United States District Court, D. South Carolina, Charleston Division
LISA J. PRIESTER, individually, and as Personal Representative of the Estate of David A. Priester, Jr., Plaintiff,
FUTURAMIC TOOL & ENGINEERING COMPANY; CAPITAL WELDING, INC.; MCMASTER-CARR SUPPLY COMPANY; INTEC AUTOMATED CONTROLS, INC.; and SAR AUTOMATION, L.P., Defendants.
C. NORTON, UNITED STATES DISTRICT JUDGE
matter comes before the court on defendants Futuramic Tool
& Engineering Company and Capital Welding Inc.'s
(collectively, “Futuramic”) 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.
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”) 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
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. ECF No. 88 at 2. On September 17,
2014, Priester amended her complaint to add SAR as a
defendant. ECF No. 88 at 2.
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
Federal Rule of Evidence 702
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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).
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.
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 ...