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Lawton v. Hotspur Sports Co., Inc.

United States District Court, D. Colorado

June 21, 2017

HOTSPUR SPORTS COMPANY, INC., et al., Defendants.


          RAYMOND P. MOORE, United States District Judge

         Pending before the Court is defendant Hotspur Sports Company, Inc.'s (“defendant”) motion to exclude Seth Bayer (“Bayer”) and Stanley Gale (“Gale”) from testifying at trial (ECF No. 30).[1]Plaintiff Stephen Lawton (“plaintiff”) has responded in opposition to the motion (ECF No. 38), and filed an affidavit from Bayer (“the Bayer affidavit”) (ECF No. 38-2 at 2-21). Defendant has filed a reply in support of the motion, and asked the Court to strike the Bayer affidavit. (ECF No. 41.) The Court makes the following findings.

         I. Legal Standard

         Rule 702 of the Federal Rules of Evidence (“Rule 702”) governs the admission of expert evidence in federal court. Fed.R.Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167 (1999). Rule 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.

         The Court's role in considering proposed expert evidence is one of a “gatekeeper.” Kumho Tire, 526 U.S. at 147. Factors that might be relevant in carrying out this role include: (1) whether a theory or technique can be or has been tested; (2) whether a theory or technique has been subjected to peer review and publication; (3) whether there is a high known or potential rate of error to a technique and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant community. Id. at 149-150. These factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Id. at 150 (quotation omitted).

         The proponent of expert evidence bears the burden of establishing its admissibility. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).

         II. Discussion

         A. Bayer

         As an initial matter, the Court addresses the Bayer affidavit. Plaintiff submitted the Bayer affidavit with its response to the instant motion for the apparent reason to provide additional detail about Bayer's work, methodology, and conclusions. (See ECF No. 38 at 2-3.) As defendant argues in reply (ECF No. 41 at 1-4), this was improper. Although the Court is less concerned with Bayer attempting to rebut defendant's arguments for excluding his original expert report, Bayer attempts to do far more than that. The Bayer affidavit at 19 pages (over twice the length of Bayer's actual expert report) is essentially a brand new expert report. It provides far greater explanation of Bayer's opinions, throws in diagrams and mathematical calculations that do not exist in the original expert report, and appears to adopt an opinion from Gale's expert report. (See generally ECF No. 38-2 at 2-21.) The deadline to exchange expert witness disclosures, though, was extended to only December 30, 2016. (ECF No. 25.) The affidavit was filed on March 21, 2017 (ECF No. 38), and plaintiff provides no reason or explanation for why the late-filed affidavit is properly before the Court such as that Bayer had possession of information that was not previously available to him. Therefore, the Court will not consider the Bayer affidavit in assessing the instant motion, and will consider only the original expert report of Bayer that was properly disclosed. See Scholl v. Pateder, 2012 WL 2360542, at *3 (D. Colo. June 20, 2012) (explaining that a supplemental expert report that states additional opinions or seeks to strengthen or deepen opinions “exceeds the bounds of permissible supplementation, ” but declining to exclude a supplemental report because the information upon which it was premised had not been available at the time of the original report).

         Turning to defendant's objections to Bayer's original expert report, defendant contends that Bayer's opinions are (1) contrary to the evidence; (2) not the product of a reliable methodology; and (3) amount to conjecture. (ECF No. 30 at 6-7.) The Court disagrees.

         Defendant first asserts that Bayer could not determine what aspect of plaintiff's boot/binding system was set incorrectly, and thus, Bayer should not be permitted to list possibilities at trial. (Id. at 7.) Merely because Bayer could not determine the precise fault in the boot/binding system, though, does not diminish his overall opinion that there was a fault in the system and that fault was due to defendant not setting the system appropriately. (ECF No. 30-1 at 7-8.)[2] More specifically, Bayer opined that the fault in the boot/binding system was defendant's improper setting of either the system's visual indicator setting or its forward pressure setting. (Id.)

         Defendant next asserts that Bayer's opinion that the visual indicator setting was set to “5” is contrary to undisputed evidence. (ECF No. 30 at 7.) Defendant points to the declarations of two of its employees. The first declaration discusses the visual indicator setting observed on the boot/binding system during a test performed the day after plaintiff's injury. (See ECF No. 30-6 at ¶¶ 4-5.) Thus, that test is not undisputed evidence of the setting the day before. As for the second declaration, it is more relevant because the employee states that he inspected the boot/binding system “[u]pon the return of the skis, ” and the visual indicator setting was an “8.” (See ECF No. 30-8 at ¶ 3.) However, even if the employee's statements can be considered evidence of the visual indicator setting being an “8” when plaintiff used the skis, [3] that does not mean that Bayer was required to accept the evidence if his expert evaluation of the incident led him to an opposite conclusion. Put another way, ...

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