Summary
applying the analysis from In re Zurn Pex Plumbing to Daubert motions in a bench trial context
Summary of this case from McGehee v. HutchinsonOpinion
4:10CV3030.
August 23, 2011
MEMORANDUM AND ORDER
In a final pretrial conference order (filing 141 at 12), the parties have agreed to waive a jury trial in this matter. In light of this development, I conclude that the pending Daubert motions (filings 123, 126) should be denied without prejudice to reassertion at trial.
The district court's "gatekeeping function" under Daubert ensures that expert evidence "submitted to the jury" is sufficiently relevant and reliable, Bonner v. ISP Technologies, Inc. , 259 F.3d 924, 929 (8th Cir. 2001) (emphasis added), but "[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself," United States v. Brown , 415 F.3d 1257, 1269 (11th Cir. 2005). Similar reasons support less stringent application of Daubert in bench trials. See Charles Alan Wright, Victor James Gold, 29 Fed. Prac. Proc. Evid. § 6266, n. 90.2 (2010), and cases cited. The "usual concerns of the [ Daubert ] rule — keeping unreliable expert testimony from the jury — are not present in such a setting." Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010).In re Zurn Pex Plumbing Products Liability Litigation 644 F.3d 604, 613 (8th Cir. 2011). See also Penske Truck Leasing Co., L.P. v. Rion, LLC , No. 8:07CV294, 2008 WL 4540178, *2 (D.Neb. Oct. 7, 2008) (denying Daubert motion without prejudice to reassertion at trial where right to trial by jury was waived); S.E.C. v. Guenthner , 395 F.Supp.2d 835, 843 n. 3 (D.Neb. 2005) (discussing Daubert motion in context of bench trial).
Accordingly,
IT IS ORDERED:
1. Defendant's motion in limine to exclude the expert testimony of Garth Ashpaugh (filing 123) is denied without prejudice to reassertion at trial.
2. Plaintiff's motion in limine to exclude the expert testimony of Daniel J. Caldwell and Jeffrey L. Pursley (filing 126) is denied without prejudice to reassertion at trial.
[*]This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.