Hardwood Lumber, Inc. v. Brewco Incorporated

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHWESTERN DIVISION

HARDWOOD LUMBER, INC., )

)

Plaintiff, )

)

v. ) Case No. 3:18-05088-CV-RK

)

BREWCO INCORPORATED, )

)

Defendant. )

ORDER

Before the Court is Plaintiff Hardwood Lumber, Inc. (“Hardwood”)’s motion to exclude

the opinion testimony of Brewco, Inc. (“Brewco”)’s retained expert Henry Bowman. (Doc. 92.)

The motion is fully briefed. (Docs. 92, 98, 100.) After careful consideration, and for the reasons

set forth below, the motion is DENIED.

Background

This case arises from the sale of a scragg sawmill system from Brewco to Hardwood. After

the sawmill system was purchased and constructed, it failed to produce the pallet lumber yield

desired by Hardwood. Hardwood and Brewco disagreed about which party was responsible for

the decreased yield. Hardwood filed this action against Brewco, alleging breach of warranty of

merchantability, breach of warranty of fitness for a particular purpose, negligent

misrepresentation, and intentional misrepresentation. Relevant to this motion, Hardwood and

Brewco retained expert witnesses to provide opinions and testimony concerning the reasons for

the decreased yield.

Brewco retained Mr. Bowman as an expert witness on January 17, 2020. Mr. Bowman

prepared a report about the sawmill system and an expert rebuttal report in response to Hardwood’s

expert witness report. Hardwood deposed Mr. Bowman concerning the opinions expressed in his

reports. Hardwood now moves to exclude the opinions and testimony expressed in Mr. Bowman’s

reports. Hardwood argues that Mr. Bowman lacks sufficient qualifications to be an expert witness

and that his opinions and testimony lack reasonable basis in facts, data, and methodologies. The

case is currently set to be tried by bench trial.

Legal Standard

Federal Rule of Evidence 702, amended after Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993), provides the standard for the admission of expert testimony:

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.

Fed. R. Evid. 702. Based on Rule 702, the Eighth Circuit gives a three-part test to determine the

admissibility of expert testimony:

First, evidence based on scientific, technical, or other specialized knowledge must

be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic

rule of relevancy. Second, the proposed witness must be qualified to assist the

finder of fact. Third, the proposed evidence 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.

Lauzon v. Senco Prod. Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations

omitted). The rules for the admissibility of expert testimony favor admission over exclusion. Id.

These rules are also relaxed during bench trials. David E. Watson, P.C. v. United States, 668 F.3d

1008, 1015 (8th Cir. 2012). If an expert makes observations and applies specialized knowledge to

include and exclude theories of causation, then their conclusions are generally admissible as expert

opinion. Shuck v. CNH Am., LLC, 498 F.3d 868, 875 (8th Cir. 2007) (holding that the opinions

and testimony of fire causation experts were admissible when those experts observed a combine

engine and applied their specialized knowledge to determine the cause of the fire).

Discussion

I. Mr. Bowman’s Testimony is Sufficiently Relevant.

Neither Hardwood nor Brewco argue about the relevance of Mr. Bowman’s testimony.

Relevant expert testimony must be “sufficiently related to the facts of the case such that it will aid

the fact finder in resolving the factual dispute.” Lauzon, 270 F.3d at 694. Hardwood and Brewco

disagree about which party is responsible for the decreased yield of the sawmill system. Mr.

Bowman, who has experience in the sawmill industry, opined that inadequate infrastructure and

overworked personnel caused the decreased yield. If Mr. Bowman’s conclusions are true, then

they support finding that Hardwood is responsible for the decreased yield. Thus, Mr. Bowman’s

testimony is sufficiently relevant because it will aid the fact finder in resolving the various claims.

II. Mr. Bowman is Sufficiently Qualified.

Hardwood argues that the Court should exclude Mr. Bowman’s opinions and testimony

because he is not qualified as an expert witness. An expert witness is qualified by knowledge,

skill, experience, training, or education. Fed. R. Evid. 702; Daubert, 509 U.S. at 588. Regardless

of Mr. Bowman’s training and education, the Court is satisfied that he is qualified by knowledge,

skill, and experience. Mr. Bowman has owned and operated C&L Wood Products, a wood

products company which produces and assembles approximately 24,000,000 board feet of lumber

annually, since 1996. (Doc. 98-1.) After reviewing fifteen other scragg sawmills, he purchased

and constructed his own scragg sawmill in 2013. (Id.) Additionally, he visits new scragg sawmills,

operates the sawmill machines, and participates in machine repairs. (Id.; Doc. 98-2, pp. 39-41.)

Mr. Bowman therefore has enough knowledge, skill, and experience to testify as an expert in the

scragg sawmill industry. Although Hardwood’s arguments may be suitable for cross-examination

at trial, they are not enough to prevent him from giving expert testimony altogether. See Daubert,

509 U.S. at 596. Thus, Mr. Bowman is sufficiently qualified to testify as an expert witness in this

case.

III. Mr. Bowman’s Testimony is Sufficiently Reliable.

Hardwood argues that the Court should exclude Mr. Bowman’s opinions and testimony

because they are based on insufficient facts, data, and methodologies. This argument fails because

conclusions based on observations and specialized knowledge are generally admissible as expert

opinion. Shuck, 498 F.3d at 875. Additionally, it is disingenuous for a party to challenge methods

that their own expert relies upon. Shuck, 498 F.3d at 874.

Mr. Bowman’s conclusions about the sawmill building infrastructure, wood waste disposal

systems, sawdust removal features, and staffing problems are admissible because they are based

on observations and specialized knowledge. First, Mr. Bowman observed the sawmill system and

case materials. He reviewed the sawmill in-person for approximately eight hours, including the

sawmill building infrastructure, wood waste disposal systems, sawdust removal systems, and other

features. (Doc. 98-2, p. 85; Doc. 98-3, pp. 3-5.) He also cites testimony from employees, including

a saw operator and mill manager. (Doc. 98-3, p. 8.) Second, Mr. Bowman applied specialized

knowledge from the sawmill industry. He had this knowledge due to his long-term observation

and ownership of similar sawmill systems. Academic training is not necessarily more important

than practical experience. United States v. Roach, 644 F.3d 763, 764 (8th Cir. 2011). As stated

above, although Hardwood’s arguments may be suitable for cross-examination during trial, they

are not enough to prevent Mr. Bowman from giving expert testimony altogether.

Additionally, Hardwood’s expert, Ryan Hutcheson, relied primarily on the same facts,

data, and methodologies. (Doc. 50-1.) Like Mr. Bowman, Hardwood’s expert observed the

sawmill system and case materials, applied specialized knowledge of the sawmill industry, and

formed conclusions about design and manufacturing flaws. Thus, Mr. Bowman’s testimony is

sufficiently reliable because his facts, data, and methodologies are both endorsed by caselaw and

adopted by Hardwood.

Conclusion

After careful consideration, and for the reasons set forth above, the motion to exclude Mr.

Bowman's opinions and testimony (Doc. 92) is DENIED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: July 6, 2020