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Parker v. United States

United States District Court, D. Nebraska

January 30, 2018

DONNA PARKER, Plaintiff,
v.
UNITED STATES, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Defendant's Motion to Partially Exclude Opinions of John Bonsell and Russell Kendzior, ECF No. 85. For the reasons discussed below, the Defendant's Motion will be denied, without prejudice to assertion of objections at trial.

         BACKGROUND

         On the morning of May 28, 2015, Plaintiff Donna Parker (“Parker”) sustained injuries from a fall at the Department of Veterans Affairs Hospital in Omaha, Nebraska (“VA Hospital”). Parker, who was using a walker, alleges that a floor mat in the VA Hospital vestibule caused her to trip and fall.

         Parker claims the Government is responsible for her trip-and-fall based on a theory of premises liability.[1] The Government seeks to preclude Parker from offering certain opinions of her designated experts, John Bonsell and Russell Kendzior, at the bench trial, asserting that such opinions should be barred under the evidentiary principles established in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).

         STANDARD OF REVIEW

         Federal Rule of Evidence Rule 702 allows for the admission of expert opinions. Rule 702 states:

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.

         In light of Daubert, , and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), [2] this Court must screen proffered expert testimony for relevance and reliability. See Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893, 896 (8th Cir. 2008). A reliable opinion must be based on scientific methodology rather than on subjective belief or unsupported speculation. See Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000). In assessing reliability, the Court should consider factors including whether the proposed expert's theory, methodology or technique: 1) can be and has been tested; 2) has been subjected to peer review; 3) has a known or potential rate of error; and 4) is generally accepted by the relevant community. Bland, 538 F.3d at 896. This list of factors is not exclusive, and this Court is allowed “great flexibility” in its analysis. Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1082 (8th Cir. 1999).

         The expert's information or opinion must also “assist” the trier of fact in understanding or determining a fact in issue. Fed.R.Evid. 702(a). “This condition goes ...


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