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Tovares v. Gallagher Bassett Services, Inc.

United States District Court, D. South Dakota, Western Division

September 13, 2019

ANNIE TOVARES, Plaintiff,
v.
GALLAGHER BASSETT SERVICES, INC., AND PRAETORIAN INSURANCE COMPANY, Defendants.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Defendants filed a motion together with a supporting brief to strike plaintiff's expert witness, Elliott Flood. (Dockets 73 & 74). Plaintiff filed a brief together with five exhibits in resistance to defendants' motion. (Dockets 76 & 76-1 through 76-5). Defendants filed a reply brief in support of their motion. (Docket 77). For the reasons stated below, defendants' motion to strike is denied.

         ANALYSIS

         Plaintiff Annie Tovares filed an action against defendants Gallagher Bassett Services, Inc., and Praetorian Insurance Company alleging insurance company bad faith and misrepresentation in violation of South Dakota law. (Docket 1). Defendants filed separate amended answers to plaintiff's complaint.[1] (Dockets 85-86). For purposes of this order, the court will incorporate the statement of undisputed facts contained in the March 30, 2019, order unless otherwise indicated. (Docket 87 at pp. 4-14).

         Rule 702 of the Federal Rules of Evidence governs testimony by expert witnesses and states:

         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. Rule 703 describes the bases for expert testimony.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Fed. R. Evid.703.

         As a preliminary matter, “[t]he proponent of the expert testimony must prove its admissibility by a preponderance of the evidence.” Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993); see also Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006) (same).

         The trial judge “must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”[2] Daubert, 509 U.S. at 589. The subject of an expert's testimony must be scientific, technical, or other specialized knowledge. Id. at 589-90. This requirement “establishes a standard of evidentiary reliability.”[3] Id. at 590; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (noting it is the word “knowledge” in Rule 702 that “ ‘establishes a standard of evidentiary reliability' ”) (citing Daubert, 509 U.S. at 589-90).

         Although Daubert deals specifically with expert testimony based on scientific knowledge, the Supreme Court extended the principles in Daubert to all expert testimony. Kumho, 526 U.S. at 141. “Proposed testimony must be supported by appropriate validation―i.e., ‘good grounds,' based on what is known.” Id.

         Expert evidence is unreliable, and thus inadmissible, “if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case.” United States v. Bailey, 571 F.3d 791, 803 (8th Cir. 2009); see also United States v. Two Elk, 536 F.3d 890, 904 (8th Cir. 2008) (“ ‘[N]othing in Rule 702, Daubert, or its progeny requires that an expert resolve an ultimate issue of fact to a scientific absolute in order to be admissible.' ”) (quoting Kudabeck v. Kroger Co., 338 F.3d 856, 861 (8th Cir. 2003)).

         Rule 702 requires expert testimony to be relevant, that is, to “ ‘assist the trier of fact to understand the evidence or to determine a fact in issue.' ” Daubert, 509 U.S. at 591. “Rule 702's ‘helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 591-92. The issue is one of does the testimony “fit.” Id. at 591. “ ‘Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.” Id.

         In sum, “[f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”[4] Id. at 592. “This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93.

         To make this determination, a district court may evaluate one or all of a number of non-exclusive factors. Those include whether a theory or technique

(1) can be (and has been) tested;
(2) has been subjected to peer review and publication;
(3) [has a] known or potential error rate . . . and the existence and maintenance of standards controlling the ...

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