United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
D. NOCE, UNITED STATES MAGISTRATE JUDGE
action is before the court on the motion of defendant
Progressive Lawn Managers, Inc., to strike the report of
plaintiff's expert Fernando Torres. (Doc. 66). Plaintiff
opposes this motion. (Doc. 73). The court held a hearing on
the matter on September 11, 2017.
Rule of Evidence 702 allows a witness who qualifies as an
expert by knowledge, skill, experience, training, or
education to testify in the form of an opinion or otherwise
about scientific, technical, or other specialized knowledge.
Fed.R.Evid. 702. Expert opinion testimony must pass threshold
standards of reliability and relevance. Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The inquiry of Rule 702 is a flexible one, id. at
594 n. 12, but the Daubert court identified five
important considerations relevant in determining whether
these standards are met.
the evidence must be scientific, technical, or otherwise
specialized. Fed.R.Evid. 702. Opinion evidence is
“scientific” if it is grounded in the methods and
procedures of science. Daubert, 509 U.S. at 589-90.
Second, the evidence must be “knowledge” and not
mere “subjective belief or unsupported
speculation.” Id. at 590. This means that the
subject of scientific testimony must be derived by the
scientific method. Id. Third, Rule 702 requires that
the evidence be relevant in the sense that it is helpful to
the trier of fact to decide a fact at issue. Id. at
591, 592. Fourth, if the expert opinion is based on evidence
that is inadmissible, the opinion may be admitted only if
this evidence is “of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences on the subject.” Id. at 595 (citing
Fed.R.Evid. 703). Fifth, the trial court must determine
whether the expert's reasoning and methodology are
reliable, i.e., (a) whether they can be and have
been tested; (b) whether they have been submitted to peer
review and publication; (c) whether the asserted scientific
technique has a known or potential rate of error; and (d)
whether the asserted technique is generally accepted in the
scientific community. Id. at 593-94.
can be summarized in Rule 702's post-Daubert
amendment, which requires expert evidence be (a) such that it
"will help the trier of fact to understand the evidence
or to determine a fact in issue;" (b) "based on
sufficient facts or data;" (c) "the product of
reliable principles and methods;" and (d) an application
of "the principles and methods to the facts of the
case." Fed.R.Evid. 702 (2011). The Eighth Circuit has
identified further factors that are relevant in determining
reliability: the extent to which an opinion was developed for
litigation as opposed to naturally flowing from an
expert's research and the extent to which the proposed
expert eliminated alternative explanations in reaching his or
her conclusions. See Sappington v. Skyjack, Inc.,
512 F.3d 440, 449 (8th Cir. 2008) (citing Lauzon v. Senco
Prods., Inc., 270 F.3d 681 (8th Cir. 2001).
proponent of the expert evidence must show that it is
reliable and would be helpful to the finder of fact, and that
the expert is qualified to be a witness under Rule 702.
Fed.R.Evid. 104(a); Fed.R.Evid. 702 advisory-committee's
note. The expert must explain how he developed his opinions.
Fed.R.Evid. 702 advisory-committee's note. An
expert's opinion is subject to being rejected if it is
substantially based upon the expert's subjective belief
or unsupported speculation. Estate of Claison L. Groff v.
Aquila, Inc., 2007 WL 4644707, at *9 (S.D. Iowa 2007)
(e.g., ruling expert opinion not admissible as
unsupported and speculative regarding size of natural gas
leak and that the hole through which the gas escaped
"could have or must have closed during shipment of the
the district court focuses on an expert's principles and
methodology, expert conclusions may also factor into the
admissibility calculus. Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997). A court may conclude that there is
“simply too great an analytical gap” between a
proffered opinion and the data in a case, and it is within
the court's discretion to conclude that data relied upon
is not sufficient to support an expert's conclusions.
Id. A court is not required “to admit opinion
evidence that is connected to existing data only by the
ipse dixit of the expert.” Id. And,
finally, “expert testimony on legal matters is not
admissible. Matters of law are for the trial judge[.]”
See Southern Pine Helicopters, Inc. v. Phoenix Aviation
Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003)
expert report at issue is dated September 27, 2016; is 19
pages long; and contains information about Mr. Torres's
assignment, his qualifications, the background of the case,
an assessment of damages, and prejudgment interest. His
report concludes with a summary of his opinions, the
attachment of exhibits, and several appendices. (Doc. 30-3).
Fernando Torres's Summary of Opinions is as follows:
Upon reviewing the documentation listed in Appendix B to this
report, performing independent research, as well as reviewing
the relevant documentation produced in connection with the
case, I arrived at the following conclusions regarding the
alleged damages in this matter, the bases for which are
explained in the preceding sections of this report.
1. Defendant's infringing revenues for the period January
1, 2015 through 2016 are [ ].
2. Economic damages in the form of a disgorgement of the
Defendant's profits for the period January 1, 2015
through min-2016 reflecting Progressive's estimated
EBITDA margin [ ] amount to no less than [ ].
3. Economic damages in the form of lost profits are
quantifiable at a rate of no less than [ ] per new
account/year for ...