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Oberto v. Platypus Marine, Inc.

United States District Court, W.D. Washington, Tacoma

December 14, 2017

STEPHEN J. OBERTO and KIM S. OBERTO, Plaintiffs,
v.
PLATYPUS MARINE, INC., Defendant.

          ORDER (1) RESERVING RULING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS IN LIMINE AND (2) RESERVING RULING IN PART, GRANTING IN PART, AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the parties' motions in limine. Dkts. 33, 35. Each of the parties have moved to exclude testimony from the other's expert witnesses on the basis that their testimony is inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95 (1993). Additionally, the parties have moved to exclude expert testimony and certain evidence based on failures to comply with procedural deadlines. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby:

         1. DENIES the parties' motions as they pertain to the qualifications of Richard Halcomb, Dale Mann, and Bruce Bryant to testify as expert witnesses;

         2. DENIES Plaintiffs' motions to exclude the testimony of Bruce Bryant on the basis that his disclosure was insufficient under Federal Rule of Civil Procedure 26(a)(2);

         3. RESERVES RULING on whether the testimony of Dale Mann should be excluded under Daubert based on the acceptability of his methodology for adhesion testing;

         4. RESERVES RULING on whether the testimony of Richard Bloomquist should be excluded on the basis that his written report was inadequate under Federal Rule of Civil Procedure 26(a)(2);

         5. DENIES Defendant's motion to exclude the testimony of David Halcomb based on an alleged spoliation of evidence; and

         6. GRANTS Defendant's motion to exclude the supplemental report of Ronald Reisner and the revised bid from Marine Group Boat Works on the basis that they were untimely disclosed.

         The Court will consider the motions by addressing each of the items that the parties seek to exclude, consolidating the issues where appropriate.

         A. Expert Testimony of Richard Halcomb, Dale Mann, and Bruce Bryant.

         To the extent that the parties argue that the expert testimony of witnesses David Halcomb, Dale Mann, and Bruce Bryant is inadmissible under Rule 702 and Daubert based on their qualifications, the Court denies these motions to exclude. It appears to the Court from review of Dale Mann's, David Halcomb's, and Bruce Bryant's reports and curriculum vitae (“c.v.”) that each of them are sufficiently qualified to testify regarding the cause of the paint defects based on their substantial experience in the realm of paint defects and adhesion and their personal observations in examining or working with the MAXIMO, Plaintiffs' yacht.

         The Court reserves ruling on whether the testimony of Dale Mann should be excluded based on the acceptability of his methodology for adhesion testing. Plaintiffs challenge Mann's testimony on the basis that he inadequately “scored” the surface areas for his testing. They also challenge other aspects of Mann's methodology, including his failure to obtain an actual value when measuring the paint's adhesion strength, as opposed to a “greater than” assessment. Reviewing the report and Plaintiffs' objections to Mann's testimony, the Court at this point finds that Plaintiffs' objections are best directed at the credibility and probative value of Mann's testimony rather than admissibility. Nonetheless, the Court will reserve ruling on this issue and Plaintiffs may renew their objection at trial when the Court can evaluate Mann's testimony in relation to his methodology and the surrounding evidence and testimony.

         The Court also denies Plaintiffs' motions to exclude the testimony of Bruce Bryant on the basis that his disclosure was insufficient under Federal Rule of Civil Procedure 26(a)(2) for lack of a more thorough report. Bruce Bryant is not a witness that was retained or specially employed for the purpose of providing expert testimony and the duties of his employment with Defendant do not regularly involve giving expert testimony. Therefore, he is not subject to the written report requirement of Federal Rule of Civil Procedure 26(a)(2)(b). Further, the report supplied with Bruce Bryant's disclosure appears to satisfy the requirements of Rule 26(a)(2)(C) regarding the subject matter as well as the facts and opinions to which he will testify.

         B. Expert Testimony of ...


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