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Below v. Yokohama Tire Corp.

United States District Court, W.D. Wisconsin

February 21, 2017

JOSHUA J. BELOW, by his guardian, DEBRA BELOW, CHARLIE ELIZABETH BELOW, a minor by her Guardian ad Litem, DANIEL A. ROTTIER, and PATRICK JOSHUA BELOW, a minor by his Guardian ad Litem, DANIEL A. ROTTIER, Plaintiffs, Attorney General United States
v.
YOKOHAMA TIRE CORPORATION, et al., Defendants. and DEAN HEALTH PLAN, INC., Involuntary Plaintiff, and STAR BLUE BELOW-KOPF, by her Guardian ad Litem, TERESA K. KOBELT, Intervening Plaintiff,

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         This matter is scheduled for trial to begin on March 6, 2017. In advance of the parties' final pretrial conference, which will take place on February 24, 2017, at 1:00 p.m, this order addresses defendants' motion in limine to exclude testimony from plaintiffs' expert, Gary Derian. (Dkt. #69.)

         A. Standard

         The admissibility of expert testimony in federal courts is governed principally by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.579 (1993). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         A district court functions as a “gatekeeper, ” determining whether proffered expert testimony is relevant and reliable. Daubert, 509 U.S. at 589; see also United States v. Johnsted, 30 F.Supp.3d 814, 816 (W.D. Wis. 2013) (expert testimony must be “not only relevant, but reliable”). Although expert testimony is “liberally admissible under the Federal Rules of Evidence, ” Lyman v. St. Jude Medical S.C., Inc., 580 F.Supp.2d 719, 723 (E.D. Wis. 2008), the Seventh Circuit has held that expert testimony must satisfy the following three-part test under Rule 702 as informed by Daubert:

(1) the witness must be qualified “as an expert by knowledge, skill, experience, training, or education, ” Fed.R.Evid. 702;
(2) the expert's reasoning or methodology underlying the testimony must be scientifically reliable, Daubert, 509 U.S. at 592-93; and
(3) the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702.

Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but ...


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