The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER ON MOTIONS IN LIMINE (KENT MCKAY AND HENRY BUCKWALTER)
Before the Court are several motions in limine filed by the Defendant on September 23, 2009, February 18, 2010, and February 19, 2010. See Docket Nos. 53, 78, and 83. The Defendant seeks to exclude the expert opinions of Kent McKay and Henry Buckwalter. For the reasons set forth below, the Court grants in part and denies in part the Defendant's motions.
This is a products liability action arising out of damage to the plaintiff's, DJ Coleman, Inc.'s, sunflower crop in 2007. DJ Coleman alleges that the crop damage was caused by the herbicide Assert® which is manufactured by the defendant, Nufarm Americas, Inc. The experts that are the subjects of the pending motions are a crop adviser and a principal consultant who assists chemical companies in registering agricultural products in the United States.
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. When deciding whether to admit expert testimony of a witness, the trial court acts as a "gatekeeper" to make "'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.'" Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 988 (8th Cir. 2001) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993)).
Daubert provides a framework for determining whether expert evidence is admissible at trial. At the outset, the court must, pursuant to Rules 104(a) and 702 of the Federal Rules of Evidence, determine whether the expert is proposing to testify to "(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592. The court must ensure that the testimony or evidence is both reliable and relevant. Id. at 589. In Daubert, the Supreme Court provided a non-exhaustive list of factors to consider in assessing the testimony or evidence: (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the theory or technique has been generally accepted. Id. at 593-94. Since Daubert, some courts have considered additional factors, such as "'whether the expertise was developed for litigation or naturally flowed from the expert's research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case.'" Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008) (quoting Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686-87 (8th Cir. 2001)).
The trial court has broad discretion in assessing the reliability of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999). However, the gatekeeper role should not invade the province of the jury whose job it is to decide issues of credibility and to weigh the evidence. United States v. Vesey, 338 F.3d 913, 917 (8th Cir. 2003). The purpose of the trial court's gatekeeping role is to separate expert opinion evidence based on "good grounds" from subjective speculation masquerading as scientific knowledge. Glastetter, 252 F.3d at 989 (citing Globetti v. Sandoz Pharms. Corp., 111 F. Supp. 2d 1174, 1177 (N.D. Ala. 2000)).
Nufarm has filed two motions in limine as to Kent McKay. Nufarm's first motion seeks to "exclude the expert report and deposition testimony of Kent McKay and to exclude McKay from participating further in this case." See Docket No. 54. Nufarm's second motion in limine was filed after McKay had filed a supplemental expert report to expand the scope of his testimony. In Nufarm's second motion in limine, it seeks to "exclude all of McKay's supplemental testimony and his report because his opinions exceed the scope of his proposed expert testimony, his analysis of damages, causation and Nufarm's duty to test fails under Daubert and Fed. R. of Evidence 702, and because McKay's opinions are not based on scientific knowledge, are not based on personal knowledge or testing, were not derived by the scientific method, and are not good science." See Docket No. 78.
Nufarm contends that McKay (1) only looked at xeroxed copies of pictures of DJ Coleman's 2007 sunflower damage to make an assessment and form an opinion on the cause of the damage; (2) did not take into consideration the results of his own sunflower "strips" conducted in 2008; (3) did not take into account the pathology report of Kasia Kinzer, a plant pathologist who examined actual sunflower plant samples from DJ Coleman's fields; (4) did not test his hypothesis that Assert® caused damage to DJ Coleman's crop; (5) did not take into account Dr. Brian Jenks's testimony that to conduct his 2006 and 2007 studies he used an older bottle of Assert® which was manufactured by BASF, not Nufarm; and (6) relies on Dr. Jenks's results from his 2006, 2007, and 2008 sunflower studies but does not know the rate of error for Dr. Jenks's results.
McKay received a bachelor of science degree from North Dakota State University (NDSU) in crop and weed science in 1988, and received a master's degree in that same specialized field in 1991. From 1991 to 2008, McKay worked as an agronomist for NDSU at the North Central Research Extension Center in Minot, North Dakota. McKay is currently the research director for Vision Research Park, LLC, a crop research and consulting company that contracts with chemical manufacturers to conduct research and test agricultural chemicals on crops grown in North Dakota. See Docket No. 42-1, pp. 13-14. Vision Research Park also does crop consulting for individual farmers. See Docket No. 42-1, pp. 14-15. McKay has over eighteen years of experience as a crop adviser. See Docket No. 42-1, p. 15. McKay has a pesticide license and a commercial applicator's license, and is re-tested every three years. See Docket No. 42-1, pp. 15-16, 20. As part of his job duties, McKay diagnoses plant injury on agricultural crops:
Q. [Counsel for Nufarm]: Have you ever been asked formally to diagnose plant injury before?
Q. [Counsel for Nufarm]: Okay. By whom?
A. [Kent McKay]: Oh, by farmers, by ag businessmen, countless times.
Q. [Counsel for Nufarm]: So people come in and say, I have -- my plants are not doing well or something, do they ask you to come out and look at them?
A. [Kent McKay]: They can, yeah. Either we do a field visit or samples are brought to my attention. Whether that's the past at NDSU or the present. Yeah. That's an everyday occurrence.
Q. [Counsel for Nufarm]: Everyday occurrence?
A. [Kent McKay]: Yeah. A lot of it is on the phone. A lot of it is explain to me over the phone what's going on. A lot of that can be just with a phone call. I mean, just the knowledge and the base of specifics of what's going on there, the crops, the knowledge base that you have, a lot of times those answers can be made over the phone. Pictures on the e-mail . . . .
See Docket No. 42-1, pp. 56-57. McKay testified that the best method for investigating damage is by physically examining the damaged crops in the field, but most of his diagnoses result from pictures of the damaged ...