United States District Court, S.D. Florida
J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE
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).
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,
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)
matter is ripe for adjudication.
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.
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
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).
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 ...