Mickelsen v. Aramark Sports & Entertainment Services

CourtDistrict Court, D. Utah
DecidedApril 13, 2021
Docket4:18-cv-00072
StatusUnknown

This text of Mickelsen v. Aramark Sports & Entertainment Services (Mickelsen v. Aramark Sports & Entertainment Services) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mickelsen v. Aramark Sports & Entertainment Services, (D. Utah 2021).

Opinion

THE UNITED STATES DISTRICT COURT THE DISTRICT OF UTAH

STACY MICKELSEN, KIRK R. MICKELSEN, and MEMORANDUM DECISION AND AMY V. BELLUM, ORDER DENYING MOTION TO EXCLUDE TESTIMONY OF Plaintiffs, PLAINTIFFS’ EXPERT BERNARD CORNELISSEN v.

ARAMARK SPORTS & Lead Case No. 4:18-cv-00072-DN-PK ENTERTAINMENT SERVICES, Member Case No. 2:18-cv-00158 Defendant, District Judge David Nuffer and, Magistrate Judge Paul Kohler

IN THE MATTER OF COMPLAINT OF SUMMER PARADISE, INC., ROGER COMSTOCK, TRACEE COMSTOCK, PRESTON MILLER, SANDY MILLER, BRIAN HORAN, KIM HORAN, DAVE DANIELS, BUD BULLARD, KRISTI BULLARD, CRAIG CURTIS, EARLYN CURTIS, DONALD BELLUM, STEVE MILLS, GREG PICKEREL, GINA PICKEREL, TROY SEYFER, GLENN LEWIS, REX ROLLO, NADINE ROLLO, STEVEN TYCKSEN, RUTH TYCKSEN, ROGER COOK, COLLEEN COOK, and KEVIN DANIELS as Owners or Owners Pro Hac Vice of a 2001 73-foot Stardust Houseboat “SUMMER PARADISE” for Exoneration from or Limitation of Liability,

Petitioners. This action consists of two consolidated cases arising from an explosion that occurred on the Summer Paradise houseboat in July 2017 resulting in the tragic death of one occupant and severe injuries to several others. The lead case is a negligence action by injured Summer Paradise occupants (“Plaintiffs”) against defendant Aramark Sports & Entertainment Services (“Aramark”). The member case is an action brought by the owners of the Summer Paradise houseboat (“Petitioners”) to limit their liability for the damages caused by the explosion. A key issue in the case is whether the hose which drained overflow fuel into the lake was intact and secured to the hull at the time of the explosion, or whether it had broken off at an

earlier date and was lying in the engine compartment. In an expert report dated November 3, 2019, Aramark’s expert Arun Kumar stated his opinion that the drain hose was still attached to the hull at the time of the explosion.1 This opinion was based, in part, on calcium deposits found on the drain hose’s fitting consistent with exposure to outdoor elements.2 Plaintiffs’ joint expert report was co-authored by Carl Finocchiaro and Bastiaan Cornelissen. Cornelissen rebuts Dr. Kumar’s opinion, stating that there is no scientific basis to infer from the presence of calcium-bearing deposits on the fracture surface of the fuel drain that the fractured fitting was in place in the hull at the time of the explosion.3 Aramark has filed a motion to exclude Mr. Cornelissen’s opinion pursuant to Federal Rule of Evidence 702 (the “Motion”).4 Plaintiff filed an opposition memorandum.5 Aramark

filed a reply memorandum.6 For the reasons stated below, the Motion will be DENIED.

1 Expert Report of EAG Laboratories (Kumar Report) at 5, docket no. 158-4. 2 Id. 3 Expert Report of Spectrum Forensics (Finochiarro and Cornelissen Report) at 64, docket no. 158-2. 4 Aramark Sports & Entertainment Services, LLC’s Motion to Exclude Expert Testimony of Plaintiffs’ Expert Bastiaan Cornelissen (Motion), docket no. 158, filed Oct. 13, 2020. 5 Plaintiffs’ Response Opposing Aramark Sports and Entertainment Services, LLC’s Motion to Exclude Expert Testimony of Plaintiffs’ Expert Bastiaan Cornelissen (Opposition), docket no. 169, filed Oct. 27, 2020. 6 Reply Memorandum in Support of Aramark Sports and Entertainment Services, LLC’s Motion to Exclude Expert Testimony of Plaintiffs’ Expert Bastiaan Cornelissen (Reply), docket no. 175, filed Nov. 10, 2020. DISCUSSION Standard of review for the admissibility of expert testimony Federal Rule of Evidence 702 addresses the admissibility of expert testimony: 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.7 The district court is tasked with the responsibility of serving as the gatekeeper of expert testimony.8 It has “broad latitude” in deciding “how to determine reliability” and in making the “ultimate reliability determination.”9 The Federal Rules of Evidence generally favor the admissibility of expert testimony: “the rejection of expert testimony is the exception rather than the rule.”10 Often times the appropriate means of attacking shaky but admissible expert testimony is through “[v]igorous cross-examination [and the] presentation of contrary evidence.”11 Thus, the district “court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.”12

7 FED. R. EVID. 702. 8 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). 9 Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142 (1999). 10 FED. R. EVID. 702 Advisory Committee Notes; Heer v. Costco Wholesale Corp., 589 Fed. App’x 854, 861 (10th Cir. 2014). 11 Daubert, 509 U.S. at 596. 12 United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty, State of Miss, 80 F.3d 1074, 1078 (5th Cir. 1996). However, “[t]o say this is not to deny the importance of [the] gatekeeping requirement.”13 “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”14 “The objective of [the gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony.”15 “It is 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.”16 And “it is the specific relation between an expert’s method, the proffered conclusions, and the particular factual circumstances of the dispute . . . that renders [expert] testimony both reliable and relevant.”17 “The proponent of expert testimony bears the burden of showing that its proffered expert’s testimony is admissible.”18 “In determining whether expert testimony is admissible, the district court generally must first determine whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.”19 “Second, if the expert is sufficiently qualified, the court must determine whether the expert’s opinion is reliable by assessing the underlying reasoning and methodology.”20

13 Kuhmo Tire Co., Ltd., 526 U.S. at 152. 14 Daubert, 509 U.S. 595 (quoting Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)). 15 Kuhmo Tire Co., Ltd., 526 U.S. at 152. 16 Id. 17 Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1234 (10th Cir. 2005). 18 United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). 19 Id. (quoting FED. R. EVID. 702). 20 Id. Mr. Cornelissen’s opinion will not be excluded Mr.

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Related

Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
Kumho Tire Co. v. Carmichael
526 U.S. 137 (Supreme Court, 1999)
Bitler v. A.O. Smith Corp.
400 F.3d 1227 (Tenth Circuit, 2005)
United States v. Nacchio
555 F.3d 1234 (Tenth Circuit, 2009)

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