CARLTON W. REEVES, District Judge.
Before the Court are three motions to strike: (1) Plaintiffs' Motion to Strike Expert Witness Report and Exclude Opinion Testimony of Ted Dearman, Docket No. 87; (2) Plaintiffs' Motion to Strike Expert Witness and Exclude Opinion Testimony of Bill Cook, Docket No. 89; and (3) Detroit Diesel Realty, Inc.'s Motion to Strike Opinion Testimony of Harrell Jeanes and Jim Meng, Docket No. 101. Having considered the parties' submissions and relevant law, the Court is now ready to rule.
This matter is a contractual dispute in which Plaintiffs Harrell Jeanes, Jr., William Jeanes, and Larry Taylor, allege that Detroit Diesel Realty, Inc. ("DDR") violated terms of a lease agreement by failing to properly maintain and repair the commercial property that it leased from Plaintiffs from 1989 to 2012. DDR denies that it is liable under the terms of the lease. However, it filed a third-party complaint against Clarke Power Services, Inc. ("Clarke")—to which DDR subleased the subject property from 1996 to 2012—asserting that to the extent DDR is found liable to Plaintiffs for any damage to the property, DDR is entitled to recover from Clarke for Clarke's breach of its repair and maintenance obligations under the sublease. The factual background of the dispute is set forth in more detail in the Court's Order dated May 6, 2014, which granted in part and denied in part DDR's motion for summary judgment, and which denied Plaintiffs' and Clarke's motions for summary judgment. See Taylor v. Detroit Diesel Realty, Inc., No. 3:12-CV-506-CWR-LRA, 2014 WL 1794582, at *1-3 (S.D. Miss. May 6, 2014). Plaintiffs now seek to exclude the expert reports and opinion testimony of Ted Dearman, DDR's expert, and Bill Cook, Clarke's expert. DDR moves to exclude what it categorizes as impermissible expert opinion by lay witnesses Harrell Jeanes, Jr. and Jim Meng.
The admissibility of expert testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the post-Daubert amendments to Federal Rule of Evidence 702. See Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). That Rule now states the following:
Fed. R. Evid. 702.
The purpose of Rule 702 is to guide the district court's gatekeeping function. See Guy, 394 F.3d at 325. Before allowing a witness to testify as an expert, a court "must be assured that the proffered witness is qualified to testify by virtue of his `knowledge, skill, experience, training, or education.'" Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) (quoting Fed. R. Evid. 702). A court's gatekeeping function also involves ensuring that "the expert uses reliable methods to reach his opinions," and that those opinions are "relevant to the facts of the case." Guy, 394 F.3d at 325. "Reliability is determined by assessing whether the reasoning or methodology underlying the testimony is scientifically valid. Relevance depends upon whether that reasoning or methodology properly can be applied to the facts in issue." Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quotation marks, citations, and brackets omitted); see United States v. Fields, 483 F.3d 313, 342 (5th Cir. 2007). The party offering the expert bears the burden of establishing reliability by a preponderance of the evidence. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc).
In Daubert, the Supreme Court described several non-exclusive factors that trial judges should consider in gauging reliability, including whether the proposed technique or theory can be or has been tested, whether it has been subjected to peer review and publication, whether its error rate is acceptable, whether the theory is generally accepted in the scientific community, and whether there are standards controlling the technique. See Guy, 394 F.3d at 325; Knight, 482 F.3d at 351. It later instructed that "the reliability analysis must remain flexible: not every Daubert factor will be applicable in every situation; and a court has discretion to consider other factors it deems relevant." Guy, 394 F.3d at 325 (citation omitted); see Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007).
The Daubert analysis applies to the process in which an expert reaches his conclusions, not to the merits of the conclusions themselves. Guy, 394 F.3d at 325. The merits remain subject to attack at trial under traditional principles of "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Daubert, 509 U.S. at 596. "[I]n determining the admissibility of expert testimony, the district court should approach its task with proper deference to the jury's role as the arbiter of disputes between conflicting opinions." United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cnty., State of Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quotation marks and citation omitted).
The Fifth Circuit has quoted with approval the Seventh Circuit's observation that "[u]nder the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." Moore, 151 F.3d at 278 (quotation marks and citation omitted). The extrapolation or "leap[] from an accepted scientific premise to an unsupported one.... must be reasonable and scientifically valid." Id. at 279 (citations omitted).
Plaintiffs move to strike Dearman's entire expert report and to exclude his opinion testimony. However, Plaintiffs have adequately provided a basis for exclusion of only a portion of Dearman's report and testimony. Therefore, the motion will be denied in part, without prejudice, as to those portions of the report and testimony that Plaintiffs have not specifically requested to be excluded. The motion will, however, be granted with respect to the following opinions and testimony that Plaintiffs have specifically sought to be excluded:
Plaintiffs' objections to Cook's expert report and opinion testimony relate only to Cook's conclusions that are relevant to the lease between Plaintiffs and DDR, and thus, this Order does not address Cook's opinions that relate solely to the DDR-Clarke sublease. Although Plaintiffs move to strike all parts of Cook's expert report relating to the prime lease, and to exclude all of Cook's opinion testimony relating to the prime lease, they have not adequately supported such a sweeping motion. The motion will, therefore, be granted in part and denied in part. The Court concludes as follows regarding each part of Cook's report and testimony that Plaintiffs have specifically sought to exclude:
DDR requests that the Court "strike those portions of the affidavits of Harrell Jeanes and Jim Meng that include any opinions, including ones pertaining to the alleged cause of damage found on the lease property." Docket No. 102, at 5. DDR asserts that such testimony is based on "scientific, technical, or other specialized knowledge within the scope of Rule 702," and that, consequently, only an expert can testify on such issues. Fed. R. Evid. 701. Specifically, DDR moves to exclude the lay witnesses' testimony that certain damage was caused by neglect or lack of maintenance and repair as opposed to ordinary wear and tear. Docket No. 102, at 2-3. The motion shall be granted.
The Court agrees that Harrell Jeanes, Jr.'s and Meng's proposed testimony and opinion on causation go beyond permissible lay testimony and require an expert designation. As DDR has argued, Plaintiffs did not designate Harrell Jeanes, Jr. or Meng as an expert, nor have Plaintiffs established that Harrell Jeanes, Jr. or Meng qualifies as an expert in accordance with Rule 702. Therefore, they cannot testify about the cause of damage to the premises. They may, however, describe the condition of the premises.
DDR also objects to Harrell Jeanes, Jr.'s and Meng's statements regarding whether the premises had been maintained because "they do not have personal knowledge of the repair and maintenance practices over the life of the lease...." Docket No. 102, at 4. DDR's objection is well-taken, and therefore, the lay witnesses may not explicitly state that the premises were not properly maintained, but they may describe the condition of the premises.
For the foregoing reasons, Plaintiffs' Motion to Strike Expert Witness Report and Exclude Opinion Testimony of Ted Dearman, Docket No. 87, is granted in part and denied in part; Plaintiffs' Motion to Strike Expert Witness Report and Exclude Opinion Testimony of Bill Cook, Docket No. 89, is granted in part and denied in part; and DDR's Motion to Strike Opinion Testimony of Harrell Jeanes and Jim Meng, Docket No. 101, is granted.