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Priester v. Futuramic Tool & Engineering Co.

United States District Court, D. South Carolina, Charleston Division

January 18, 2017

LISA J. PRIESTER, individually, and as Personal Representative of the Estate of David A. Priester, Jr., Plaintiff,



         This matter comes before the court on defendants Futuramic Tool & Engineering Company and Capital Welding Inc.'s (collectively, “Futuramic”)[1] Motion to Strike or Exclude the Affidavits of Priester's Experts Daryl Ebersole (“Ebersole”) and Bartley Eckhardt (“Eckhardt”), ECF No. 87, and defendant SAR Automation, L.P.'s (“SAR”) Motion to Exclude Ebersole, ECF No. 89. For the reasons set forth below, the court grants Futuramic's Motion to Strike or Exclude the Affidavits of Ebersole and Eckhardt and denies SAR's Motion to Exclude Ebersole.

         I. BACKGROUND

         This litigation arises out of a fatal accident at the Boeing manufacturing facility in North Charleston, South Carolina. ECF No. 75 at 1. On March 18, 2013, the decedent, David Priester (“Mr. Priester”)[2] was working on an elevated work platform (“Cell 90”) when he fell through an opening eighteen feet above the concrete floor. Id. Cell 90 was designed with eighteen movable sliders which extend at varying lengths to conform to the curving nature of the body of the aircraft barrel. Id. at 4-5. The design of Cell 90 called for the sliders to be no more than three inches from the aircraft barrel. Id. At the time of the incident, Mr. Priester and four other Boeing employees were working on Cell 90, and following the last shift break attempted to extend the sliders to continue working on the aircraft. However, Slider #2 did not extend the entire length to the aircraft barrel, leading to a gap between the end of Slider #2 and the barrel of the aircraft. ECF No. 88 at 3. Mr. Priester and the other Boeing employees continued to work on the platform, and after working for approximately one hour on Cell 90, Mr. Priester fell through the gap between Slider #2 and the aircraft barrel. ECF No. 88 at 4. Mr. Priester later died as a result of the injuries sustained from the fall. ECF No. 75 at 1. Priester is the widow of Mr. Priester and the personal representative of his estate. Id.

         Priester filed the present suit on March 24, 2014 against Futuramic, Capital Welding, McMaster-Carr Supply Company, and Intec Automated Controls, Inc. She asserts strict liability claims against Futuramic, Capital, and McMaster-Carr, and causes of action for negligence, loss of consortium and punitive damages against all defendants.[3] ECF No. 88 at 2. On September 17, 2014, Priester amended her complaint to add SAR as a defendant. ECF No. 88 at 2.

         Priester identified a number of experts to testify in the case. The two motions before the court concern two of those experts, Daryl L. Ebersole (“Ebersole”) and Bartley J. Eckhardt, P.E. (“Eckhardt”). Futuramic filed a motion to strike or exclude on September 6, 2016, arguing that the affidavits of Eckhardt (ECF No. 82, Ex. 4) and Ebersole (ECF No. 82, Ex. 5) should be excluded because they constitute improper supplementation under Federal Rule of Civil Procedure 26 and therefore are untimely. ECF No. 87. Priester responded on September 23, 2016, ECF No. 94, and Futuramic replied on September 30, 2016, ECF No. 95. SAR filed a motion to exclude on September 13, 2016, arguing that Ebersole's testimony should be excluded under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). ECF No. 89. Priester filed a response on October 21, 2016, ECF No. 100, to which SAR replied on November 4, 2016, ECF No. 101. Both motions have been fully briefed and are now ripe for the court's review.

         II. STANDARD

         A. Federal Rule of Evidence 702

         Federal Rule of Evidence 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.

         District courts serve as gatekeepers for expert testimony. The court has a “special obligation” to ensure that expert testimony is relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

         Under Daubert, the court must address two questions: first, whether the expert's testimony is based on “scientific knowledge”; and second, whether the testimony “will assist the trier of fact to understand or determine a fact in issue.” 509 U.S. at 592. The first question is answered by assessing “whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93. Several nondispositive factors should be considered in determining the reliability of a particular scientific theory or technique: whether it (1) can be and has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error; and (4) has attained general acceptance in the pertinent scientific community. See id. at 593-94. In considering these factors, the focus “must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 595. The factors are not exclusive; what factors are relevant to the analysis “depends upon the particular circumstances of the particular case at issue.” Kumho Tire, 526 U.S. at 150.

         The second inquiry “goes primarily to relevance.” Daubert, 509 U.S. at 591. Relevance is determined by ascertaining whether the testimony is sufficiently tied to the facts of the case such that it will aid the jury in resolving a factual dispute. Id. at 593. “A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702, Advisory Committee's Note to 2000 Amendments. “Daubert did not work a ‘seachange over federal evidence law, ' and ‘the trial court's role as gatekeeper is not intended to serve ...

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