McCoy v. Whirlpool Corp.

214 F.R.D. 646, 55 Fed. R. Serv. 3d 740, 2003 U.S. Dist. LEXIS 6901, 2003 WL 1922951
District Court, D. Kansas·Decided April 16, 2003·No. Civ.A. No. 02-2064-KHV·Published·Cited by 19 cases

Opinion

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on Plaintiffs’ Daubert Motion To Exclude Opinion Testimony Of Defendants’ Expert Richard Dyer (Doe. # 105), Plaintiffs’ Daubert Motion To Exclude Opinion Testimony Of Defendants’ Rebuttal Expert Richard Dyer (Doc. # 107), and Plaintiffs’ Daubert Motion To Exclude Testimony And Reports Of Defendants’ Expert Roger Owens (Doc. # 109), all filed March 10, 2003. For reasons stated below, all three motions are overruled.

In various capacities, James B. and Lorray McCoy have filed separate suits for property damage arising out of a fire at their home on February 16, 2000. Plaintiffs allege that the fire originated in a Kenmore “New Generation” dishwasher which they purchased from Sears, Roebuck and Company (“Sears”) on August 26, 1996. Plaintiffs claim that Sears and Whirlpool Corporation (“Whirlpool”), which manufactured the dishwasher, are liable under theories of strict liability, negligence, misrepresentation, breach of express and implied warranty, and gross, wanton and reckless conduct. Defendants deny that the fire originated in the dishwasher and argue that it was not defective or unreasonably dangerous.

Defendants have designated various experts to testify about the cause and origin of the fire. Plaintiffs ask the Court to exclude reports and testimony by two of them, Richard A. Dyer and Roger L. Owens.

Analysis

I. Plaintiffs’ Motion To Exclude Testimony Of Richard Dyer

Plaintiffs ask the Court to exclude testimony from Richard Dyer, claiming that his reports do not meet the requirements of Rule 26(a)(2)(B), Fed.R.Civ.P., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), or Rule 702, Fed.R.Evid. Specifically, plaintiffs claim that Dyer’s reports do not establish his qualifications to testify to the opinions expressed, provide the “principles and methods” which he used to form his opinions, explain how he applied the “principles and methods” to the facts of the case, or demonstrate that his opinions will assist the trier of fact. Defendants argue that plaintiffs’ motions are technical objections which are untimely because they were not made within 11 days of disclosure, as required by the scheduling order. Defendants also argue that even if plaintiffs’ objections are timely, Dyer’s reports comply with Rule 26(a)(2)(B) and are admissible.

A. Timeliness Of Rule 26(a)(2) Objections

Rule 26(a)(2)(B) provides that an expert’s report:

shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the.witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

In the scheduling order, Magistrate Judge David J. Waxse ordered that except for objections under Rules 702-705, Daubert, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), or similar case law, objections to expert disclosures be served within 11 days after service of the disclosures. Judge Waxse ordered that such objections “be confined to technical objections related to the sufficiency of the written expert disclosures (e.g., whether all of the information required by Rule 26(a)(2) [649] has been provided, such as lists of prior testimony and publications).” Scheduling Order (Doc. # 13) filed June 12, 2002 at 3. On December 6, 2002, Judge Waxse imposed the same requirement with regard to rebuttal experts. Order (Doc. # 53) at 2. Any objection not timely asserted was deemed waived unless excused by the Court for good cause shown. Order (Doc. # 53) at 2; Scheduling Order (Doc. # 13) at 4.

Plaintiffs did not timely object to the sufficiency of the Dyer reports, or timely assert that the reports lacked information required by Rule 26(a)(2). Plaintiffs’ motions, which were not filed until March 10, 2003, are insufficient to preserve such objections. Plaintiffs have not shown good cause why the delay should be excused, and any such objections are therefore waived.

Plaintiffs argue that their motions attack the substantive content of the Dyer reports, and not their facial sufficiency under Rule 26(a)(2)(B). The purported distinction, however, is illusory. Plaintiffs’ so-called “substantive” challenges are simple variations on one theme: that the reports do not expressly spell out in sufficient detail the facts and scientific methodologies which defendants would be required to introduce into evidence to overcome a Daubert challenge at an evi-dentiary hearing or at trial (e.g., how the expert is qualified to express his stated opinions, how his methodology is generally accepted, how the expert formulated his opinions, etc.). All such objections go to the form of the expert reports, and they stop well short of advancing a colorable argument that Dyer is not qualified as an expert, that his methodologies are not generally accepted, etc., etc. As a result, plaintiffs’ motions clearly implicate Rule 26(a)(2)(B) and— though plaintiffs stop short of invoking sanctions — perhaps Rule 37(c)(1).1 It is much less clear that plaintiffs’ motions implicate Daubert in any substantive way.

For these reasons, the Court construes plaintiffs’ motions as attacks on the facial sufficiency of the Dyer reports and finds that plaintiffs have waived such objections. For reasons stated below, the Court also finds that plaintiffs’ motions are without merit on substantive grounds and that they should be overruled without further hearing.

B. Rule 702 And Daubert Objections

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McCoy v. Whirlpool Corp., 214 F.R.D. 646, 55 Fed. R. Serv. 3d 740, 2003 U.S. Dist. LEXIS 6901, 2003 WL 1922951 (D. Kan. 2003).

214 F.R.D. 646 (McCoy v. Whirlpool Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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