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Lipp v. Ginger C, L.L.C.

United States District Court, W.D. Missouri, Central Division

January 19, 2017

JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
v.
GINGER C, L.L.C., et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District Judge

         Before 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 part.

         I. Background

         On 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.

         The 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.

         Plaintiffs-the 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.

         Plaintiffs 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.

         II. Discussion

         A. Legal Standard

         Federal 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 (8thCir. 1');">1997).

         Even 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).

         “When 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).

         B. Mr. Chase's Testimony

         Mr. 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.” ...


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