Zeigler v. Fisher-Price, Inc., No. C01-3089-PAZ (N.D. Iowa 7/1/2003), C01-3089-PAZ.

• Decision Date: 01 July 2003
• Docket Number: No. C01-3089-PAZ.,C01-3089-PAZ.
• Parties: THERESA M. ZEIGLER, individually; and THERESA M. ZEIGLER, as mother and next friend of MADISEN ZEIGLER, Plaintiff, v. FISHER-PRICE, INC., Defendant.
• Court: U.S. District Court — Northern District of Iowa

Page 1

THERESA M. ZEIGLER, individually; and THERESA M. ZEIGLER, as mother and next friend of MADISEN ZEIGLER, Plaintiff, v. FISHER-PRICE, INC., Defendant.

No. C01-3089-PAZ.

United States District Court, N.D. Iowa, Central Division.

July 1, 2003.

ORDER ON MOTIONS TO PRECLUDE EXPERT TESTIMONY AND TO BIFURCATE

PAUL ZOSS, Magistrate Judge.

I. INTRODUCTION

This matter is before the court on the motion of the defendant Fisher-Price, Inc. ("Fisher-Price") to bifurcate the trial of the plaintiff's punitive damage claim from the trial of the other issues in the case (Doc. No. 94), and Fisher-Price's motions (Doc. Nos. 95 & 96) to preclude the testimony of the plaintiff's experts pursuant to Daubert v. Merrill Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as extended by Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Fisher-Price filed its bifurcation motion on June 13, 2003, together with a supporting brief (Doc. No. 95). The plaintiff Theresa Zeigler ("Zeigler") filed a resistance to the motion on June 24, 2003 (Doc. No. 102). On June 16, 2003, Fisher-Price filed separate motions to preclude the testimony of Bruce Wandell and Eric Jackson. (Doc. Nos. 96 & 97) These motions were supported by briefs, and a binder containing several exhibits. (Id.) Zeigler filed resistances to these motions on June 25, 2003 (Doc. Nos. 103 & 104). The court held a hearing on the motions during the final pretrial conference on June 26, 2003. The plaintiff was represented at the hearing by Stephen F. Avery. Fisher-Price was represented by Cheryl A. Possenti and Kevin M. Reynolds.

This is a diversity case that arises from a fire which occurred on June 1, 2001. The fire damaged the home, garage, and personal property of Zeigler and her daughter, Madisen Zeigler. In this lawsuit, Zeigler claims the fire was caused by a defect in a "Barbie Sun Jammer Jeep," a toy vehicle given to Madisen for Christmas a few years earlier. At the time of the fire, the toy vehicle was parked in the garage. Zeigler claims the toy vehicle was plugged into a charger when the fire occurred. Zeigler proposes to call two experts to testify about the origin and cause of the fire, to-wit: Bruce Wandell ("Wandell") and Eric Jackson ("Jackson").

Fisher-Price seeks to bifurcate Zeigler's punitive damage claim from the trial of the other issues in the case. Fisher-Price also seeks to prohibit the testimony of Wandell and Jackson, claiming their opinions are not reliable under the Daubert standards. The court first will discuss the standards applicable to Fisher-Price's Daubert motions. The court next will examine the particular testimony Fisher-Price seeks to exclude from the trial, and apply the applicable law to determine whether the testimony should be excluded. The court then will consider the motion to bifurcate

II. LAW APPLICABLE TO ADMISSIBILITY OF EXPERT TESTIMONY

A. Expert Testimony in General

In a diversity case in federal court, the question of whether expert testimony is admissible is generally a matter governed by federal, rather than state, law. Clark v. Heidrick, 150 F.3d 912, 914 (8th Cir. 1998) (citing Fox v. Dannenberg, 906 F.2d 1253, 1258 (8th Cir. 1990)); see Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001) ("Wheeling").

In Daubert, the Supreme Court explained that under the Federal Rules of Evidence, and particularly Rule 702, a trial judge is charged with a gate-keeping responsibility to ensure all expert testimony or evidence admitted at trial is relevant, reliable, and "`will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Daubert, 509 U.S. at 589, 113 S.Ct. at 2795 (quoting Fed.R.Evid. 702; emphasis removed). The Court noted an expert witness "is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. . . . Presumably, this relaxation of the usual requirement of firsthand knowledge . . . is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796.

When proposed expert testimony is scientific in nature, the trial judge must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. Although the Court expressly declined to set out a definitive checklist or test for making this determination, the Court noted several key areas of inquiry that ordinarily will apply "in determining whether a theory or technique is scientific knowledge that will assist the trier of fact," including: (1) whether the theory or technique "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 the existence and maintenance of standards controlling the technique's operation"; and (4) whether the theory or technique has obtained general acceptance within the community. Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2796-97.

The Court observed that this inquiry is flexible. "Its overarching subject is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 594-95, 113 S.Ct. at 2797. The trial court's ultimate task is to ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands." Daubert, 509 U.S. at 597, 113 S.Ct. at 2799. See United States v. Boswell, 270 F.3d 1200, 1204 (8th Cir. 2001)

In Kumho, the Court extended the Daubert inquiry to all types of expert testimony, not just to scientific testimony. The Court noted that in the trial court's inquiry into the relevance and reliability of expert testimony, the trial court may consider the factors which the Daubert Court suggested might be relevant. Noting that in some cases an expert's personal knowledge or experience may be the focus, as opposed to the scientific foundation of an opinion, the Court held the Daubert factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho, 526 U.S. at 150, 119 S.Ct. at 1175 (citation omitted). The circumstances of each particular case will determine the precise nature of the inquiry to be undertaken by the trial court in performing its gate-keeping function under Daubert. Id.

The Kumho Court explained further, "The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable." Kumho, 526 U.S. at 152, 119 S.Ct. at 1176 (emphasis by the Court).

In its capacity as gatekeeper, the trial court is to "separate[] expert opinion evidence based on `good grounds' from subjective speculation that masquerades as scientific knowledge." Glastetter v. Novartis Phar. Corp., 252 F.3d 986, 989 (8th Cir. 2001). Although the trial court has substantial latitude to determine whether offered expert testimony is reliable, the court should keep in mind that Rule 702 reflects a liberalized approach to the admissibility of expert testimony. See United States v. Larry Reed & Sons Partnership, 280 F.3d 1212, 1215 (8th Cir. 2002) ("Trial courts have substantial latitude to determine whether specific expert testimony is reliable, and they may consider some or all of the factors listed in Daubert . . . when evaluating reliability."); Lloyd v. American Airlines, Inc. (In re Air Crash at Little Rock, Ark.), 291 F.3d 503, 514 (8th Cir. 2002) (same); Lauzon v. Senco Prods., Inc., 270 F.3d 681, 685-86 (8th Cir. 2001) ("Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony," citing Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir. 1999)); Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991) (Rule 702 is a rule of admissibility rather than exclusion). Trial courts should apply the principle that "[e]xpert testimony is admissible if it is reliable and will help the jury understand the evidence or decide a fact in issue." Hartley v. Dillard's, Inc., 310 F.3d 1054, 1060 (8th Cir. 2002). "[D]oubts regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility." Miles v. Gen. Motors Corp., 262 F.3d 720, 724 (8th Cir. 2001) (citing Heidrick, 150 F.3d at 915). See Lauzon, 270 F.3d at 687 n. 2 (citing numerous authorities). A determination by a trial court to admit expert testimony is reviewed for abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Giles v. Miners, Inc., 242 F.3d 810, 812 (8th Cir. 2001).

In Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929 (8th Cir. 2001), the court emphasized that the focus under Daubert must be on the expert's principles and methodology, not the conclusions they generate. See also United States v. Dico, Inc., 266 F.3d 864, 869 (8th Cir. 2001) ("Admissible expert testimony must be grounded upon scientifically valid reasoning or methodology.") The Bonner court explained:

"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. Only...