United States District Court, W.D. Missouri, Central Division
JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
GINGER C, L.L.C., et al., Defendants.
NANETTE K. LAUGHREY United States District Judge
the Court are Defendants ACC and Ginger C's Motions to
Exclude Testimony of David Chase [Docs. 354');">354');">354');">354, 363] and Robert
Griswold [Docs. 355, 365]. For the following reasons,
Defendants' Motions are granted in part and denied in
December 1');">12-1');">13, 201');">14, former Defendant Phi Kappa Phi
Fraternity members hosted a party at 507 South Fourth Street
in Columbia, Missouri. Jack Lipp arrived at this party
sometime after 1');">11');">1:00 p.m. At some point in the next hour,
Lipp went onto a second-floor balcony on the south side of
the property. Columbia Police believe party attendees had
been urinating off the deck throughout the night due to long
bathroom lines inside the house. Lipp fell 1');">18 feet off the
balcony to the driveway below. Lipp died on December 25, 201');">14
as a result of his injuries.
balcony railing had been temporarily repaired by a prior
owner of the property with wooden boards. Many of the issues
in this case center around the condition of the balcony-who
was responsible for repairing it, whether a balcony railing
was in place, etc. At the time of Lipp's injury, 507
South Fourth Street was owned by Ginger C, which had an
agreement with ACC to redevelop the property. ACC planned to
remove the existing structure on the premises to make room
for a large student apartment complex, and to this end ACC
financed Ginger C's purchase of the property. However, in
the spring and summer of 201');">14, the Columbia City Council
repeatedly tabled its consideration of ACC's proposed
project. Due to this delay, the existing structure was leased
in August 201');">14 to three male students, members of the PKP
Fraternity, for the upcoming school year. Roland Management
had an agreement with Ginger C to manage the rental property
at 507 South Fourth Street.
surviving parents of Jack Lipp-filed this suit on November 9,
201');">15. Their Fourth Amended Complaint, [Doc. 1');">191');">1], contains
four counts of negligence, one each against ACC, Ginger C,
Roland, and Scott Swafford, as Class Representative for Pi
Kappa Phi Fraternity. Plaintiffs reached a settlement with Pi
Kappa Phi, which the Court approved, and Scott Swafford was
terminated as a Defendant thereafter.
have designated a number of experts they expect to call at
trial. Defendants moved to exclude the testimony of two
experts: Mr. David Chase and Mr. Robert Griswold.
trial judges have “broad discretion” in making
decisions concerning expert testimony's admissibility.
Bradshaw v. FFE Transp. Servs., Inc., 1');">15 F.3d 1');">11');">104');">71');">15 F.3d 1');">11');">104,
1');">11');">107 (8th Cir. 201');">13). Under Fed.R.Evid. 702 and
the guidance set forth in Daubert, expert testimony
should be liberally admitted. Johnson v. Mead Johnson
& Co., LLC, 754 F.3d 557, 562 (8th Cir.
201');">14) (citing U.S. v. Finch, 1');">1057');">630 F.3d 1');">1057, 1');">1062
(8th Cir. 201');">11');">1) (holding that doubts about
usefulness of expert testimony are resolved in favor of
admissibility); Robinson v. GEICO Gen. Ins. Co., 447
F.3d 1');">1096, 1');">11');">100 (8th Cir. 2006) (holding that
expert testimony should be admitted if it “advances the
trier of fact's understanding to any degree”);
Lauzon v. Senco Prods., Inc., 21');">1');">70 F.3d 681');">1, 686
(8th Cir. 2001');">1) (Rule 702 “clearly is one of
admissibility rather than exclusion”). “As long
as the expert's . . . testimony rests upon ‘good
grounds, based on what is known' it should be tested by
the adversary process with competing expert testimony and
cross-examination, rather than excluded by the court at the
outset.” Id. (citing Daubert, 509
U.S. at 590, 596). Exclusion of expert opinion is proper
“only if it is so fundamentally unsupported that it can
offer no assistance to the jury.” Wood v. Minn.
Mining & Mfg. Co., 1');">11');">12 F.3d 306');">1');">11');">12 F.3d 306, 309
so, pursuant to Daubert, the Court's role as
“gatekeeper” in determining the admissibility of
expert testimony requires the Court to conduct “a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue.” Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93. This
question of whether “an expert's testimony both
rests on a reliable foundation and is relevant to the task at
hand” is known as the “reliability and
relevancy” test. Russell v. Whirlpool Corp.,
702 F.3d 450, 456 (8th Cir. 201');">12) (quoting Kumho Tire
Co., Ltd. v. Carmichael, 1');">137');">526 U.S. 1');">137, 1');">141');">1, (1');">1999)).
“The main purpose of Daubert exclusion is to
prevent juries from being swayed by dubious scientific
testimony.” In re Zurn Pex Plumbing Prods. Liab.
Litig., 644 F.3d 604, 61');">13 (8th Cir. 201');">11');">1).
making the reliability and relevancy determinations, a
district court may consider: (1');">1) whether the theory or
technique can be or has been tested; (2) whether the theory
or technique has been subjected to peer review or
publication; (3) whether the theory or technique has a known
or potential error rate and standards controlling the
technique's operation; and (4) whether the theory or
technique is generally accepted in the scientific
community.” Russell, 702 F.3d at 456 (citing
Daubert, 509 U.S. at 592-94).
Mr. Chase's Testimony
David Chase is a licensed architect who works in commercial
real estate development and has extensive experience
“housing (senior, assisted living, public, multi-family
and single detached), health care, commercial, hospitality
and retail projects.” ...