The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
ORDER RE: DEFENDANT'S MOTION IN LIMINE TO EXCLUDE MEMORANDUM DECISION AND OPINIONS AND TESTIMONY OF MARTIN R. LEE, D.V.M.
Currently pending before the Court is Defendant DeLaval, Inc.'s ("DeLaval") Motion in Limine to Exclude Opinions and Testimony of Martin R. Lee, D.V.M. (Docket No. 30). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
Plaintiff Schilder Dairy, LLC ("Schilder") owns and operates two dairies -- one in Buhl, Idaho; the other in Castleford, Idaho. See Pl.'s Compl. at ¶ 5 (Docket No. 1, Att. 3). Schilder contracted with DeLaval "to design, build, equip, monitor, inspect, and maintain a dairy barn and milking system . . . at the Buhl Dairy." See id. at ¶ 7. Schilder alleges that, beginning in February 2008, and continuing through 2009, its Buhl Dairy experienced a mastitis outbreak as indicated by higher-than-normal Somatic Cell Count ("SCC") measurements. See id. at ¶¶ 23-28. Schilder's designated expert, Martin R. Lee, believes that the mastitis outbreak at the Buhl Dairy was the result of the milking system's inability to maintain stable vacuum levels, based on the Effective Reserve*fn1 of the milking system's South Vacuum Pump. See 5/23/11 Lee Aff. at ¶ 19 (Docket No. 35, Att. 4) ("[The Buhl Dairy's] inadequate effective reserve measurements indicated unsafe milking conditions . . . ."). Mr. Lee attributes this condition to DeLaval's inadequate maintenance, stating in no uncertain terms:
[T]he failure of DeLaval Direct Distributing to perform Effective Reserve air flow measurements on a regular basis and the failure of the same company to inspect the inline check valves and the failure to replace the black flappers in those valves as needed is the primary cause of the precipitous decline in udder health and consequent rapid rise in herd SCC levels which began sometime in February 2008.
From observation of these flapper valves, it is clear they had not been checked for a significant period of time which led to their failure and the near complete failure of the system with resulting detrimental effects on udder health for the entire heard.
Had DeLaval Direct Distributing performed their system maintenance checks properly with attention of critical control points in the system such as the PVC check valves and the regular measurement of Effective Reserve, the mastitis problem on this dairy could have been mostly avoided.
See 4/8/09 Rpt. at pp. 37, 41-42 (Docket No. 13, Att. 1).
Arguing that Mr. "Lee's opinions concerning DeLaval's alleged equipment failures are unreliable", DeLaval now moves to exclude these opinions from evidence at trial. See DeLaval's Mem. in Supp. of Mot. to Exclude, p. 2 (Docket No. 30, Att. 1). Specifically, DeLaval contends that Mr. Lee based his opinions upon measurements he performed nearly four months after the alleged mastitis outbreak began and, from there, sought to work backwards in time to develop a theoretical mechanical problem particular to DeLaval's equipment to explain the recorded vacuum levels from January 2008 through the date of this later test, April 28, 2008, and beyond. See id. Additionally, according to DeLaval, Mr. Lee first associated Buhl Dairy's insufficient vacuum levels and related increase in mastitis levels with a broken "flapper valve" device in the PVC vacuum line of the North Vacuum Pump. See id. at p. 3. However, DeLaval points out that Mr. Lee's subsequent testings to remove the flapper valve from the system entirely had almost no effect on the Buhl Dairy's vacuum levels. See id. In turn, Mr. Lee was forced "to speculate, without conducting any testing, that a further failure condition must have occurred in the "butterfly valve" for the North Vacuum Pump, which allowed enough air to infiltrate the system and disrupt vacuum levels." See id. at pp. 3 & 14 (emphasis in original).*fn2
With all this in mind, DeLaval dismisses Mr. Lee's analysis as "layers [of] speculation upon speculation in order to arrive at what appears to be the predetermined destination of DeLaval's fault." See id. at p. 14. According to DeLaval, Mr. Lee's opinions are not grounded in any replicable scientific methodology, such that his findings and corresponding evolution of theories of causation following one day of testing cannot logically extend to (and therefore explain the condition at the Buhl Dairy over) the duration of the alleged mastitis outbreak. See id. at p. 15 ("These statements [in Mr. Lee's expert report] are not grounded in evidence or science; they are literally guesses. When Lee was deposed, he acknowledged that he did not examine the subject butterfly valve or conduct any investigation of it guided by scientific principles"). DeLaval therefore moves to exclude Mr. Lee's opinions as being unreliable.*fn3
A. Daubert, FRE 702, and Bench Trials
Whether, and to what extent, Mr. Lee may testify at trial is addressed under the well-known standard first enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and its progeny, but now set forth in FRE 702. See Alamar Ranch, LLC v. Boise Cnty., 2010 WL 5055917, *1 (D. Idaho 2010). If expert testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue," such testimony is admissible so long as "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." See Fed. R. Evid. 702. The trial judge must perform a gatekeeping function to ensure that the expert's proffered testimony is both reliable and relevant. See United States v. Freeman, 498 F.3d 893, 901 (9th Cir. 2007). This gatekeeping function requires ...