Opinion
CASE NO: 8:07-cv-171-T-26TBM.
December 2, 2008
ORDER
Before the Court is Defendant's renewed motion to strike Plaintiff's economist as an expert witness in which Defendant contends that "her testimony consists solely of mathematical compilations for which expert testimony is not needed and should not be allowed." After careful consideration of the motion, the Court concludes that the motion is due to be denied without prejudice to being renewed at trial at which time the Court will conduct a Daubert hearing with regard to the admissibility of the testimony of this witness in accord with the principles announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Cook v. Sheriff of Monroe Cty, Fla., 402 F.3d 1092, 1113 (2005) (recognizing that a Daubert hearing is not required prior to trial, especially when there is only one proffered expert in an uncomplicated case). The Court would note, however, that even assuming this witness' testimony is not admissible as expert testimony under Rule 702 of the Federal Rules of Evidence, it may qualify for admission as lay opinion testimony as defined in Rule 701 of the Federal Rules of Evidence. See Bryant v. Farmers Ins. Exch, 432 F.3d 1114, 1124 (10th Cir. 2005); see also United States v. Hamaker, 455 F.3d 1316, 1330-32 (11th Cir. 2006). The parties shall address this issue in their trial briefs.
Given this conclusion, the Court needs no response from Plaintiff.
Accordingly, it is ordered and adjudged that Defendant's Renewed Motion to Strike Plaintiff's Economist as an Expert Witness (Dkt. 42) is denied without prejudice.
DONE AND ORDERED at Tampa, Florida.