Wattle, et al v. Barko Hydraulics LLC

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth
in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 5, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 03-60979
Summary Calendar
__________________________
C. W. WATTLE; TRAVELER’S INSURANCE COMPANY
Plaintiffs - Appellees,
versus
BARKO HYDRAULICS L.L.C.,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(No. 1:01-CV-195-M)
___________________________________________________
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Barko Hydraulics L.L.C. (“Barko”) manufactures large and expensive machines
called “feller-bunchers.” Used in the logging industry, feller-bunchers utilize saws to
shear off trees near their base and metal arms to stack the logs on the ground. C.W. Wattle
(“Wattle”), a veteran logger with 30 years of experience, purchased a feller-buncher from

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2 Barko has two other complaints regarding witnesses. First, Barko argues that
Wattle inappropriately testified to the after-value of the feller-buncher, an argument
without merit considering Wattle did not testify at all about the after-value of the feller-
buncher. Second, Barko asserts that the testimony of another witness on the issue of
damages, Dexter Meredith, was prejudicial because Barko “had no idea” about the
contents of Meredith’s opinions. The evidence does not support Barko’s claim:
Meredith was listed as a witness on the pretrial order and his background as a claims
adjuster was also disclosed.
2
Barko in 1998. Soon after the purchase, Wattle was operating the feller-buncher when it
caught on fire, destroying much of the machine. Wattle sued Barko for breach of various
warranties. After a three-day trial, during which experts testified on the cause of the fire
and the value of the feller-buncher, the jury returned a verdict for Wattle. Barko moved
the district court for judgment as a matter of law and for a new trial. Both motions were
denied, Barko appeals.
We must affirm the district court’s denial of Barko’s motion for a new trial unless
there is a “clear showing of an abuse of discretion” by the district court. Hidden Oaks Ltd.
v. City of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998). Barko argues that the district court
abused its discretion by allowing the submission of expert opinions,2 after the close of
discovery, from Jim Swain (“Swain”) and Dan Olsen (“Olsen”)—both of whom testified
as to the cause and origin of the fire. In particular, Barko claims that it was prejudiced by
the late-designated experts. See Campbell v. Keystone Aerial Surveys, 138 F.3d 996 (5th
Cir. 1998); Bradley v. U.S., 866 F.2d 120 (5th Cir. 1989). In the cases Barko relies on, the
parties were prejudiced because they lacked adequate time to prepare for the expert
witnesses; here, however, Barko had ample opportunity to prepare—Swain and Olsen

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3
were designated by Wattle over a year before trial.
Barko also asserts that Olsen’s testimony was neither relevant nor reliable, two
requirements for admission of expert testimony. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). The district court concluded, based on
Olsen’s professional background, the scope of his investigation, and the methodology of
his report, that Olsen’s report was reliable. Barko fails to rebut these findings, instead
offering arguments that conflate the reliability of the report with its correctness. But as this
Court has noted, under Daubert one “need not prove to the judge that the expert’s
testimony is correct.” Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998).
The district court did not abuse its discretion, and accordingly we will not overturn its
denial of Barko’s motion for a new trial.
Barko also claims that he deserves judgment as a matter of law. We review the
district court’s ruling on a motion for judgment as a matter of law de novo. See, e.g.,
Mississippi Chemical Corp. v. Dresser-Rand Co., 287 F.3d 359, 365 (5th Cir. 2002). A
judgment as a matter of law is granted by the district court if “there is no legally sufficient
evidentiary basis for a reasonable jury to find” for Wattle. Fed. R. Civ. P. 50(a); Whitehead
v. Food Max of Mississippi, Inc., 3 F.3d 265, 269 (5th Cir. 1998). Barko relies exclusively
on Coursey v. Broadhurst, 888 F.2d 338 (5th Cir. 1989). In Coursey, the plaintiff failed to
submit any proof of the after-value for the tractor of his damaged tractor-trailer, and the
plaintiff lost his appeal because of that omission. Barko asserts that Coursey requires this
Court to separate a product into its component parts and the parties to offer proof of

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3 We also reject Barko’s objection to the jury instructions because the objection
was premised on this faulty separation claim.
4
damage for each component. Specifically, Barko argues that the sawhead and the rest of
the feller-buncher were in fact two separate entities, and that Wattle’s failure to offer proof
of damage to the sawhead alone entitles Barko to judgment as a matter of law. There is
no language in Coursey, however, to support Barko’s contention. The court there was
faced with the limited question of sufficiency of proof vis-à-vis the tractor—the question
of trailer damages was not appealed—and did not face the questions of first, whether the
trailer was part of the tractor or vice versa, or second, whether proof of damage to the
tractor-trailer was sufficient for the tractor alone.3 Barko’s reliance on Coursey is thus
misguided and the district court was correct to find that the proof of damages for the
whole feller-buncher was proper.
Accordingly, we AFFIRM the judgment of the district court.

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