Prudential Ins. Co. of Am. v. Textron Aviation, Inc., Case No. 16-2380-DDC-JPO

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff, v. TEXTRON AVIATION, INC. f/k/a/ HAWKER BEECHCRAFT GLOBAL CUSTOMER SUPPORT, LLCand HAWKER BEECHCRAFT SERVICES, INC., Defendant.

Case No. 16-2380-DDC-JPO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 27, 2018

MEMORANDUM AND ORDER

Plaintiff brings this action to recover damages that its aircraft sustained during a hail storm. Plaintiff contends that defendant negligently caused that damage when it left the aircraft on a runway (instead of placing it inside a hangar) during the hail storm. Both parties have moved for summary judgment. Plaintiff's Motion for Summary Judgment (Doc. 105) asserts that its delivery of the aircraft to defendant for maintenance and repairs created a bailment relationship that imposed a duty on defendant to safeguard the aircraft. Plaintiff asserts that the summary judgment facts establish that defendant breached that duty and negligently caused the aircraft to sustain damages amounting to $501,000. Plaintiff thus asks the court to enter judgment as a matter of law in its favor for $501,000.

In contrast, defendant's Motion for Summary Judgment (Doc. 84) asserts that Kansas law imposed no duty to put the aircraft in a hanger while it was at defendant's facility for maintenance and repairs. And, even if a duty existed, defendant argues, plaintiff's negligence claim fails as a matter of law because plaintiff offers no expert opinion to establish causation, as Kansas law requires.

For reasons explained below, the court agrees with defendant. So, it grants defendant's Motion for Summary Judgment. The court also denies plaintiff's Motion for Summary Judgment. The court explains how it reaches these conclusions, below.

I. Motions to Exclude and Strike

Before considering the parties' summary judgment motions, the court addresses two other motions that defendant has filed. First, defendant filed a Motion to Exclude the Expert Testimony of Brad Guyton. Doc. 86. Second, defendant filed a Motion to Strike. Doc. 109. The court first addresses the Motion Strike and then turns to the Motion to Exclude.

A. Motion to Strike

Defendant's Motion to Strike (Doc. 109) asks the court to strike certain material from plaintiff's Motion for Summary Judgment (Docs. 105 & 106) and plaintiff's Opposition to defendant's summary judgment motion (Doc. 97).

Rule 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Our court has refused to apply Rule 12(f) to strike responses and replies to motions because this Rule applies only to "pleadings," and a response or a reply to a motion "is not a 'pleading' that the [c]ourt may strike under Rule 12(f)." Fox v. Pittsburg State Univ., 258 F. Supp. 3d 1243, 1251 (D. Kan. 2017) (citing Fed. R. Civ. P. 7(a) (listing documents considered pleadings)); see also Williams v. Alpine Banks of Colo., No. Civ. A. 05CV02475WDMME, 2006 WL 905333, at *2 (D. Colo. Apr. 7, 2006) (denying a motion to strike because "[m]otions, briefs in support ofmotions, responses to motions, replies to responses to motions, and other papers are not pleadings under the Federal Rules and cannot be stricken by the [c]ourt under Rule 12(f)").

Also, our court disfavors motions to strike. Landrith v. Gariglietti, No. 11-2465-KHV, 2012 WL 171339, at *1 (D. Kan. Jan. 19, 2012), aff'd, 505 F. App'x 701 (10th Cir. 2012); Semsroth v. City of Wichita, No. 06-2376-KHV-DJW, 2008 WL 45521, at *2 (D. Kan. Jan. 2, 2008); Nwakpuda v. Falley's, Inc., 14 F. Supp. 2d 1213, 1215 (D. Kan. 1998). Courts usually deny motions to strike absent a showing of prejudice against the moving party. Semsroth, 2008 WL 45521, at *2. And, "any doubt [about] the utility of the material to be stricken should be resolved against the motion to strike." Landrith, 2012 WL 171339, at *1.

Here, defendant seeks an order striking certain material from plaintiff's Motion for Summary Judgment and its Opposition to defendant's summary judgment motion. These documents are not pleadings that the court may strike under Rule 12(f). Also, defendant asks the court to strike certain material because, it contends, the material is inadmissible on summary judgment. For example, defendant seeks to strike: (1) certain deposition testimony of Nathan Marcus (Jordache Enterprises, Inc.'s corporate representative) because he lacks knowledge to support the testimony; (2) the unsworn expert report of Brad Guyton because it is hearsay; and (3) certain statements of fact that violate Fed. R. Civ. P. 56 or D. Kan. Rule 56.1, because they either include multiple allegations in one statement or lack specific citations to the factual record.¹ But, instead of striking this proffered summary judgment evidence, the "better approach is for the court to consider each [piece of proffered evidence] and, to the extent it may assert afact which is not admissible evidence, simply exclude the requested fact from the court's ultimate findings." Murray v. Edwards Cty. Sheriff's Dep't, 453 F. Supp. 2d 1280, 1284 (D. Kan. 2006) (denying a motion to strike an affidavit on summary judgment); see also Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003) (affirming district court's evidentiary ruling that denied a motion to strike an affidavit on summary judgment and instead "relied on the declarations to the extent that they contained relevant and admissible material, ignoring inadmissible and irrelevant statements"); Nelson v. Allstate Ins. Co., No. 92-2309-JWL, 1993 WL 105120, at *6 (D. Kan. Mar. 8, 1993) (denying a motion to strike an affidavit and holding that "[i]f the affidavit contains material that is not admissible or relevant, the Court will ignore it."). The court follows that approach here and denies defendant's Motion to Strike.

B. Defendant's Motion to Exclude Expert Testimony

Defendant's Motion to Exclude Expert Testimony (Doc. 86) asks the court to exclude Brad Guyton's opinions about: (1) the aircraft's diminution in value; and (2) defendant's duty to keep the aircraft in a hanger while it was at defendant's facility for maintenance. Defendant makes several arguments supporting its Motion to Exclude Mr. Guyton's expert testimony under Fed. R. Evid. 702. First, defendant asserts that the court must exclude Mr. Guyton's proffered expert testimony about alleged diminution because he is not qualified to value or appraise aircraft. Second, defendant argues that Mr. Guyton's opinions about alleged diminution are unreliable because he used a flawed methodology to form his opinions. Finally, defendant asserts that Mr. Guyton's opinions about defendant's duty to hangar the aircraft are neither relevant nor reliable because they conflict with his own testimony about his industry experience as well as the facts of this case.

To resolve the parties' pending summary judgment motions, the court only needs to address defendant's third argument—whether Mr. Guyton's opinions about defendant's duty to hangar the aircraft are admissible under Fed. R. Evid. 702. The court agrees with defendant. Mr. Guyton's opinion about defendant's purported duty of care is neither relevant nor reliable under the circumstances here. The court thus excludes Mr. Guyton's proffered expert testimony on this subject. But, to resolve the parties' cross motions for summary judgment, the court need not address the admissibility of Mr. Guyton's diminution in value opinions. So, the court grants defendant's Motion to Exclude in part and denies it in part. The court grants defendant's Motion to Exclude Mr. Guyton's opinions about defendant's duty to hangar the aircraft. The court denies the remainder of defendant's motion as moot.

1. Legal Standard

The court has a "gatekeeping obligation" to determine the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). When it performs this gatekeeping duty, the court has broad discretion to decide whether to admit expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996) (quoting Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)). The admissibility of expert testimony is governed by Federal Rule of Evidence 702. It 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.

Fed. R. Evid. 702.

The court must apply a two-part test to determine admissibility. Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). First, the court must determine "whether the expert is qualified 'by knowledge, skill, experience, training, or education' to render an opinion." United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting Fed. R. Evid. 702). Second, the court "'must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.'" Id. (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006)) (further citations omitted).

To qualify as an expert witness, the witness must possess "such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth." LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (internal quotation omitted). To determine whether the expert's testimony is reliable, the court must assess ...