Watkins v. Lawrence Cnty.

Decision Date19 May 2020
Docket NumberCase No. 3:17-cv-00272-KGB
CourtU.S. District Court — District of Kansas

Before the Court is a motion to exclude Dr. Shawkat Ali filed by plaintiffs Cleo Watkins; Pyles Family Farms, LLC; Victor Hutcherson; Alevlla Hutcherson; Helen Knight; Michael Watkins; Betty Watkins; and George Carney and a motion to exclude expert testimony filed by defendants Lawrence County, Arkansas; John Thomison, in his official capacity as County Judge of Lawrence County; and William Powell, Donald Richey, Lloyd Clark, Heath Davis, Ernest Briner, Ronald Ingram, Tracy Moore, Kenney Jones, and Alex Latham, in their official capacities as members of the Lawrence County Quorum Court (Dkt. Nos. 46, 51). Both sides have filed responses in opposition to the respective motions (Dkt. Nos. 58, 60). For the following reasons, the Court denies the motions (Dkt. Nos. 46, 51).

I. Legal Standard

Federal Rule of Evidence 702 provides that:

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 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. The rule clearly is one of admissibility rather than exclusion." Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations omitted).

In determining whether expert testimony should be admitted, the district court must decide if the expert's testimony and methodology are reliable, relevant, and can be applied reasonably to the facts of the case. David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012); Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010). Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court must conduct this initial inquiry as part of its gatekeeping function. Watson, 668 F.3d at 1015. The Court must be mindful that "Daubert does not require proof with certainty." Sorensen By & Through Dunbar v. Shaklee Corp., 31 F.3d 638, 650 (8th Cir. 1994). Rather, it requires that expert testimony be reliable and relevant. Id. "The inquiry as to the reliability and relevance of the testimony is a flexible one designed 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.'" Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

The proponent of the expert testimony has the burden of establishing by a preponderance of the evidence the admissibility of the expert's testimony. Id. at 757-58. To satisfy the reliability requirement for admission of expert testimony, "the party offering the expert testimony must show by a preponderance of the evidence that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid." Barrett, 606 F.3d at 980 (internal quotation marks and citation omitted). To satisfy the relevancerequirement for the admission of expert testimony, "the proponent must show that the expert's reasoning or methodology was applied properly to the facts at issue." Id. (citing Marmo, 457 F.3d at 757).

The Court examines the following four non-exclusive factors when determining the reliability of an expert's opinion: (1) "whether it can be (and has been) tested"; (2) "whether the theory or technique has been subjected to peer review and publication"; (3) "the known or potential rate of error"; and (4) "[the method's] 'general acceptance.'" Presley v. Lakewood Eng'g & Mfg. Co., 553 F.3d 638, 643 (8th Cir. 2009) (quoting Daubert, 509 U.S. at 593-94). These factors are not exhaustive or limiting, and the Court must use the factors as it deems fit to tailor an examination of the reliability of expert testimony to the facts of each case. Id. In addition, the Court can weigh whether the expertise was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case. Id. While weighing these factors, the Court must continue to function as a gatekeeper who separates expert opinion evidence based on good grounds from subjective speculation that masquerades as scientific knowledge. Id.

The Court recognizes that experts may, at times speculate, "but too much [speculation] is fatal to admission." Grp. Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 760 (8th Cir. 2003) (citations omitted). Thus, speculative expert testimony with no basis in the evidence is inadmissible. Weisgram v. Marley Co., 169 F.3d 514, 518-19 (8th Cir. 1999), aff'd, 528 U.S. 440 (2000) (reversing a district court for allowing a witness who was qualified as a fire investigator "to speculate before the jury as to the cause of the fire by relying on inferences that have absolutely no record support").

Likewise, expert opinion is inadmissible if its sole basis is studies that do not provide a sufficient foundation for the opinion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 145 (1997). When studies form a basis for an expert's opinion, then, the Court must determine if there is an adequate basis for the experts' opinion and whether there is "too great an analytical gap between the data and the opinion proffered." See id. at 146.

"As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination." Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (internal citation omitted). "Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." Id. at 929-30 (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1996)).

II. Defendants' Motion To Exclude Expert Testimony

Defendants move the Court to exclude expert testimony of Marc Johnson and Jim Grisham pursuant to Federal Rules of Evidence 702 and 703 (Dkt. No. 51, at 1). Defendants state that this motion is based upon erroneous factual conclusions adopted for the purpose of Mr. Johnson's opinions (Id., ¶ 1). Defendants also argue that Mr. Grisham's opinion and report should be excluded because he attempts to quantify damages based solely on "flood days" given him per Mr. Johnson's report (Id., ¶ 9). Defendants have submitted as exhibits for the Court's consideration Mr. Johnson's expert report; a transcript of Mr. Johnson's deposition; Mr. Grisham's expert report; a transcript of Mr. Grisham's deposition; a May 2003 permit letter; an affidavit from Brad Smithee, the District Engineer of District 10, Arkansas Department of Transportation ("ADT"); the Cache River watershed-based management plan; precipitation and events exceeding half an inch for Mr. Johnson's "flood days"; and an affidavit from Judge Thomison (Dkt. Nos. 51-1, 51-2, 51-3, 51-4,51-5, 51-6, 51-7, 51-8, 51-9). Plaintiffs argue that Mr. Johnson and Mr. Grisham's expert opinions more than meet minimum requirements for expert opinion testimony under Federal Rule of Evidence 702 and the Daubert standard (Dkt. No. 58, at 2). First, the Court will review the submitted exhibits to determine Mr. Johnson and Mr. Grisham's anticipated testimony. Second, the Court will evaluate the admissibility of this anticipated testimony under Federal Rule of Evidence 702.

A. Mr. Johnson's Opinions And Testimony

Mr. Johnson works as a professional engineer at FTN Engineers in Little Rock, Arkansas (Dkt. No. 51, ¶ 1). Mr. Johnson's report is directed toward the structure of the Lawrence County Road 717 Bridge and its ability to allow free flow of water from the stream (Id., ¶ 2). Mr. Johnson's report is dated May 8, 2019 (Dkt. No. 51-1). In his report, Mr. Johnson provides his professional opinion in this matter based on the following four factors: (1) review of materials submitted to him by plaintiffs in this case and other publicly available information; (2) field reconnaissance of the area; (3) numerical hydraulic modeling done under his supervision; and (4) his education and experience as a Civil Engineer specializing in the areas of hydraulics and hydrology within the field of Civil Engineering (Id., at 5).

Mr. Johnson offers six opinions in his report. First, Mr. Johnson opines that the five culverts together in the new bridge with culverts ("the culvert bridge") provide less than 40% of the cross-sectional area available for flow than the old timber bridge crossing ("the wooden bridge") did, allows less than 30% of the water to flow downstream than the wooden bridge did, and constricts the flow that can pass downstream in the West Cache River Ditch, effectively damming water up upstream of the Lawrence County Road 717 crossing (Id., at 12). Second, Mr. Johnson opines that the damming up of the West Cache River Ditch caused by the culvert bridgehas caused sediment to deposit in the upstream-most portion of the West Cache River Ditch, reducing the size of the channel near its divergence with the East Cache River Ditch (Id., at 14). Third, Mr. Johnson opines that the culvert bridge crossing of Lawrence County Road 717 acts as a dam, backing water...

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