United States District Court, E.D. Tennessee, Chattanooga
K. LEE UNITED STATES MAGISTRATE JUDGE.
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].
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; (d) Loss of the
enjoyment of life, past and future; [and] (e) Lost wages and
loss of earning capacity, past and present.” [Doc. 1].
MOTIONS BEFORE THE COURT
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,
(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.
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.
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).
Standards Relevant to the Daubert Motions
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.
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.
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.
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).
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).
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.
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.
Federal Rules of ...