United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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). 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.
STANDARD FOR EXPERT TESTIMONY
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).
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.
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).
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).
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).
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 ...