UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY PEAK,

Plaintiff,

v. Case No. 09-13762

Honorable Patrick J. Duggan

KUBOTA TRACTOR CORPORATION and

KUBOTA MANUFACTURING OF AMERICA,

Defendants.

____________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION IN LIMINE TO

PRECLUDE TESTIMONY OF DEFENDANT’S EXPERTS

This products liability action presently is before the Court on Plaintiff’s motion in

limine to preclude the testimony of Defendants’ expert witnesses. (ECF No. 61.) The

motion has been fully briefed and the matter is scheduled for trial beginning June 24,

2013. For the reasons that follow, the Court denies Plaintiff’s motion.

Plaintiff filed this action after he was injured by rocks that fell from the bucket of a

front-end loader manufactured by Defendants. Plaintiff alleges that a design defect

caused the boom of the front-end loader to continue rising– even after he put the boom

control lever in a neutral position– to a point where the rocks fell out of the bucket and

onto him. After the accident, Plaintiff took the equipment to a dealer for repair and

certain parts of the front-end loader were replaced. Although Plaintiff had asked the

dealer to return the old parts, they eventually were discarded. As a sanction for

Defendants’ failure to preserve this evidence, Plaintiff asks the Court to preclude

2:09-cv-13762-PJD-MJH Doc # 79 Filed 04/19/13 Pg 1 of 3 Pg ID 1521
2

Defendants’ expert witnesses from testifying as to the cause of the equipment’s failure. 

Plaintiff cites caselaw regarding spoliation in support of his motion, but also argues that

Defendants’ experts should be precluded from testifying under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).

The issue of what sanction should be imposed for a party’s failure to preserve

evidence and the issue of whether an expert is qualified to testify under Daubert are two

distinct matters. Even if Plaintiff could establish that he is entitled to some kind of

sanction based on Defendants’ alleged failure to retain the equipment for inspection, he

fails to show that the requested sanction is appropriate. In other words, Plaintiff does not

cite a single case where a court precluded a party from presenting expert testimony as a

sanction for the party’s destruction of evidence and he fails to convince the Court that the

circumstances warrant such a severe punishment. Plaintiff does not come close to

demonstrating that Defendants’ experts should be precluded from testifying pursuant to

Daubert. A court’s “gatekeeping” responsibility under Daubert is to preclude unreliable

and irrelevant expert testimony from trial. Hardyman v. Norfolk & W. Ry. Co., 243 F.3d

255, 260 (6th Cir. 2001) (quoting Daubert, 509 U.S. at 597, 113 S. Ct. at 2798). In his

motion, Plaintiff does not set forth any arguments as to why the opinions of Defendants’

experts are unreliable or irrelevant.

Accordingly,

IT IS ORDERED, that Plaintiff’s Motion in Limine to Preclude Testimony of

Defendant’s Experts is DENIED.

2:09-cv-13762-PJD-MJH Doc # 79 Filed 04/19/13 Pg 2 of 3 Pg ID 1522
3

Dated:April 19, 2013 s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Timothy M. Lessing, Esq.

Kelli A. Bennett, Esq.

Daniel J. Scully, Jr., Esq.

Paul E. Scheidemantel, Esq.

2:09-cv-13762-PJD-MJH Doc # 79 Filed 04/19/13 Pg 3 of 3 Pg ID 1523