The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
This civil action is before the Court pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by the Order [Doc. 104] of the Honorable Thomas A. Varlan, United States District Judge, for disposition of the defendant's Motion in Limine [Doc. 70] and the plaintiffs' Motion for an Order Excluding Testimony of Defendant's Witness Daniel J. Gerding. [Doc. 73] The parties have advised chambers that they rely on their briefs in these matters. Accordingly, the Court will proceed without oral argument as to the two motions.
Both parties challenge the admissibility of the opposing party's expert under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), with the defendant challenging the expert qualification of James R. Noonan, the plaintiffs' accounting expert, and the plaintiffs challenging the qualification of Daniel J. Gerding, the defendant's architecture expert. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The trial judge must act as a gatekeeper, admitting only that expert testimony that is relevant and reliable. Daubert, 509 U.S. at 589. With regard to scientific knowledge, the trial court must initially determine whether the reasoning or methodology used is scientifically valid and is properly applied to the facts at issue in the trial. Id. To aid the trial court in this gatekeeping role, the Supreme Court has listed several key considerations: (1) whether the scientific knowledge can or has been tested; (2) whether the given theory or technique has been published or been the subject of peer review; (3) whether a known error rate exists; and (4) whether the theory enjoys general acceptance in the particular field. Id. at 592-94. The Court's focus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595. "[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).
Although Daubert centered around the admissibility of scientific expert opinions, the trial court's gatekeeping function applies to all expert testimony, including that based upon specialized or technical, as opposed to scientific, knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999); Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994). The trial court's 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." Kumho Tire, 526 U.S. at 152. The trial judge enjoys broad discretion in determining whether the factors listed in Daubert reasonably measure reliability in a given case. Id. at 153. With this framework in mind, the Court will now address the two motions.
The defendant moves the Court to exclude the expert report and testimony of James R. Noonan, the plaintiffs' accounting expert. The defendant contends that Mr. Noonan is not qualified to opine in this area, and further argues that Mr. Noonan's expert disclosure was untimely. Defendant contends that Mr. Noonan lacks any sort of background in real estate finance, banking, or any other area which would allow him to opine on the use of real property to finance the improvements sought by the plaintiffs. The plaintiffs oppose the motion, arguing that their expert is qualified to express the proffered opinions and further argue that their expert disclosures were delayed by the defendant's delay in the production of requested financial information.
As to the issue of timeliness, the Court notes that the District Court's Order dated July 18, 2008, granted the plaintiff's request for an extension of the expert disclosure deadline to the extent that Mr. Noonan's disclosure would be considered as timely filed. [Doc. 97] Accordingly, the timeliness of Mr. Noonan's disclosure has already been addressed.
As to Mr. Noonan's experience and qualifications, a review of Mr. Noonan's resume indicates that Mr. Noonan is a Certified Public Accountant, Certified Valuation Analyst, Certified Managerial Accountant, and has a B.S. and an M.B.A. in Finance. [Doc. 79-2] After reviewing the expert report of Mr. Noonan, the Court finds that the opinions offered by Mr. Noonan are primarily financial in nature, relying upon a review of the financial records of the defendant, and are such that an extensive background in real estate finance is not needed. To the extent that Mr. Noonan's lack of specific real estate experience might affect the weight of Mr. Noonan's testimony, the Court notes that "[v]igorous 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. Accordingly, the defendant's motion [Doc. 70] is hereby DENIED.
The plaintiffs move the Court to exclude the expert report and testimony of Daniel J. Gerding, the defendant's architectural expert. Plaintiffs contend that Mr. Gerding's report lacks any indication that it is based upon sufficient facts or data, that it is not relevant because it fails to specifically identify what "requested modifications" it applies to, and that the December, 2007, supplement to Mr. Gerding's report was untimely ...