATRINA CANAL BREACHES CONSOLIDATED LITIGATION NO. 05-4182 CIVIL ACTION PERTAINS TO: BARGE SECTION "K"(2) ORDER Before the Court are the following motions: Barge Plaintiffs’ Motion to Exclude Wm. Jason Weiss, (Doc. 19432) Lafarge Motion to Exclude Expert Testimony by Hector Pazos (Doc. 19437) Lafarge Motion to Exclude Gennaro Marino (Doc. 19441) Barge Plaintiffs’ Motion in Limine to Exclude Testimony of Austin Dooley (Doc.19442) Lafarge Motion in Limine to Exclude Expert Testimony by Melvin Spinks (Doc. 19444) Lafarge Motion in Limine to Exclude Expert Testimony by Robert Bartlett (Doc. 19445) Lafarge Motion to Strike Portions of Expert Report of Don Green (Doc. 19446) Daubert Motion to Strike Testimony of Daniel Ryan (Doc. 19448) Barge Plaintiffs’ Motion to Exclude Testimony of D. Phillip Skaer, II (Doc. 19449) Barge Plaintiffs’ Motion to Exclude Testimony of Robert Bea (Doc. 19450) Barge Plaintiffs’ Motion to Exclude Testimony of Charles Cushing (Doc.19462) As previously noted, these “Daubert” motions for the most part, appear to be an outrageous expenditure of time, effort and expense, in the context of a non-jury, judge-tried case such as this one. The vast majority of these motions were based on attacks concerning the underlying facts upon which each opinion was based. That approach is not contemplated under a Daubert challenge. “[T]he reliability of data underlying an expert’s opinion goes to the weight of this evidence, but should not serve as a basis for its exclusion. See Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 392-93 (5th Cir. 2002).” General Electric Capital Business Asset funding Corp. v. S.A.S.E. Military Ltd., 2004 WL 5495590, *4 (W.D. Tex. Oct. 21, 2004). As further discussed in General Electric Capital Business: Courts should not [be] lured by arguments disguised as Daubert challenges that actually attack the weight of the expert testimony, not its admissibility. “As a Dockets.Justia.com general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility , and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Hartley, 310 F.3d at 1061 (quoting Bonner v. ISP Tech., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001) (internal citations and quotations omitted). Therefore, challenges to the factual bases or underpinnings of an expert opinion usually go only to weight and credibility of the evidence, not admissibility. Moss v. Ole South Real Estate, Inc., 993 F.2d 1300, 1307 (5th Cri. 1991); Matador Drilling Co. v. Post, 662 F.2d 1190, 1199 (5th Cir. 1981). Id. at *5. As Judge Barbier noted in Thompson v. Rowan Companies, Inc., 2007 WL 724646 (E.D.La. March 6, 2007): . . . that purpose of [a] Daubert motion is “to ensure that only reliable and relevant expert testimony is presented to the jury.” Rushing v. Kansas city Southern Ry. Co., 185 F.3d 496, 506 (5th Cir. 1999) (superseded by rule on other grounds), citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-93, 1113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). Thus, “[m]ost of the safeguards provided for in Daubert are not as essential in a case such as this where the a district judge sits as the trier of fact in place of a jury.” Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).” Daubert requires a binary choiceadmit or exclude- and a judge in a bench trial should have discretion to admit questionable technical evidence, though of course he must not give it more weight than it deserves.” SmithKline Beecham Corp. v. Apotex Corps., 247 F. Supp. 2d 1011, 1042 (N.D. Ill. 2003). Thompson, at *1. The case at bar is a bench trial. (See Doc. 19112). Thus, the objectives of Daubert are no longer implicated. Furthermore, “‘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.” Deville v. Comar marine Corp., 2009 WL 1870896 (E.D.La. June 25, 2009). Based on the foregoing, the Court will now rule on the subject motions. 2 Barge Plaintiffs’ Motion to Exclude Wm. Jason Weiss, (Doc. 19432) IT IS ORDERED that the motion is DENIED. Lafarge Motion to Exclude Expert Testimony by Hector Pazos (Doc. 19437) IT IS ORDERED that the motion is DENIED. Lafarge Motion to Exclude Gennaro Marino (Doc. 19441) IT IS ORDERED that the motion is DENIED. Barge Plaintiffs’ Motion in Limine to Exclude Testimony of Austin Dooley (Doc. 19442) Insofar as plaintiffs seek to strike the opinion of Dr. Dooley as concerns the movement of the barge, specifically such statements as: (1) “For the barge to move from the western side toward the northeast, a force would be necessary to move it in that direction.” (Dooley Report at 31.) and (2) “This would then keep the barge on the western side of the IHNC with a tendency to move toward the southwest.” (Dooley Report at 31.), the Court finds that these opinions should be stricken as Dr. Dooley has not been tendered as an expert in the movement of a barge and such opinions have nothing to do with his expertise as a meteorologist. Furthermore, such opinions are not actually helpful to the trier of fact, although clearly the Court takes cognizance that some force is necessary to make a barge move. However, this expert shall be allowed to testify fully as to wind direction and velocity as to any relevant time period at issue in this case. Accordingly, 3 IT IS ORDERED that the motion is GRANTED insofar as testimony concerning his opinion concerning the movement of the barge is STRICKEN and DENIED in all other respects. Lafarge Motion in Limine to Exclude Expert Testimony by Melvin Spinks (Doc. 19444) IT IS ORDERED that the motion is DENIED. Lafarge Motion in Limine to Exclude Expert Testimony by Robert Bartlett (Doc. 19445) Mr. Bartlett has been tendered as an expert metallurgist. As such, for the most part, the motion has no basis. However, as to the last opinion at p. 8 of his report which states, “[t]he evidence demonstrating that the ING 4727 created a breach at the south end of the IHNC east floodwall confirms the plausibility of the testimony by Mr. Villavaso that he observed a barge create the initial damage to the north breach of the IHNC east floodwall,” this opinion does not aid the trier of fact as the Court can make the appropriate inferences as to whether the testimony of Mr. Villavaso is credible. Accordingly, IT IS ORDERED that the motion is DENIED except as to the reference noted above concerning whether Mr. Villavaso’s testimony is plausible as to which the motion is GRANTED. Lafarge Motion to Strike Portions of Expert Report of Don Green (Doc. 19446) IT IS ORDERED that the motion is DENIED except as to Opinions 5.6 and 5.7 at page 8 of the Report which are opinions of law which are in the province of the Court. The motion is 4 GRANTED with respect to Opinions 5.6 and 5.7. In addition, Mr. Green will be able to testify as to all other opinions including, but not limited to Opinion 5.3 and 5.8. Daubert Motion to Strike Testimony of Daniel Ryan (Doc. 19448) IT IS ORDERED that the motion is DENIED. Barge Plaintiffs’ Motion to Exclude Testimony of D. Phillip Skaer, II (Doc. 19449) IT IS ORDERED that the motion is DENIED. Barge Plaintiffs’ Motion to Exclude Testimony of Robert Bea (Doc. 19450) IT IS ORDERED that the motion is DENIED. Barge Plaintiffs’ Motion to Exclude Testimony of Charles Cushing (Doc.19462) The primary attack by plaintiffs on this expert’s testimony concerns his reliance, at least in part, on the testimony of a non-testifying expert witness Dr. Larry Dagget. It appears that Mr. Dagget’s opinion is the type of evidence contemplated under Rule 703 which states “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” “Fed. R. Evid. 703. See Fed. R. Evid 702 advisory committee’s note (the term “data” is intended to encompass the reliable opinions of other experts).” General Electric Capital, 2004 WL 5495590 at *4. 5 Thus, the Court finds Dr. Cushing may testify and render opinions based upon Dr. Dagget’s report; however, Dr. Dagget’s report as attached to Dr. Cushing’s Report is inadmissible and shall be stricken. However, the Court reserves the right to admit it at trial in the event that it finds its probative value would assist the trier of fact. Accordingly, IT IS ORDERED that the motion is DENIED as except with respect to the attached expert report of Mr. Dagget about which the motion is GRANTED. New Orleans, Louisiana, this 6th day of January, 2010. STANWOOD R. DUVAL, JR. UNITED STATES DISTRICT COURT JUDGE 6
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