United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
brings this action to recover damages that its aircraft
sustained during a hail storm. Plaintiff contends that
defendant negligently caused that damage when it left the
aircraft on a runway (instead of placing it inside a hangar)
during the hail storm. Both parties have moved for summary
judgment. Plaintiff's Motion for Summary Judgment (Doc.
105) asserts that its delivery of the aircraft to defendant
for maintenance and repairs created a bailment relationship
that imposed a duty on defendant to safeguard the aircraft.
Plaintiff asserts that the summary judgment facts establish
that defendant breached that duty and negligently caused the
aircraft to sustain damages amounting to $501, 000. Plaintiff
thus asks the court to enter judgment as a matter of law in
its favor for $501, 000.
contrast, defendant's Motion for Summary Judgment (Doc.
84) asserts that Kansas law imposed no duty to put the
aircraft in a hanger while it was at defendant's facility
for maintenance and repairs. And, even if a duty existed,
defendant argues, plaintiff's negligence claim fails as a
matter of law because plaintiff offers no expert opinion to
establish causation, as Kansas law requires.
reasons explained below, the court agrees with defendant. So,
it grants defendant's Motion for Summary Judgment. The
court also denies plaintiff's Motion for Summary
Judgment. The court explains how it reaches these
Motions to Exclude and Strike
considering the parties' summary judgment motions, the
court addresses two other motions that defendant has filed.
First, defendant filed a Motion to Exclude the Expert
Testimony of Brad Guyton. Doc. 86. Second, defendant filed a
Motion to Strike. Doc. 109. The court first addresses the
Motion Strike and then turns to the Motion to Exclude.
Motion to Strike
Motion to Strike (Doc. 109) asks the court to strike certain
material from plaintiff's Motion for Summary Judgment
(Docs. 105 & 106) and plaintiff's Opposition to
defendant's summary judgment motion (Doc. 97).
12(f) provides that “[t]he court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Our court has refused to apply Rule 12(f)
to strike responses and replies to motions because this Rule
applies only to “pleadings, ” and a response or a
reply to a motion “is not a ‘pleading' that
the [c]ourt may strike under Rule 12(f).” Fox v.
Pittsburg State Univ., 258 F.Supp.3d 1243, 1251 (D. Kan.
2017) (citing Fed.R.Civ.P. 7(a) (listing documents considered
pleadings)); see also Williams v. Alpine Banks of
Colo., No. Civ. A. 05CV02475WDMME, 2006 WL 905333, at *2
(D. Colo. Apr. 7, 2006) (denying a motion to strike because
“[m]otions, briefs in support of motions, responses to
motions, replies to responses to motions, and other papers
are not pleadings under the Federal Rules and cannot be
stricken by the [c]ourt under Rule 12(f)”).
our court disfavors motions to strike. Landrith v.
Gariglietti, No. 11-2465-KHV, 2012 WL 171339, at *1 (D.
Kan. Jan. 19, 2012), aff'd, 505 Fed.Appx. 701
(10th Cir. 2012); Semsroth v. City of Wichita, No.
06-2376-KHV-DJW, 2008 WL 45521, at *2 (D. Kan. Jan. 2, 2008);
Nwakpuda v. Falley's, Inc., 14 F.Supp.2d 1213,
1215 (D. Kan. 1998). Courts usually deny motions to strike
absent a showing of prejudice against the moving party.
Semsroth, 2008 WL 45521, at *2. And, “any
doubt [about] the utility of the material to be stricken
should be resolved against the motion to strike.”
Landrith, 2012 WL 171339, at *1.
defendant seeks an order striking certain material from
plaintiff's Motion for Summary Judgment and its
Opposition to defendant's summary judgment motion. These
documents are not pleadings that the court may strike under
Rule 12(f). Also, defendant asks the court to strike certain
material because, it contends, the material is inadmissible
on summary judgment. For example, defendant seeks to strike:
(1) certain deposition testimony of Nathan Marcus (Jordache
Enterprises, Inc.'s corporate representative) because he
lacks knowledge to support the testimony; (2) the unsworn
expert report of Brad Guyton because it is hearsay; and (3)
certain statements of fact that violate Fed.R.Civ.P. 56 or D.
Kan. Rule 56.1, because they either include multiple
allegations in one statement or lack specific citations to
the factual record. But, instead of striking this proffered
summary judgment evidence, the “better approach is for
the court to consider each [piece of proffered evidence] and,
to the extent it may assert a fact which is not admissible
evidence, simply exclude the requested fact from the
court's ultimate findings.” Murray v. Edwards
Cty. Sheriff's Dep't, 453 F.Supp.2d 1280, 1284
(D. Kan. 2006) (denying a motion to strike an affidavit on
summary judgment); see also Jones v. Barnhart, 349
F.3d 1260, 1270 (10th Cir. 2003) (affirming district
court's evidentiary ruling that denied a motion to strike
an affidavit on summary judgment and instead “relied on
the declarations to the extent that they contained relevant
and admissible material, ignoring inadmissible and irrelevant
statements”); Nelson v. Allstate Ins. Co., No.
92-2309-JWL, 1993 WL 105120, at *6 (D. Kan. Mar. 8, 1993)
(denying a motion to strike an affidavit and holding that
“[i]f the affidavit contains material that is not
admissible or relevant, the Court will ignore it.”).
The court follows that approach here and denies
defendant's Motion to Strike.
Defendant's Motion to Exclude Expert Testimony
Motion to Exclude Expert Testimony (Doc. 86) asks the court
to exclude Brad Guyton's opinions about: (1) the
aircraft's diminution in value; and (2) defendant's
duty to keep the aircraft in a hanger while it was at
defendant's facility for maintenance. Defendant makes
several arguments supporting its Motion to Exclude Mr.
Guyton's expert testimony under Fed.R.Evid. 702. First,
defendant asserts that the court must exclude Mr.
Guyton's proffered expert testimony about alleged
diminution because he is not qualified to value or appraise
aircraft. Second, defendant argues that Mr. Guyton's
opinions about alleged diminution are unreliable because he
used a flawed methodology to form his opinions. Finally,
defendant asserts that Mr. Guyton's opinions about
defendant's duty to hangar the aircraft are neither
relevant nor reliable because they conflict with his own
testimony about his industry experience as well as the facts
of this case.
resolve the parties' pending summary judgment motions,
the court only needs to address defendant's third
argument-whether Mr. Guyton's opinions about
defendant's duty to hangar the aircraft are admissible
under Fed.R.Evid. 702. The court agrees with defendant. Mr.
Guyton's opinion about defendant's purported duty of
care is neither relevant nor reliable under the circumstances
here. The court thus excludes Mr. Guyton's proffered
expert testimony on this subject. But, to resolve the
parties' cross motions for summary judgment, the court
need not address the admissibility of Mr. Guyton's
diminution in value opinions. So, the court grants
defendant's Motion to Exclude in part and denies it in
part. The court grants defendant's Motion to Exclude Mr.
Guyton's opinions about defendant's duty to hangar
the aircraft. The court denies the remainder of
defendant's motion as moot.
court has a “gatekeeping obligation” to determine
the admissibility of expert testimony. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993)). When it performs this gatekeeping duty, the court
has broad discretion to decide whether to admit expert
testimony. Kieffer v. Weston Land, Inc., 90 F.3d
1496, 1499 (10th Cir. 1996) (quoting Orth v. Emerson
Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)). The
admissibility of expert testimony is governed by Federal Rule
of Evidence 702. It 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
court must apply a two-part test to determine admissibility.
Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir.
2013). First, the court must determine “whether the
expert is qualified ‘by knowledge, skill, experience,
training, or education' to render an opinion.”
United States v. Nacchio, 555 F.3d 1234, 1241 (10th
Cir. 2009) (quoting Fed.R.Evid. 702). Second, the court
“‘must satisfy itself that the proposed expert
testimony is both reliable and relevant, in that it will
assist the trier of fact, before permitting a jury to assess
such testimony.'” Id. (quoting United
States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th
Cir. 2006)) (further citations omitted).
qualify as an expert witness, the witness must possess
“such skill, experience or knowledge in that particular
field as to make it appear that his opinion would rest on
substantial foundation and would tend to aid the trier of
fact in his search for truth.” LifeWise Master
Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004)
(internal quotation omitted). To determine whether the
expert's testimony is reliable, the court must assess
“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.” Daubert, 509 U.S. at 592-93.
Daubert, the Supreme Court identified four
factors-though not exhaustive-that trial courts may consider
when determining reliability of proffered expert testimony
under Fed.R.Evid. 702. They are: (1) whether the theory used
can be and has been tested; (2) whether it has been subjected
to peer review and publication; (3) the known or potential
rate of error; and (4) general acceptance in the scientific
community. Id. at 593-94. The Supreme Court has
emphasized that these four factors are not a
“definitive checklist or test, ” and that a
court's gatekeeping inquiry into reliability “must
be tied to the facts of a particular case, ” Kumho
Tire, 526 U.S. at 150, and thus may involve other
some cases, “the relevant reliability concerns may
focus upon personal knowledge or experience, ” rather
than the Daubert factors and scientific foundation.
Id. For such testimony to satisfy the reliability
standard, it “must be ‘based on actual knowledge,
and not mere “subjective belief or unsupported
speculation.”'” Pioneer Ctrs. Holding Co.
Emp. Stock Ownership Plan & Trust v. Alerus Fin.,
N.A., 858 F.3d 1324, 1341-42 (10th Cir. 2017) (quoting
Mitchell v. Gencorp, Inc., 165 F.3d 778, 780 (10th
Cir. 1999) (quoting Daubert, 509 U.S. at 590)).
“When expert opinion ‘is not supported by
sufficient facts to validate it in the eyes of the law, or
when indisputable record facts contradict or otherwise render
the opinion unreasonable, it cannot support a jury's
verdict' and will be excluded.” Id. at
1342 (quoting Brooke Grp. Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209, 242 (1993)).
proponent of expert testimony bears the burden of showing
that the testimony is admissible.” Conroy, 707
F.3d at 1168 (citing Nacchio, 555 F.3d at 1241).
“[R]ejection of expert testimony is the exception
rather than the rule.” Fed.R.Evid. 702 advisory
committee notes. While Daubert unquestionably
assigns a gatekeeper role for to trial judges,
“[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of
proof” remain “the traditional and appropriate
means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596 (citation omitted).
court has discretion to determine how to perform its
gatekeeping function under Daubert. Goebel v.
Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087
(10th Cir. 2000). “The most common method for
fulfilling this function is a Daubert hearing,
although such a process is not specifically mandated.”
Id. (citations omitted). In this case, the parties
do not request a hearing. And after reviewing the exhibits
filed with the motions carefully, the court finds that the
record provides sufficient information to render a decision
without a hearing.
the two-part test to determine the admissibility of Mr.
Guyton's expert testimony, the court first considers
whether Mr. Guyton is qualified to render the expert opinion.
Plaintiff asserts that Mr. Guyton is qualified to testify
about defendant's duty to hangar the aircraft based on
his 30-plus years of experience in the aircraft industry. Mr.
Guyton previously worked for defendant's predecessor
company in several, different roles including Director of
Maintenance. Mr. Guyton now owns and operates BAG Aviation,
Inc., a company that provides consulting services to buyers
and sellers of aircraft. BAG Aviation, Inc. provides support
to its clients with the pre-buy inspection, working with a
broker, aircraft sales, and other technical advisory
services. Also, Mr. Guyton was involved in the underlying
facts leading to this lawsuit. Plaintiff hired Mr. Guyton as
a contractor to assist with technical day-to-day maintenance
and repairs on its aircraft while the aircraft was at
defendant's facility. Mr. Guyton worked as a portable
Director of Maintenance, and he oversaw the maintenance and
airworthiness of plaintiff's aircraft until plaintiff
court agrees that Mr. Guyton's experience-including his
30 years of experience in the aircraft industry-qualifies him
to provide expert testimony about the standard of care for
safeguarding aircraft during maintenance. Indeed, an expert
witness's testimony “can rely solely on
experience.” See United States v. Nacchio, 555
F.3d 1234, 1258 (10th Cir. 2009). Thus, Mr. Guyton's
proffered expert testimony satisfies the first step of the
it's the second of the two-part test that presents the
problems. This second step requires plaintiff to show that
Mr. Guyton's opinions are relevant and reliable. And as
the Tenth Circuit has explained, an expert witness's
testimony based solely on experience “‘must
explain how that experience leads to the conclusion reached,
why that experience is a sufficient basis for the opinion,
and how that experience is reliably applied to the
facts.'” Id. (quoting Fed.R.Evid. 702
advisory committee's note (2000)). The Tenth Circuit has
explained the reason for this requirement: “The trial
court's gatekeeping function requires more than simply
‘taking the expert's word for it.'”
Id. (quoting Fed.R.Evid. 702 advisory
committee's note (2000)). “‘[N]othing in
either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of
the expert.'” Id. (quoting Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Mr. Guyton opined that it is “customary within the
industry that if an aircraft is at a facility for maintenance
that it's kept inside a hanger.” Doc. 85-1 at 36
(Guyton Dep. 140:21-141:1). Mr. Guyton bases this opinion on
his experience in the aircraft industry. Yet, his testimony
about that experience and the facts of this case contradict
his proffered opinion.
Guyton testified, based on his knowledge and his
understanding from working with defendant, that
“it's not possible to keep aircraft hangared all
the time.” Doc. 85-1 at 36 (Guyton Dep. 139:8-12).
Also, this statement is consistent with Mr. Guyton's
testimony about his previous experience working for
defendant's predecessor. During that employment, Mr.
Guyton helped make decisions about moving aircraft around the
facility to ramp space and hangar space. Mr. Guyton
acknowledged that the facility, at times, had too many
aircraft to keep them all inside the hanger. When that
happened, Mr. Guyton decided which aircraft to place in a
hangar based on the aircraft's schedule and its release
Guyton recognizes that maintenance facilities use different
procedures and charge customers different rates to pay for
hangar space. But, in this case, Mr. Guyton never signed any
authorization to pay for hangar space at defendant's
facility when he was working as plaintiff's contractor
and as its portable Director of Maintenance. Also, Mr. Guyton
acknowledged that the parties' contract never required
defendant to store the aircraft in a hangar. And Mr. Guyton
does not recall plaintiff-his ultimate boss, in effect-ever
asking him to have the aircraft placed in a hangar.
the time that plaintiff's aircraft was located at
defendant's facility, Mr. Guyton never directed defendant
to place the aircraft in a hangar. Mr. Guyton also does not
know if defendant had hangar space available for the aircraft
on June 5, 2014-the date when the hail storm occurred. Before
the June 5 storm, Mr. Guyton knew that another storm had
occurred at defendant's facility. And, during that
earlier storm, the aircraft was parked outside. After he
learned about the earlier storm, Mr. Guyton never asked
defendant to put the aircraft in the hangar. Also, he neither
provided any follow-up instructions nor gave any specific
directions to defendant after he learned that the aircraft
was outside (and not in a hangar) during the earlier storm.
Mr. Guyton's testimony about industry standards and the
facts involved in this case-things that directly conflict
with his opinion-Mr. Guyton nevertheless opines that
defendant had a duty to place plaintiff's aircraft in a
hangar. But Mr. Guyton concedes that he can produce no
literature supporting this opinion. And he knows of no
published authority supporting his opinion. Also, Mr. Guyton
testified that none of his training in the aircraft industry
addressed the issue whether-and when-a maintenance facility
should store an aircraft inside a hangar.
Mr. Guyton's deposition testimony demonstrates that his
opinion is not “tied to the facts” of this
particular case. Kumho Tire, 526 U.S. at 150. Mr.
Guyton's opinion also conflicts with his own deposition
testimony about the industry standard for placing an aircraft
in a hangar at a maintenance facility. His opinion also
contradicts the facts here-namely, that the parties'
contract never imposed any duty on defendant to hangar the
aircraft; Mr. Guyton never directed defendant to place the
aircraft in a hanger (even after he knew that the aircraft
was outside at defendant's facility during an earlier
storm); and he never provided any follow-up instructions to
defendant about how it should store the aircraft. Instead,
the only connection between the facts here and Mr.
Guyton's opinion is “‘the ipse dixit
of the expert.'” Id. at 157 (quoting
Joiner, 522 U.S. at 146).
opinion will not help the trier of fact, making it
inadmissible under Fed.R.Evid. 702. See,
e.g., United States v. Fredette, 315 F.3d
1235, 1240 (10th Cir. 2003) (affirming district court's
exclusion of expert testimony as unreliable because the
expert “never explained why his personal experience was
a sufficient basis for his opinion” and thus his
“proposed testimony did not ‘rest [ ] on a
reliable foundation'” and “would not have
“‘assist[ed] the trier of fact' as required
by Rule 702.” (first quoting Kumho Tire, 526
U.S. at 141; then quoting Fed.R.Evid. 702)); Davis v.
BellSouth Telecomm., Inc., No. 7:10-cv-02851-LSC, 2012
WL 3637762, at *5 (N.D. Ala. Aug. 16, 2012) (excluding expert
opinion that conflicted with the expert's deposition
testimony about his experience and industry knowledge),
aff'd, 541 Fed.Appx. 910 (11th Cir. 2013).
these considerations convince the court that it should
exclude Mr. Guyton's opinion about defendant's
purported duty to place the aircraft in a hangar. By this
Order, it does so.
Motions for Summary Judgment
court now turns to consider the parties' Motions for