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Bell v. Sam's East, Inc.

United States District Court, E.D. Tennessee, Chattanooga

February 15, 2018

ROBIN LYNETTE BELL, Plaintiff,
v.
SAM'S EAST, INC., et al., Defendants.

          ORDER

          SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE.

         Before the Court are a number of motions in limine (sometimes “MIL” or “MILs”) filed jointly by Defendant Sam's East, Inc. (“Sam's”) and Defendant Morgan's Striping Service, Inc. (“Morgan's, ” and collectively, the “Defendants”). The motions addressed in this order relate to the testimony of Plaintiff Robin Lynette Bell's (“Plaintiff's”) expert witnesses: Russell J. Kendzior, Plaintiff's slip and fall expert [Docs. 56 & 57]; Dr. Nathan Wyatt, a neurologist who treated Plaintiff [Docs. 61, 62, & 66]; and Dr. Jason Eck, an orthopedic surgeon who treated Plaintiff [Doc. 64]. Also addressed in this order is Defendants' motion regarding whether Plaintiff may introduce evidence concerning damages for future pain and suffering and loss of enjoyment of life [Doc. 60].

         I. BACKGROUND

         This is a slip and fall, diversity jurisdiction case. Plaintiff claims that, on August 31, 2014, after shopping in a Sam's Club store, she was walking through the parking lot toward her car when she slipped and fell on a painted stripe, which was wet due to rainfall earlier in the day. Morgan's had previously been hired by Sam's to paint the stripes in the parking lot, and Plaintiff claims Morgan's failed to put additives in the paint to make it less slippery when wet. Plaintiff asserts causes of action against Defendants for negligence. In her complaint, Plaintiff seeks $600, 000 in damages for “(a) Permanent injuries to her knee and body as a whole, past and future; (b) Pain, mental anguish and suffering, past and future; (c) Medical and hospital expenses, past and future[1]; (d) Loss of the enjoyment of life, past and future; [and] (e) Lost wages and loss of earning capacity, past and present.” [Doc. 1].

         II. MOTIONS BEFORE THE COURT

         Defendants' joint MILs addressed herein are:

(1) Defendants' MIL #5 to Exclude Any Evidence or Testimony About any Future Treatment that was Not Testified to by an Expert and to Exclude any Medical Bills that were Not Testified to by an Expert [Doc. 60], filed January 17, 2018;
(2) Defendants' MILs #8-11 to Exclude Portions of Dr. Nathan Wyatt's Deposition Testimony [Doc. 61], filed January 17, 2018;
(3) Defendants' MILs #12-14 to Exclude All or Portions of Dr. Jason Eck's Deposition Testimony [Doc. 64], filed January 17, 2018;
(4) Defendants' MIL #15 Daubert Motion to Exclude Plaintiff's Expert, Dr. Nathan Wyatt [Docs. 62 & 66], filed January 17, 2018;
(5) Defendants' MIL #26 Daubert Motion to Exclude Plaintiff's Expert, Russell Kendzior [Doc. 56], filed January 10, 2018; and
(6) Defendants' MILs #27-33 to Exclude Portions of Deposition Testimony (relating to Mr. Kendzior) [Doc. 57], filed January 10, 2018.

         Plaintiff filed responses to these motions [see Doc. 76 (response to Doc. 60); Doc. 77 (response to Doc. 61); Doc. 78 (response to Doc. 64); Doc. 79 (response to Docs. 62 & 66); and Doc. 80 (response to Docs. 56 & 57)]. Sam's filed a reply in support of Defendants' motion in limine #5 [Doc. 85]. These matters are now ripe. Although Plaintiff requested a hearing on Defendants' Daubert motions, the Court has reviewed the materials and determined that a hearing on these motions is not necessary.

         III. STANDARDS

         “In a diversity case, the admissibility of evidence is a procedural matter governed by federal law.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000) (citation omitted). A motion in limine is a motion “to exclude anticipated prejudicial evidence before the evidence is actually offered.” Louzon v. Ford Motor Co., 718 F.3d 556, 581 (6th Cir. 2013) (quoting Luce v. United States, 469 U.S. 38, 40 n.2 (1984)). The goal of a motion in limine is “to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Id. (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). As the Sixth Circuit has noted, “[o]rders in limine which exclude broad categories of evidence should rarely be employed. A better practice is to deal with questions of admissibility as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975).

         A. Standards Relevant to the Daubert Motions

         The admissibility of an expert's testimony is determined by Rule 702 and the standard established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.

         Rule 702 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. “Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources”: (1) opinions based upon the firsthand observation of the witness, such as a treating physician; (2) opinions based upon facts presented at trial, such as asking the expert witness a “hypothetical question or having the expert attend the trial and hear the testimony establishing the facts”; and (3) opinions based upon facts and data presented to the expert outside of court. Fed.R.Evid. 703 advisory committee's note to the 1972 proposed rules.[2]

         Rule 702 reflects decisions by the United States Supreme Court in Daubert and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), which establish the district court's role as a gatekeeper to exclude unreliable expert testimony. See In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008) (discussing Daubert and Kumho). A court has two roles under Daubert: determining whether the evidence is reliable and analyzing whether the evidence is relevant. 509 U.S. at 590-93. Courts must focus “solely on principles and methodology, not on the conclusions that they generate.” Id. at 595; see also Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 675 (6th Cir. 2010) (“The important thing is not that experts reach the right conclusion, but that they reach it via a sound methodology.”). In its gatekeeper role, the court only has the authority to determine the admissibility of the evidence; the weight of the evidence is a determination left to the jury. United States v. Stafford, 721 F.3d 380, 394 (6th Cir. 2013), cert. denied, 134 S.Ct. 463 (2013).

         In deciding the admissibility of proposed expert testimony, the Sixth Circuit has identified three requirements of Rule 702. In re Scrap Metal Antitrust Litig., 527 F.3d at 529. First, the proposed expert must have the requisite qualifications, whether it be through knowledge, skill, experience, training, or education. Id. Second, the proposed testimony must be relevant, which entails the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. (quoting Fed.R.Evid. 702). Third, the proposed expert testimony must be reliable. In re Scrap Metal Antitrust Litig., 527 F.3d at 529. Reliability can be assessed in a number of ways. Testimony can be reliable if it is “based on sufficient facts or data, ” and “the product of reliable principles and methods” which the expert in turn has applied to the facts of the case. Fed.R.Evid. 702. Additionally, a district court determining the reliability of proposed expert testimony may consider “testing, peer review, publication, error rates, the existence and maintenance of standards controlling the technique's operation, and general acceptance in the relevant scientific [or technical] community.” United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) (citing Daubert, 509 U.S. at 593-94).

         Assessing relevance and reliability requires a “preliminary inquiry as to whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Dilts v. United Grp. Servs., LLC, 500 F. App'x 440, 445 (6th Cir. 2012) (quoting Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002)). Although an expert opinion must not rest purely on speculation, “Rule 702 does not require an expert to have absolute certainty in formulating his opinion.” Dilts, 500 F. App'x at 445 (citing Tamraz, 620 F.3d at 670). On the contrary, “experts are permitted wide latitude in their opinions, including those not based on firsthand knowledge, so long as the expert's opinion has a reliable basis in the knowledge and experience of the discipline.” Dilts, 500 F. App'x at 445 (quoting Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000)) (internal quotation marks and alterations omitted). An expert “need not base his opinion on the best possible evidence, but upon ‘good grounds, based on what is known.'” Deutsch v. Novartis Pharm. Corp., 768 F.Supp.2d 420, 453 (E.D.N.Y. 2011) (quoting Daubert, 509 U.S. at 590).

         The proponent of the expert evidence has the burden to establish the expert's opinion is admissible. See Fed. R. Evid. 104(a); Donathan v. Orthopaedic & Sports Med. Clinic, PLLC, No. 4:07-cv-18, 2009 WL 3584263, at *20 (E.D. Tenn. Oct. 26, 2009). An expert is different from a lay witness and “is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 593. The proposed expert must “employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd., 526 U.S. at 152. In determining whether to admit expert testimony, it is “broadly accepted that the district court has considerable leeway.” Baker v. Chevron U.S.A. Inc., 533 F. App'x 509, 520 (6th Cir. 2013) (citation and internal quotation marks omitted); Tamraz, 620 F.3d at 672.

         As a general matter, “rejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d at 530 (citation and internal quotation marks omitted). If the expert's opinion is admissible, it may still be discredited via various tools such as “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596. If the expert opinion is deemed admissible, but ultimately found “insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment.” Id.; see also Fed. R. Civ. P. 50.

         B. Federal Rules of ...


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