United States District Court, D. Kansas
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, as subrogee of Robert and Mandy Harris, et al., Plaintiffs,
TECHTRONIC INDUSTRIES NORTH AMERICA, INC., et al., Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
American Family Mutual Insurance Company, Robert Harris and Mandy Harris bring suit against Techtronic Industries North America, Inc., OWT Industries, Inc. and Techtronic Industries Factory Outlets, Inc., asserting that a defective gasoline-powered pressure washer caused a fire on August 22, 2010. Specifically, under the Kansas Product Liability Act ("KPLA"), K.S.A. § 60-3301 et seq., plaintiffs claim that at the time defendants manufactured, distributed and sold a Power Stroke Pressure Washer, it was unreasonably dangerous due to inadequate warnings. The case is set for trial on June 16, 2014. This matter comes before the Court on Plaintiffs' Motion To Exclude The Testimony Of Dr. Nathan Dorris And Memorandum In Support Thereof ("Plaintiffs' Motion") (Doc. #61) and Defendants' Motion To Strike Plaintiffs' Expert Michael Wogalter, Ph.D. (Doc. #65), both filed October 25, 2013. For reasons stated below, the Court sustains both motions.
Federal Rule of Evidence 702 provides as follows:
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.
Under Fed.R.Evid. 702, the Court has a gate-keeping obligation to determine the admissibility of all expert testimony. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141 (1999) (citing Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 (1993)). Expert testimony is admissible only if it is both relevant and reliable. Id . The touchstone of the Court's inquiry is whether the testimony helps the factfinder understand evidence or determine a fact in issue. BioCore, Inc. v. Khosrowshahi , 183 F.R.D. 695, 699 (D. Kan. 1998). Courts have broad discretion in deciding whether to admit expert testimony, but should resolve doubts in favor of admissibility. Id .; Kieffer v. Weston Land, Inc. , 90 F.3d 1496, 1499 (10th Cir. 1996); see Fed.R.Evid. 702 advisory committee's note; Daubert , 509 U.S. at 588-89.
The Court must determine at the outset whether an expert will testify to scientific, technical or other specialized knowledge that will help the trier of fact understand or determine a fact in issue. Daubert , 509 U.S. at 592-93; see Fed.R.Evid. 104(a), 702. This requires a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether the expert can properly apply it to the facts in issue. Daubert , 509 U.S. at 592-93; see Fed.R.Evid. 104(a), 702. The purpose of this inquiry is always "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. It is therefore important that the expert's opinion be testable, i.e. capable of being challenged in some objective sense, and not just a subjective opinion that cannot reasonably be assessed for reliability. Fed.R.Evid. 702 advisory committee's note; see Kumho Tire , 526 U.S. at 149-53; Daubert , 509 U.S. at 590.
An expert may offer an opinion even if it "embraces an ultimate issue to be determined by the trier of fact." Fed.R.Evid. 704. But an expert may not simply tell the jury what result it should reach. United States v. Simpson , 7 F.3d 186, 188 (10th Cir. 1993). An expert witness's personal belief as to the weight of evidence would invade the province of the jury. Lawrence v. Raymond Corp., No. 3:09 CV 1067, 2011 WL 3418324, at *4 (N.D. Ohio Aug. 4, 2011); Oxford Gene Tech. Ltd. v. Mergen Ltd. , 345 F.Supp.2d 431, 435 (D. Del. 2004). Expert opinions that address matters which are equally within the competence of the factfinder to understand and decide are not helpful to the factfinder and therefore inadmissible. McGowan v. Cooper Indus., Inc. , 863 F.2d 1266, 1273 (6th Cir. 1988) (citing Fed.R.Evid. 701, 702); see Thompson v. State Farm Fire & Cas. Co. , 34 F.3d 932, 941 (10th Cir. 1994).
The Court's gate-keeping function is not meant to supplant "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof... [as] the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 596 (citation omitted). The proponents of expert testimony bear the burden of establishing ...