The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CONTINENTAL POULTRY
SEXING ASSN., INC. PLAINTIFF
v. No. 2:21-CV-02009
DEDICATED POULTRY SERVICE, INC.
and BILLY MCHENRY DEFENDANTS
OPINION AND ORDER
Before the Court is Defendants Dedicated Poultry Service, Inc. and Billy McHenry’s
motion (Doc. 39) in limine and brief in support (Doc. 40) to exclude the expert testimony of Dr.
Ralph D. Scott and evidence of lost profits. Plaintiff Continental Poultry Sexing Assn., Inc. filed
a response (Doc. 42) in opposition and a brief in support (Doc. 43). For the reasons set forth below,
the motion will be DENIED.
Federal Rules of Evidence 702 and 703 govern the admissibility of expert testimony. Rule
702 provides
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
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
“The trial judge has the gatekeeping responsibility to ensure that an expert’s testimony both rests
on a reliable foundation and is relevant to the task at hand.” Mahaska Bottling Co., Inc. v. PepsiCo,
Inc., 441 F. Supp. 3d 745, 749 (S.D. Iowa 2019) (internal quotations and alterations omitted)
(citing Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 573 (8th Cir. 2008)). To be admissible, an
expert’s testimony “must be reliable or trustworthy in an evidentiary sense, so that, if the finder of
fact accepts it as true, it provides the assistance the finder of fact requires.” Johnson v. Mead
Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014) (quoting Polski v. Quigley Corp., 538 F.3d
836, 839 (8th Cir. 2008)). “Only if the expert’s opinion is so fundamentally unsupported [by a
factual basis] that it can offer no assistance to the jury must such testimony be excluded.” Hartley
v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002).
Defendants argue Dr. Scott’s expert opinion on the amount of lost profits Plaintiff suffered
should be excluded because the lost profits are highly speculative. Defendants also argue the
materials Dr. Scott based his opinion on do not support the lost profits calculation Dr. Scott
provides. Except to the extent they can be described as a challenge to the factual basis of Dr.
Scott’s opinion, these are not issues relevant to Dr. Scott’s qualification as an expert under Federal
Rule of Evidence 702, but instead address the burden of proof Plaintiff must meet at trial. Because
Rule 702 has been characterized as a Rule of admissibility rather than exclusion, and Defendants
have given no good reason to exclude the expert testimony, Defendants’ motion will be denied.
Defendant will have the opportunity to attack Dr. Scott’s opinions, including his methodology and
the factual basis relied upon, through the appropriate means of “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof” at trial. Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993).
Defendants also argue any evidence related to Plaintiff’s claim for lost profits should be
excluded because Defendants did not receive the documents in discovery and the documents have
not been authenticated. The Court notes Defendants deposed Dr. Scott (Doc. 40, p. 7) on
December 28, 2021, and Plaintiff represents the lost profits evidence was provided to Defendants
via email on December 27, 2021. Both the deposition and the supplemental disclosure occurred
after the September 7, 2021, discovery deadline set forth in the Court’s final scheduling order.
(Doc. 28). The scheduling order provides the parties are allowed to conduct discovery beyond this
date, “however, the Court will not resolve any disputes in the course of this extended discovery.”
Id. at 1. It is clear the parties continued discovery well after the deadline and without any prior
request for a continuance or a motion to compel. The Court will not exclude the lost profits
evidence based on an untimely disclosure.
Further, with respect to the lost profits documents Plaintiff intends to rely on, the Court
does not have the specific context needed to rule and neither the parties nor the Court can be
expected to know with certainty what evidence, testimony, or argument will be offered at trial.
When evidentiary issues are almost entirely speculative, an order in limine on admissibility
amounts to little more than an order directing the parties to abide by the Federal Rules of Evidence.
The Court begins each trial with the expectation that the parties will try their case in accordance
with the Rules, and absent a properly-supported need to enter a “follow the Rules” order, will
refrain from doing so. The parties may raise objections as necessary at trial, and the Court will
consider issues raised at that time.
IT IS THEREFORE ORDERED that Defendants’ motion (Doc. 39) in limine is DENIED.
Defendants may renew the motion at trial.
IT IS SO ORDERED this 31st day of March, 2022.
s/P. K. Holmes, III
P. K. HOLMES, III
U.S. DISTRICT JUDGE