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Morejon v. Louisville Ladder, Inc.

United States District Court, S.D. Florida

March 27, 2018

JORGE MOREJON, Plaintiff,
v.
LOUISVILLE LADDER, INC., Defendant.

          ORDER

          JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Defendant's Motion to Exclude Opinion Testimony of Oren Masory and Incorporated Memorandum of Law (DE# 27, 2/15/18).

         BACKGROUND

         On October 29, 2015, the plaintiff fell while using a ladder manufactured by Louisville Ladder, Inc. (hereinafter "defendant"). The Amended Complaint alleges the following causes of action against the defendant: strict liability (Count I) and strict liability (negligence) (Count II). Amended Complaint (DE# 1-3). On March 1, 2018, the Court granted partial summary judgment in favor of the defendant on the failure to warn claim in Count II. See Order (DE# 30, 3/1/18).

         On February 15, 2018, the defendant filed the instant motion seeking to exclude or limit the testimony of the plaintiff's liability expert, Oren Masory, Ph.D. See Defendant's Motion to Exclude Opinion Testimony of Oren Masory and Incorporated Memorandum of Law (DE# 27, 2/15/18) (hereinafter "Motion"). The plaintiff filed his response on March 12, 2018. See Plaintiff's Response in Opposition to Defendant's Motion to Strike Plaintiffs Expert (DE# 33, 3/12/18) (hereinafter "Response"). The defendant filed its reply on March 19, 2018. See Defendant's Reply to Plaintiff's Response in Opposition to Motion to Exclude Opinion Testimony of Oren Masory (DE# 36, 3/19/18) (hereinafter "Reply").

         This matter is ripe for adjudication.

         STANDARD OF REVIEW

         Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993) and Rule 702 of the Federal Rules of Evidence, the Court serves as a gatekeeper to the admission of scientific evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert. 509 U.S. 579, 589 (1993) and McCorvey v. Baxter Healthcare Corp.. 298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v. Cheminova. 400 F.3d 1286, 1291 (11th Cir. 2005). To determine the admissibility of expert testimony under Rule 702, the Court must undertake the following three-part inquiry:

(1) [T]he expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated by Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand evidence or to determine a fact in issue.

Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation omitted). The Eleventh Circuit cautioned that although some overlap among the inquiries regarding expert qualifications, reliability and helpfulness exist, "these are distinct concepts that courts and litigants must take care not to conflate." Id. at 1341.

         To determine reliability, the court considers:

(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known and potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community.

Id. (citing McCorvev. 298 F.3d at 1256 (citing Daubert. 509 U.S. at 593-94)). "'A district court's gatekeeper role 'is not intended to supplant the adversary system or the role of the jury.'" Id. (citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999)). "Quite the contrary, '[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'" Id. (quoting Daubert. 509 U.S. at 596).

         "The real purpose of a motion jn limine is to give the trial judge notice of the movant's position so as to avoid the introduction of damaging evidence which may irretrievably affect fairness of the trial. A court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds." Stewart v. Hooters of America. Inc.. No. 8:04-CV-40-T-17-MAP, 2007 WL 1752843, *1 (M.D. Fla. 2007) (citing Luce v. United States. 469 U.S. 38, 41 (1984)). District ...


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