United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
August 29, 2013, plaintiff sustained electrical injuries when
he was installing a guard structure under an overhead power
transmission line during a utility line construction project
near Medicine Lodge, Kansas. At the time of his injury,
plaintiff was employed by and performing work for his
employer, Track Utilities, LLC (“Track”).
Plaintiff asserts negligence claims against the owner of the
transmission line, Mid-Kansas Electric Company, LLC, and the
operator of the transmission line, Sunflower Electric Power
Corporation. While plaintiff initially asserted negligence
claims against the contractor responsible for the utility
line construction project, Power Constructors, Inc.
(“Power”), the court recently granted Power's
motion for summary judgment after concluding that
plaintiff's claims against Power were barred by the
exclusive remedy provision of the Kansas Workers'
matter is now before the court on the Utilities' motion
to strike plaintiff's expert, Donald R. Johnson. Mr.
Johnson is a licensed electrical engineer with more than
thirty-five years of experience in the field of electric
power distribution, including the construction and design of
electric utility systems and overhead electric transmission
line construction. Mr. Johnson is a member of the Institute
of Electric and Electronic Engineers (IEEE) and is
knowledgeable about National Electronic Safety Code
(“NESC”) compliance. Plaintiff intends to call
Mr. Johnson as a witness at trial primarily to establish the
duty of care and to prove the breach of that duty by the
Utilities. In resolving the Utilities' motion to exclude,
the court assumes familiarity with the court's memorandum
and order resolving the parties' motions for summary
judgment and the parties' factual showing on summary
judgment. As will be explained, the motion is granted in part
and denied in part.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), the Supreme Court instructed that district
courts are to perform a “gatekeeping” role
concerning the admission of expert testimony. See
Id. at 589-93; see also Kumho Tire Co. Ltd. v.
Carmichael, 526 U.S. 137, 147-48 (1999). The
admissibility of expert testimony is governed by Rule 702 of
the Federal Rules of Evidence, which states:
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.
Fed. R. Evid. 702.
order to determine that an expert's opinions are
admissible, this court must undertake a two-part analysis:
first, the court must determine that the witness is qualified
by “knowledge, skill, experience, training, or
education” to render the opinions; and second, the
court must determine whether the witness's opinions are
“reliable” under the principles set forth in
Daubert and Kumho Tire. See Ralston v.
Smith & Nephew Richards, Inc., 275 F.3d 965, 969
(10th Cir. 2001). The rejection of expert testimony is the
exception rather than the rule. See Fed. R. Evid.
702 advisory committee notes. Under Rule 702, “[t]he
proponent of expert testimony bears the burden of
showing” that its proposed expert satisfies these
requirements, and district courts have considerable latitude
in determining whether the proponent has satisfied this
burden. See Heer v. Costco Wholesale Corp., 589
Fed.Appx. 854, 861 (10th Cir. 2014) (quoting United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009);
Kumho Tire, 526 U.S. at 152).
parties in this case agree that the Utilities were required
to conform to the standards set forth in the National
Electrical Safety Code (NESC). Relying on a Kansas
Administrative Regulation, plaintiff contends that the
Utilities were required to follow the 1997 edition of the
NESC. See K.A.R. § 82-12-2 (2009). The
Utilities, in turn, contend that federal regulations require
them to follow the most recent edition of the NESC, which is
the 2012 edition. See 7 C.F.R. § 1724.50. The
parties agree that, for purposes of this case, there are no
substantive differences between the two editions of the NESC.
the fact that no meaningful distinction exists between the
1997 and 2012 editions of the NESC, Mr. Johnson repeatedly
criticizes the Utilities in his report based on the
Utilities' failure to “study” the 1997
edition; failure to maintain a copy of the 1997 edition in
the offices of management personnel; failure to
“look” at the 1997 edition; and failure to
consider the 1997 edition to be applicable to the project.
Mr. Johnson concludes that the Utilities had a
“cavalier” attitude about the 1997 edition and
ignored it at all times. The Utilities move to preclude Mr.
Johnson from telling the jury that the 1997 edition of the
NESC applies to this case and from suggesting to the jury
that negligence can be found based solely on the
Utilities' failure to adhere to the 1997 edition. The
motion is granted.
light of the parties' agreement that there is no
meaningful distinction between the two editions of the NESC,
the court need not decide whether one edition applies over
the other edition. Because there is no substantive
difference, and because Mr. Johnson agrees that it is common
practice in the industry for utilities to follow the most
recent (2012) edition of the NESC, Mr. Johnson may not tell
the jury that the Utilities' failure to adhere to the
1997 edition is pertinent in any respect. He is free to rely
on the 1997 edition in connection with explaining to the jury
the applicable standard of care or a particular safety
requirement, but he may not suggest to the jury that the 1997
edition (as opposed to the 2012 edition) necessarily governs
the Utilities or that the Utilities departed from the
applicable standard of care based solely on their failure to
adhere to the 1997 edition.
the Utilities Knew that Track was Working Under an Energized
Opinion B of his report, Mr. Johnson opines that the
Utilities knew that Track was building guard structures under
an energized line. The Utilities move to exclude this opinion
on the grounds that it is based solely on the deposition
testimony of Randall Miller, a Track employee, and is
contradicted by other evidence in the record reflecting that
the Utilities expected that the guard structures would be
built after the scheduled outage. This opinion is excluded
but not because it is contradicted by other evidence in the
record. Rather, Mr. Johnson's opinion amounts to no more
than his personal belief as to the weight of the ...