United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.
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). The Court addresses each motion
infra, and makes the following findings.
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
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.
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).
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).
The Leach Motion
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
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.
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.
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
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.
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 ...