United States District Court, D. Maryland
Mark Coulson United States Magistrate Judge.
consent of the parties, this matter is before me for all
proceedings pursuant to 28 U.S.C. § 636(c). Now pending
before the Court are ECF Nos. 136 and 139 filed by Defendants
Corsa Coal Corp. (“Corsa Coal”), Wilson Creek
Energy, LLC (“Wilson Creek”), and PBS Coals, Inc.
(“PBS Coals”) (collectively, the “Coal
Defendants”) seeking to preclude the testimony of Larry
McDowell and Ronald Lewis, two experts designated by
Plaintiffs, CDS Family Trust, LLC's and the Carl
DelSignore Family Trust's (collectively, the
“Plaintiffs”) pursuant to Rule 702 of the Federal
Rules of Evidence and Daubert v. Merrell Dowell
Pharmaceuticals, 509 U.S. 579 (1993). The Court has also
reviewed Plaintiffs' Opposition (ECF No. 154) and the
Coal Defendants' Reply (ECF No. 161). The Court finds
that no hearing is necessary.
reasons set forth below, the Court will deny both motions at
this time without prejudice. At trial, subject to the
Court's guidance below, the Coal Defendants are free to
renew challenges to credentials during the voir dire
of the witness, including a challenge that the witnesses'
training and experience are insufficient to allow him to
opine as to some or all of the areas of expected testimony.
Additionally, the Coal Defendants are free to move to strike
some or all of either expert's opinion testimony at the
conclusion of their cross examination of the expert based on
challenges to the reliability of the testimony or the
sufficiency of its factual basis.
Rule of Evidence 702 provides for:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
noted by Plaintiffs, Rule 702 was intended to liberalize the
admission of relevant expert evidence and favors
admissibility if the testimony will assist the trier of fact.
See Westberry v. Gislaved Gummi AB, 178 F.3d 257,
261 (4th Cir. 1999); Mack v. Amerisourcebergen
Drug Coro., 671 F.Supp.2d 706, 709 (D. Md. 2009).
Moreover, a Daubert challenge focuses on whether the
prerequisites to admissibility contained in Rule 702 are met,
and “is not a tool to challenge the persuasive value of
an expert's conclusions . . . [or] intended to take the
place of vigorous cross-examination or intrude on the
province of the jury.” See Ruark v. BMW of North
Am., LLC, No. ELH-09-2738, 2014 U.S. Dist. LEXIS 11969
*19 (D. Md., Jan. 30, 2014). “In other words, the
Supreme Court did not intend the gatekeeper role to ‘
supplant the adversary system or the role of the
[factfinder]: [v]igorous 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.'” See Id.
at *11 (quoting Allison v. McGhan Medical Coro., 184
F.3d 1300, 1311-12 (11th Cir. 1999)).
Coal Seam Opinions
Coal Defendants first attack Mr. McDowell's credentials
to opine as to the identification of various coal seams
within the disputed area, primarily by arguing that his
mining experience is insufficient in duration and too remote
in time to allow him to opine as to which coal seam was mined
in this case. (ECF No. 161 at pp. 2-3). According to the Coal
Defendants, Mr. McDowell's 8 years of work for a mining
company approximately 30 years ago renders him unqualified.
To say the least, that is not facially apparent to the Court.
There is no evidence before the Court that coal seam
identification has significantly evolved since 1988, nor that
eight years is an insufficient length of time to develop such
expertise. The Court also observes that based on its reading
of Mr. McDowell's reports and deposition ...