Swinging at Experts in Sherman

Williams v. Toyota Motor Corp., 2009 WL 305139(E.D.Tex. Feb 06, 2009) (NO. 4:08-CV-487)
Williams v. Toyota Motor Corp., 2009 WL 305183(E.D.Tex. Feb 06, 2009) (NO. 4:08-CV-487)
These two opinions represent Judge Schell's rulings on the parties' respective motions to exclude certain of the other's experts and Toyota's motions for summary judgment in this product liability case.
In the first, 2009 WL 305183, Toyota sought to exclude plaintiff's experts Syson, Ward and Mango.  With respective to Syson and Ward the defendant alleged general Daubert unreliability, and Judge Schell decided that the opinions set forth in the reports were sufficiently reliable to go to the jury.  With respect to Mango, a rebuttal expert, Toyota argued that he wasn't really rebuttal, and even if he was the plaintiff was two days late with the rebuttal report.  Judge Schell held that yes, he was rebuttal, and that Toyota hadn't shown (or even alleged) harm from the two day delay.  Accordingly, the summary judgment motion on design defect was denied.  With respect to the marketing defect claims, however, Judge Schell held that the plaintiff had not adduced any evidence in the support of the claims - only that it would.  Finding this insufficient to create a fact issue in response to a summary judgment motion, Judge Schell granted the summary judgment motion on the plaintiff's marketing defect claims.
The second, 2009 WL 305139, is the interesting one.  Here, plaintiff filed a Daubert challenge to the defendant's metallurgical expert.  Basically, the defendant designated a metallurgical expert who provided a report that was pretty thin - then after the plaintiff responded provided a supplemental report with the meat of the analysis, which, oddly, was done before the date of the original report yet not included in it.  Judge Schell concluded that the defendant's supplemental report should be stricken, since supplemental reports are not intended to present a completely new analysis, and there was no reason given why a metallurgical analysis expert didn't include a metallurgical analysis in his original report - especially since the record was clear that he'd done it prior to then.  That having been done, Judge Schell analyzed the plaintiff's Daubert motion as to the expert's original report, and found it insufficient.   "What is absent from the report," the Court wrote, "is any discussion of methodology, relevant literature or scientific testing. The Fifth Circuit has stated that “a reliable methodology is in all instances mandatory ... and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible.” Dr. Fowler's conclusions due not appear from the report to be based on a reliable methodology. The report contains a series of subjective opinions, which have long been insufficient for the admission of purported expert testimony."  (Internal citation omitted). Accordingly the motion to exclude the expert testimony was granted.