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Gable v. Nikou Group Investments, Inc.

United States District Court, S.D. Texas, Houston Division

November 27, 2017

NIKOU GROUP INVESTMENTS, INC., et al., Defendants.



         This case is before the Court on the Motion to Strike Defendants' Expert Designations (“Motion”) [Doc. # 55] filed by Plaintiff Garrett Gable, to which Defendants Nikou Group Investments, Inc. and Reza M. Nikou filed a Response [Doc. # 56]. Plaintiff neither filed a reply nor requested an extension of the reply deadline. Having reviewed the record and the applicable legal authorities, the Court denies Plaintiff's Motion.

         I. BACKGROUND

         In August 2013, Plaintiff purchased a used 2007 Dodge Ram (the “Vehicle”) from Defendants. In September 2016, Plaintiff filed this lawsuit alleging, inter alia, a violation of the Federal Motor Vehicle Information and Cost Savings Act, 49 U.S.C. § 37201 (“Odometer Act”). Plaintiff bases his Odometer Act claim on a CarFax report he obtained in August 2016.

         Defendants seek to present opinion testimony from Andrew Fiffick, Matthew Gliniak Jr., and Reza Nikou. Plaintiff has moved to strike this testimony as inadmissible expert testimony pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).[1] Plaintiff asserts that these witnesses lack expertise in the area of odometer and title fraud, that their testimony is not the product of reliable methodology, and that their testimony will not assist - indeed, will actually confuse - the trier of fact. Plaintiff's Motion is ripe for decision.


         Witnesses who are qualified by “knowledge, skill, experience, training or education” may present opinion testimony to the jury. Fed.R.Evid. 702; see, e.g., Whole Woman's Health v. Hellerstedt, __ U.S. __, 136 S.Ct. 2292, 2316 (2016); Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc); Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009). To be admissible, an expert's proffered testimony must be both relevant and reliable. See Daubert, 509 U.S. at 591-92; Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016).

         The expert testimony must be relevant and the expert's proposed opinion must be one that would assist the trier of fact to understand or decide a fact in issue. See Weiser-Brown Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 529 (5th Cir. 2015); Bocanegra v. Vicar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert, 509 U.S. at 591-92). “A party seeking to introduce expert testimony must show (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.” Huss, 571 F.3d at 452 (citing Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007)); see also Carlson, 822 F.3d at 199.

         “Reliability” requires that the proponent of the expert testimony must present some objective, independent validation of the expert's methodology. See Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536 (5th Cir. 2013). The objective of the Court's gatekeeper role is to ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 152; Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir. 2006).

         The Court's gatekeeping role is no substitute, however, for the adversarial process. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002). “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 admissible evidence.” Daubert, 509 U.S. at 596; MM Steel, L.P. v. JSW Steel (USA) Inc., 806 F.3d 835, 852 (5th Cir. 2015).

         III. ANALYSIS

         A. Andrew Fiffick

         Andrew Fiffick has provided an Inspection and Appraisal Report (“Fiffick Report”), Exh. A to Plaintiff's Motion. In the Fiffick Report, he offers his opinion that the odometer on the Vehicle has not been altered. Additionally, Fiffick addresses certain statements by Plaintiff's expert. Plaintiff argues that Fiffick's opinions should be excluded because he is not qualified in the area of odometer and title fraud, because his methodology is flawed and unreliable, and because he fails to make disclosures required by Federal Rule of Civil Procedure 26(a)(2)(B).

         Regarding Fiffick's qualifications, the record demonstrates that he is qualified through forty-two years experience in the automotive repair industry, including his ownership and operation of an automotive repair business in which he has personally worked on thousands of automobiles and has personally built more than sixty-five vehicles. Fiffick has been an Automotive Service Excellence certified master automotive repair technician for thirty years, which includes training and testing on electrical and ...

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