United States District Court, W.D. Oklahoma
SOUTHAMPTON, LTD. and SOUTHWEST REINSURANCE, INC., Plaintiffs,
VAHID SALALATI, GREGORY LUSTER, and ROGER ELY, Defendants.
MILES-LaGRANGE UNITED STATES DISTRICT JUDGE
the Court is plaintiffs' Motion to Strike the Expert
Report of David Payne and to Strike or Limit the Opinions to
Be Offered at Trial, filed June 30, 2017. On July 21, 2017,
defendants filed their response, and on July 25, 2017,
plaintiffs filed their reply. Based upon the parties'
submissions, the Court makes its determination.
Payne was retained by defendants as an expert regarding
certain financial elements related to this case including
impaired capital, inadequate capital, and insolvency.
Plaintiffs now move this Court to strike Mr. Payne's
expert report and to strike or limit the opinions to be
offered by Mr. Payne at trial.
Rule of Evidence 702 governs the admissibility of expert
testimony based upon scientific, technical, or other
specialized knowledge. It 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), the Supreme Court held that Rule 702
requires the trial court to “ensure that any and all
scientific testimony or evidence admitted is not only
relevant, but reliable.” 509 U.S. at 589. In Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), the
Supreme Court concluded that “Daubert's
general holding - setting forth the trial judge's general
‘gatekeeping' obligation - applies not only to
testimony based on ‘scientific' knowledge, but also
to testimony based on ‘technical' and ‘other
specialized' knowledge.” 526 U.S. at 141. With
respect to the all-important reliability determination, the
Supreme Court further concluded that “a trial court
may consider one or more of the more specific
factors that Daubert mentioned when doing so will
help determine that testimony's reliability. But, as the
Court stated in Daubert, the test of reliability is
‘flexible, ' and Daubert's list of
specific factors neither necessarily nor exclusively applies
to all experts or in every case.” Id.
(emphasis in original).
“Daubert factors” that may be
considered in assessing the reliability of proposed expert
testimony are: (1) whether the theory or technique employed
by the expert in formulating his expert opinion can be or has
been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) whether, with
respect to a particular technique, there is a high known or
potential rate of error; (4) whether standards control
operation of the technique; and (5) whether the theory or
technique is generally accepted within the relevant
professional community. Id. at 149-50 (quoting
Daubert, 509 U.S. at 592-94). In Kumho
Tire, the Court recognized that in some cases “the
relevant reliability concerns may focus upon personal
knowledge or experience, ” rather than scientific
foundations. Id. at 150. In such cases, the trial
court may focus on alternative factors that are better-suited
to the specific type of expertise at issue. Id. at
150-52. “The objective of [the gatekeeping] requirement
is to ensure the reliability and relevancy of expert
testimony. It is to make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.” Id. at 152.
“[T]he trial judge [has] considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable.”
when expert testimony is challenged under Daubert,
the burden of proof regarding admissibility rests with the
party seeking to present the testimony. Truck Ins. Exch.
v. Magnetek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004).
“The focus [of the inquiry] . . . must be solely on
principles and methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 595.
“However, an expert's conclusions are not immune
from scrutiny: A court may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered.” Dodge v. Cotter Corp., 328 F.3d
1212, 1222 (10th Cir. 2003) (internal quotations and citation
omitted). Additionally, “nothing in either
Daubert or the Federal ...