United States District Court, D. Colorado
UNITES STATES WELDING, INC., a Colorado corporation, Plaintiff,
TECSYS, INC., a Canadian corporation, Defendant.
ORDER CONCERNING MOTIONS TO EXCLUDE OPINION TESTIMONY
ROBERT E. BLACKBURN JUDGE
The matters before me are (1) the Motion To Exclude Portions of Eric Kimberling’s Expert Report [#122] filed June 17, 2015; and (2) the Objections To and Motion To Strike Defendant Tecsys, Inc.’s Rule 26(a) Initial Expert Disclosure [#123] filed June 17, 2015. The parties filed responses [#134 & # 135] and related replies [#144 & #145] addressing both motions. I grant the motions in part and deny them in part.
I. STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert witness testimony, 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 methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. The Supreme Court of the United States has described the court’s role in weighing expert opinions against these standards as that of a “gatekeeper.” See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
As interpreted by the Supreme Court, Rule 702 requires that the testimony of an expert be both reliable, in that the witness is qualified to testify regarding the subject, and relevant, in that it will assist the trier in determining a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The United States Court of Appeals for the Tenth Circuit employs a two-step analysis when considering the admissibility of expert testimony under Rule 702. See 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006).
The trial court has broad discretion in determining whether expert testimony is sufficiently relevant to be admissible. See Truck Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000). The overarching purpose of the court’s inquiry is “to make certain that the expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Goebel v. Denver and Rio Grand Western Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire, 526 U.S. at 152).
Generally, “rejection of expert testimony is the exception rather than the rule.” United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008), vacated in part on rehearing en banc, 555 F.3d 1234 (10th Cir. 2009); Fed.R.Evid. 702, 2000 Advisory Comm.’s Notes. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
This case concerns software licensed to the plaintiff, United States Welding, Inc., by the defendant, TECSYS, Inc. U.S. Welding says the software does not operate as promised by TECSYS and does not meet the requirements of U.S. Welding. U.S. Welding asserts claims for fraudulent inducement, negligent misrepresentation, gross negligence, willful misconduct, breach of contract, breach of express and implied warranty, breach of the duty of good faith and fair dealing, and breach of fiduciary duty.
A. Specialized Legal Terms
US Welding proffers the expert testimony of Eric Kimberling, who is represented as an expert in the field of enterprise resource planning and enterprise systems, including software. His report is attached to the response [#134] of U.S. Welding. Kimberling Report [#134], CM/ECF pp. 13 - 48.
In its motion [#122], TECSYS argues Mr. Kimberling should be precluded from offering opinions expressed in his report which amount to legal conclusions. For example, in his report, Mr. Kimberling says: “TECSYS was also negligent in that it failed to perform its due diligence on the proper requirements and functionality of the software . . . .” Kimberling Report [#134], CM/ECF p. 25. He says “TECSYS miscommunicated in multiple ways during the sales process with U.S. WELDING, resulting in behavior reflective of fraud and misrepresentation.” Id., CM/ECF p. 26. He says “TECSYS did not effectively perform this maintenance per agreed (sic), clearly demonstrating a breach ...