United States District Court, D. Colorado
GREAT NORTHERN INSURANCE COMPANY and UNIQUE HOME DESIGNS, INC., Plaintiffs,
NGL WAREHOUSE, LLC, Defendant.
A. BRIMMER United States District Judge
matter comes before the Court on Plaintiffs' Motion to
Exclude Defense Expert Testimony [Docket No. 152], wherein
plaintiffs seek to prevent defendant NGL Warehouse, LLC
(“NGL”) from introducing certain opinion
testimony of witnesses Joseph B. Michels, Ph.D. and Sher Paul
factual background of this case is contained in the
Court's order on plaintiffs' summary judgment motion
[Docket No. 140] and will not be recounted here except as
relevant. Plaintiffs seek indemnification from NGL for a
settlement payment and associated defense costs they paid to
resolve a Texas lawsuit involving a fatal accident at a Home
Depot store. The accident occurred when doors manufactured by
plaintiff Unique Home Designs, Inc. (“Unique”)
fell onto and killed John Valdez, a Home Depot employee.
Docket No. 140 at 1. At the time of the accident, Mr. Valdez
was unloading the doors from a pallet that defendant NGL, a
warehouse company, had packed. Id. NGL failed to
follow the customer specific requirements
(“SOPS”) it received from Unique requiring the
doors to be packed at an angle using a stop block and wrapped
in groups of four using blue inner wrapping material.
Id. at 4-5.
the fatal accident, Mr. Valdez's estate and his surviving
relatives sued The Home Depot, Inc., Unique, and NGL (the
“underlying action”). Docket No. 140 at 2. Home
Depot filed third-party claims against the plaintiffs in the
underlying action to recoup employee benefits it had
and against Unique for indemnification. Docket No. 154-4.
Home Depot and Unique settled the claims against them in the
underlying litigation, with Home Depot contributing $950, 000
and Unique and its insurer, plaintiff Great Northern
Insurance Company, contributing $5 million. Docket No. 1 at
and NGL are parties to a Warehouse Agreement, which contains
the following indemnification provision:
Each party (the “Indemnitor”) shall
indemnify and hold the other party and any affiliated,
controlling or subsidiary entities of such party, and the
directors, employees, officers, agents, subcontractors,
licensors and suppliers of all of them (in each case, the
“Indemnitee”) harmless from and against
all liabilities, claims, suits, actions, fines, damages,
losses, costs and expenses (including reasonable
attorneys' fees) (“Damages”) arising
out of injury to or death of any person, or damage to or loss
or destruction of any tangible personal property or
improvements to real property (except for lost or damaged
Goods where liability is governed by Article III or V) to the
extent caused by or resulting from such party's willful
misconduct or negligent acts or omissions or those of its
employees or agents. If the Indemnitor and the Indemnitee
have, through their negligent acts or omissions, jointly
contributed to any of the matters to be indemnified
hereunder, the indemnification hereunder shall only be to the
extent that the same was not caused by the negligent acts or
omissions of the Indemnitee.
Docket No. 105-1 at 13, ¶ 12.01. The Warehouse Agreement
is governed by Colorado law. Id. at 14, ¶
and Home Depot are parties to a Supplier Buying Agreement
(“SBA”), which contains the following
indemnification and defense provision:
[Unique] will indemnify and defend [Home Depot] . . . from
and against any and all claims or allegations made by any
person (including those made by [Unique's] directors,
officers and employees), losses, damages, suits, fees,
judgments, costs and expenses (including attorneys' fees
incurred in responding to such claims) that [Home Depot] may
suffer or incur arising or alleged to have arisen out of or
in connection with (a) any personal injury (including death)
or damage to property arising out of the acts or omissions of
[Unique], its employees and agents, contractors,
subcontractors and/or any other persons for whose conduct
[Unique] may be or is alleged to be legally responsible . . .
. This agreement to indemnify, defend and hold [Home Depot]
and its affiliates harmless applies whether or not the claim
or loss was alleged to have been caused in whole or in part
by the negligence or fault of [Home Depot].
Docket No. 154-2 at 8, ¶ 6.1.
November 7, 2016, plaintiffs filed their motion to exclude.
Docket No. 152. NGL does not oppose the exclusion of the
opinions of Dr. Michels identified by plaintiffs. Docket No.
157 at 2. Accordingly, the Court will grant the motion with
respect to the opinions of Dr. Michels identified by
argue that (a) certain of Dr. Singh's opinions about the
packing of the doors and Home Depot's and NGL's
alleged negligence are irrelevant because the only issue in
this case is whether NGL must indemnify Unique for its
contribution to the settlement of the underlying action,
Docket No. 152 at 7-10; (b) NGL fails to establish that any
of Home Depot's failures caused the accident and are
therefore irrelevant, id. at 10-11; (c) Dr.
Singh's opinions lack a reliable methodology,
id. at 12-13; and (d) two of Dr. Singh's
purported opinions are really fact statements that are not
the proper subject of expert testimony. Id. at 4.
responds that Home Depot's alleged negligence is relevant
because part of plaintiffs' $5 million payment in the
underlying action is attributable to Home Depot's
negligence, for which NGL has no duty to indemnify Unique.
Docket No. 157 at 5-6 (citing Docket No. 154).
FEDERAL RULE OF EVIDENCE 702
702 of the Federal Rules of Evidence provides that:
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. As the rule makes clear, while required,
it is not sufficient that an expert be qualified based upon
knowledge, skill, experience, training, or education to give
opinions in a particular subject area. Rather, the Court must
“perform[ ] a two-step analysis.” 103
Investors I, L.P. v. Square D Co., 470 F.3d 985, 990
(10th Cir. 2006). After determining whether the expert is
qualified, the specific proffered opinions must be assessed
for reliability. See id.; Fed.R.Evid. 702 (requiring
that the testimony be “based on sufficient facts or
data, ” be the “product of ...