United States District Court, D. Kansas
JAMES P. O'HARA, Magistrate Judge.
This case involves a contractual dispute arising from the sale of casino management hardware and software by defendant, Bally Gaming, Inc. ("Bally"), to plaintiffs, BHC Development, LC and BHCMC, LLC-the developers and operators of Boot Hill Casino & Resort in Dodge City, Kansas. Plaintiffs filed suit against defendant asserting claims for breach of contract, negligent misrepresentation, and breach of implied warranty of merchantability. Defendant counterclaimed that plaintiffs failed to make payments due under the purchase agreement and continued to use the software after their license expired. Trial is scheduled to begin March 3, 2014. The matter is currently before the undersigned U.S. Magistrate Judge, James P. O'Hara, on several motions: defendant's motion to strike expert and expert report of Bart A. Lewin (ECF doc. 86); plaintiffs' motion to exclude expert testimony and report of Patrick Crawford (ECF doc. 118); and plaintiffs' motion in limine (ECF doc. 136).
I. Motions to Exclude Experts
Rule 702 of the Federal Rules of Evidence governs the admissibility of opinions based on scientific, technical, or specialized knowledge. Under Rule 702, a witness who is qualified by knowledge, skill, experience, training, or education (called an "expert witness") may testify in the form of an opinion or otherwise as to scientific, technical, or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, "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." A district court has wide discretion in deciding whether to admit expert testimony.
The court employs a two-step analysis to determine the admissibility of an expert's opinion. First, the court must determine whether the expert's proposed testimony has "a reliable basis in the knowledge and experience of his discipline." The court must then inquire into whether the proposed testimony is sufficiently "relevant to the task at hand." An expert opinion "must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation... absolute certainty is not required."
A. Defendant's Motion to Strike Expert Bart A. Lewin
Plaintiffs have identified Bart Lewin as their expert to opine on whether the software defendant sold: (1) was delivered in good working order; (2) included all necessary functions to comply with the Kansas Expanded Lottery Act and Kansas Administrative Regulations, plaintiffs' contract with the Kansas Lottery, and plaintiffs' internal controls; (3) included all necessary functions to conduct marketing operations; (4) contained all functions on the Functionality Spreadsheet; and (5) met the minimum standard of merchantability for similar products. Defendant moves the court to exclude Mr. Lewin's opinion because: (1) it is not based on sufficient facts and data; and (2) it fails to meet the reliability test under Daubert.
1. Sufficient Facts or Data
Defendant argues Mr. Lewin's insufficient knowledge of the Bally software or its operation render his opinions suspect. First, defendant asserts that Mr. Lewin's qualifications combined with his deposition testimony show he had insufficient knowledge about the system or how it was operated at the Boot Hill Casino. Defendant emphasizes the fact that Mr. Lewin could not testify with certainty about whether there was related hardware or third-party systems plaintiffs were required to purchase under the agreement. Because Mr. Lewin testified that he did not inquire about Boot Hill Casino's information technology ("IT") department, defendant also claims Mr. Lewin lacks familiarity with how the system operated at the casino.
Plaintiffs respond that there is no question Mr. Lewin is qualified to opine on casino management software, including defendant's systems software. Mr. Lewin was the Chief Technology Officer of a multinational casino operator, where he oversaw an IT department that operated Bally's software. Mr. Lewin has written over twenty articles that have been published in gaming industry trade magazines. In addition, he has operated the same Bally software used by plaintiffs and developed software that interfaces with it. Finally, Mr. Lewin has served as an industry consultant, advising casinos on how to make effective use of the same Bally software at issue here.
Plaintiffs also respond that Mr. Lewin's failure to consider hardware or third-party systems as alternative explanations for their software problems goes to the weight and not the admissibility of his opinions. Mr. Lewin's assumption that plaintiffs used third-party systems was based on his professional experience that use of such systems is necessary for any casino operating progressive slot machines. Similarly, plaintiffs assert that Mr. Lewin's failure to investigate the IT department is an alternative explanation that goes to the weight and not the admissibility of his opinions. Regardless, plaintiffs point out that Mr. Lewin observed notes within defendant's issue logs that suggest it is very unlikely certain issues were related to inadequate training.
"The Tenth Circuit employs a quantitative, rather than a qualitative analysis when examining the sufficiency of the facts and data used by the witness." Mr. Lewin reviewed over fifty issue logs authored by defendant's employees to track the casino's complaints as well as numerous other documents. Since defendant does not challenge the accuracy of information written by its own employees, plaintiffs insist that Mr. Lewin's opinions are based on sufficient facts and data and should not be excluded.
Mr. Lewin's background includes twenty-five years of experience in the gaming industry in which he performed jobs as a chief technology officer, director of software development, chief executive officer of a gaming industry software supplier, and an industry consultant to casinos regarding Bally software. He has experience developing and operating casino management software. Specifically, he has experience working with defendant's software. As earlier indicated, he also has written over twenty articles that have been published in gaming trade magazines.
Mr. Lewin's report indicates that he intends to testify on the performance of defendant's software. The court has no doubt Mr. Lewin is able to opine on the performance of defendant's casino management software based on his background and extensive experience. Therefore, to the extent defendant moves to exclude Mr. Lewin's testimony on the basis of his qualifications, the court denies its motion.
Moreover, the court agees with plaintiffs that Mr. Lewin's admission that he failed to investigate the IT department or consider the hardware or third-party systems as alternative explanations for the software's performance goes to the weight and not the admissibility of Mr. Lewin's opinions. Mr. Lewin's failure to rule out all possible alternative causes of the software's performance does not render his opinions inadmissible. Defendant may challenge Mr. Lewin's opinions via "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.... the tradition and appropriate means of attacking shaky but admissible evidence." The rejection of expert testimony is the exception rather than the rule.[12 ...