United States District Court, E.D. Louisiana
EARL K. LAWRENCE, JR.
GREAT LAKES DREDGE & DOCK COMPANY, L.L.C. OF LOUISIANA ET AL.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
the Court is an untimely motion in limine filed by
defendant, who asks the Court to exclude two of
plaintiff's designated experts from testifying at trial.
Plaintiff opposes the motion.
702 of the Federal Rules of Evidence governs the
admissibility of expert witness testimony. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993);
United States v. Hitt, 473 F.3d 146, 148 (5th Cir.
2006). Rule 702 provides:
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.
qualify as an expert, ‘the witness must have such
knowledge or experience in [his] field or calling as to make
it appear that his opinion or inference will probably aid the
trier in his search for truth.'” United States
v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting
United States v. Bourgeois, 950 F.2d 980, 987 (5th
Cir. 1992)). Additionally, Rule 702 states that an expert may
be qualified based on “knowledge, skill, experience,
training, or education.” Hicks, 389 F.3d at
524; see also Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 147 (1999) (discussing witnesses whose
expertise is based purely on experience).
district court should refuse to allow an expert witness to
testify if it finds that the witness is not qualified to
testify in a particular field or on a given subject.”
Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)
(quoting Wilson v. Woods, 163 F.3d 935, 937 (5th
Cir. 1999)). However, “Rule 702 does not mandate that
an expert be highly qualified in order to testify about a
given issue.” Id. “Differences in
expertise bear chiefly on the weight to be assigned to the
testimony by the trier of fact, not its admissibility.”
Id.; see also Daubert, 509 U.S. at 596.
“provides the analytical framework for determining
whether expert testimony is admissible under Rule 702.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th
Cir. 2002). Both scientific and nonscientific expert
testimony is subject to the Daubert framework, which
requires a trial court to conduct a preliminary assessment to
“determine whether the expert testimony is both
reliable and relevant.” Burleson v. Tex. Dep't
of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004);
see also Kumho Tire, 526 U.S. at 147.
number of nonexclusive factors may be relevant to the
reliability inquiry, including: (1) whether the technique has
been tested, (2) whether the technique has been subjected to
peer review and publication, (3) the technique's
potential error rate, (4) the existence and maintenance of
standards controlling the technique's operation, and (5)
whether the technique is generally accepted in the relevant
scientific community. Burleson, 393 F.3d at 584. The
reliability inquiry must remain flexible, however, as
“not every Daubert factor will be applicable
in every situation; and a court has discretion to consider
other factors it deems relevant.” Guy v. Crown
Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see
also Runnels v. Tex. Children's Hosp. Select Plan,
167 Fed. App'x 377, 381 (5th Cir. 2006) (“[A] trial
judge has ‘considerable leeway' in determining
‘how to test an expert's reliability.'”).
“Both the determination of reliability itself and the
factors taken into account are left to the discretion of the
district court consistent with its gatekeeping function under
[Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301
(5th Cir. 2000).
respect to determining the relevancy of an expert's
testimony pursuant to Rule 702 and Daubert, the
proposed testimony must be relevant “not simply in the
way all testimony must be relevant [pursuant to Federal Rule
of Evidence 402], but also in the sense that the expert's
proposed opinion would assist the trier of fact to understand
or determine a fact in issue.” Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
There is no more certain test for determining when experts
may be used than the common sense inquiry whether the
untrained layman would be qualified to determine
intelligently and to the best degree the particular issue
without enlightenment from those having a specialized
understanding of the subject involved in the dispute.
Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir.
2003) (quoting Fed.R.Evid. 702 advisory committee's
Court applies a preponderance of the evidence standard when
performing its gatekeeping function under Daubert.
See Daubert, 509 U.S. at 592 n.10. The Court is not
bound by the rules of ...