Ash Grove Cement Co. v. Employers Insurance of Wausau

246 F.R.D. 656, 74 Fed. R. Serv. 1166, 2007 U.S. Dist. LEXIS 78560, 2007 WL 3071877
CourtDistrict Court, D. Kansas
DecidedOctober 19, 2007
DocketNo. 05-2339-JWL
StatusPublished
Cited by7 cases

This text of 246 F.R.D. 656 (Ash Grove Cement Co. v. Employers Insurance of Wausau) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ash Grove Cement Co. v. Employers Insurance of Wausau, 246 F.R.D. 656, 74 Fed. R. Serv. 1166, 2007 U.S. Dist. LEXIS 78560, 2007 WL 3071877 (D. Kan. 2007).

Opinion

[659]*659 MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

In this diversity action, plaintiff Ash Grove Cement Company (Ash Grove) seeks to recover under an insurance policy issued by defendant Employers Insurance of Wausau (Wausau). The matter comes before the Court on Ash Grove’s motions to exclude testimony from Wausau’s expert witnesses, Jay Warshawsky (Doc. # 128), Ghattas Bitar (Doc. # 135), and Rick Huntley (Doc. # 141); and Wausau’s motions to exclude testimony from Ash Grove’s expert witnesses, Eric Drews (Doc. # 139) and Roger Harris (Doc. # 140). For the reasons set forth below, the motions relating to Messrs. Huntley, Drews, and Harris are denied; and the motions relating to Messrs. Warshawsky and Bitar are granted in part and denied in part.

I. Background

Ash Grove operates a cement manufacturing plant located in Chanute, Kansas, which Wausau insured. In 2001, Ash Grove discovered that the protective paint coating on the interior surfaces of a baghouse at the plant had suffered damage, including blistering, cracking and bubbling. In this action, Ash Grove seeks to recover from Wausau under the insurance policy for damages relating to the replacement of the baghouse coating.

The parties espouse two differing theories regarding the cause of the damage to the baghouse coating. Ash Grove alleges that on September 10, 2001, an employee cut a cable connected to a control panel for various equipment; that the cutting caused a short circuit in the cable’s wires; that the short circuit caused some of the equipment to shut down, including equipment that cooled gases entering the baghouse in the cement manufacturing process; that the kiln ID fan did not shut down with the other equipment and continued to operate for several minutes; that the continued operation of the ID fan and the shutdown of the other equipment caused the temperature of gases on their way to the baghouse to rise to over 900 degrees Fahrenheit; that this high temperature excursion caused temperatures in the baghouse to exceed the 600-degree specified limit for the baghouse coating; and that the coating consequently suffered damage.

Wausau alleges that the baghouse coating was applied too thick, in excess of specifications, and that the coating therefore failed after it was cured by exposure to normal high temperatures after operations in the baghouse began in 2001. Wausau therefore alleges that the damage to the coating was caused not by the high temperature excursion experienced on September 10, 2001, but by the misapplication of the coating.

The parties have designated expert witnesses expected to offer opinions generally concerning the following subjects: the design and operation of the facility and its processes; whether the cutting of the cable caused an electrical event, the equipment shutdowns, and the high temperature excursion experienced on September 10, 2001; the temperatures reached in the baghouse on that date; and the damage to the coating and its cause. Each party has now moved to exclude the expert testimony offered by the other.

II. Expert Testimony Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court instructed that district courts are to perform a “gatekeeping” role concerning the admission of expert scientific testimony. See id. at 589-93, 113 S.Ct. 2786; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles [660]*660and methods reliably to the facts of the case.

Fed.R.Evid. 702.

In order to determine that an expert’s opinions are admissible, this Court must undertake a two-part analysis: first, the Court must determine that the witness is qualified by “knowledge, skill, experience, training, or education” to render the opinions; and second, the Court must determine “whether the witness’ opinions are ‘reliable’ under the principles set forth” in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.2001). The rejection of expert testimony is the exception rather than the rule. See Fed.R.Evid. 702 advisory committee notes.

To qualify as an expert, the expert must possess such “knowledge, skill, experience, training, or education” in the particular field as to make it appear that his or her opinion would rest on substantial foundation and would tend to aid the trier of fact in its search for the truth. LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). In determining whether the proffered testimony is reliable, the Court assesses whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue. See Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The Daubert Court listed four factors relevant to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error associated with the theory; and (4) whether the theory has attained widespread or general acceptance. Id. at 592-94, 113 S.Ct. 2786. In Kumho Tire, however, the Supreme Court emphasized that these four factors are not a “definitive checklist or test” and that a court’s inquiry into reliability must be “tied to the facts of a particular case.” Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience,” rather than the Daubert factors and scientific foundations. Id. (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir.2004)). The district court has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Id. at 152, 119 S.Ct. 1167.

III. Ash Grove’s Motion to Exclude—Jay Warshawsky (Doc. #

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246 F.R.D. 656, 74 Fed. R. Serv. 1166, 2007 U.S. Dist. LEXIS 78560, 2007 WL 3071877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ash-grove-cement-co-v-employers-insurance-of-wausau-ksd-2007.