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Obermeyer Hydro Accessories, Inc. v. CSI Calendering, Inc.

United States District Court, D. Colorado

March 8, 2018




         Pending before the Court are the following motions to exclude expert testimony: (1) plaintiff Obermeyer Hydro Accessories, Inc.'s (“plaintiff”) Motion to Exclude Expert Testimony of Jeff Leach (“the Leach motion”) (ECF No. 160); and (2) defendant CSI Calendering, Inc.'s (“defendant”) Motion to Exclude Plaintiff's Rebuttal Expert Witness Disclosures and Exclude Expert Testimony, which seeks to exclude the testimony of Henry K. Obermeyer (“the Obermeyer motion”) (ECF No. 161).[1] The Court addresses each motion infra, and 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. The Leach Motion

         Plaintiff objects to the entirety of defendant's expert's, Jeff Leach (“Mr. Leach”), report. (See generally ECF No. 160.) In doing so, plaintiff addresses each bullet point heading of the report and the paragraphs following said headings. The Court follows a similar approach in determining what opinions, if any, may be allowed at trial.

         The first heading is: “‘Turnkey' has a specific meaning in the calendering industry.” (ECF No. 160-1 at 5.) The first paragraph thereunder merely discusses certain things that are included in a quote, and says what was confirmed in an email. (Id.) This testimony would not be helpful to a jury, as a jury is equally capable of confirming what a quote and an email says. Moreover, Mr. Leach does not state that any part of the first paragraph is based on any particular piece of his experience. Therefore, the first paragraph will be excluded.

         The second paragraph under the first heading explains the meaning of the term “turnkey” in the calendering industry. (Id.) The Court sees no problem with this testimony, given that it is based upon Mr. Leach's knowledge of how the term is used. Moreover, the Court notes that it does not appear that plaintiff objects to this specific paragraph in its motion. (See ECF No. 160 at 8-9.) Therefore, the second paragraph will be allowed.

         In the third paragraph under the first heading, Mr. Leach states the parties' agreed upon price. (ECF No. 160-1 at 6.) However, the parties' agreed upon price is the essential dispute in this case. (See ECF No. 147 at 2-3.) And Mr. Leach provides no explanation for how he has been able to resolve this essential dispute. Notably, contrary to defendant's assertions in response (see ECF No. 164 at 6), Mr. Leach does not say that his opinion has been reached in light of his knowledge, how the term turnkey is used in the industry, or, even if those things were said, how they help resolve the dispute between these parties as to what they agreed. As a result, the third paragraph will be excluded.

         The second heading reads: “The documents in this transaction clearly show an agreement for the turnkey product.” (ECF No. 160-1 at 6.) The entirety of this heading and the paragraph below will be excluded, essentially for similar reasons discussed supra. Notably, again, Mr. Leach appears to have simply adopted the role of someone who has reviewed various documents and come to a determination as to what they may mean. Nowhere does Mr. Leach purport to explain how his knowledge or experience is relevant to his opinion, other than his non-expert knowledge and experience in being able to read. Because a jury is more than capable of performing the exact same role, the Court will not allow Mr. Leach to testify as to whether various documents show an agreement as to price.

         The third heading is: “Selling products at a turnkey rate is substantially different from other, standard business arrangements.” (ECF No. 160-1 at 6.) The Court sees no problem with this heading or the paragraph thereunder. Mr. Leach merely explains how providing a turnkey product is different to standard business models in the calendering industry. Given that Mr. Leach purportedly has experience in the industry and knowledge of providing turnkey products, this opinion is easily within his stated expertise. Contrary to plaintiff's assertion (see ECF No. 160 at 11-12), there is no indication that this opinion is premised upon an agreed price of $5.97 per pound, and the Court cannot understand why the opinion would need such a premise. In addition, the Court disagrees that the opinion has no factual support; it is based upon Mr. Leach's understanding ...

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