United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
claims the Government is responsible for her trip-and-fall
based on a theory of premises liability. 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).
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
light of Daubert, , and Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999),  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).
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 ...