United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Defendants' Motion to Exclude
Plaintiffs' Expert, Pablo Stewart, M.D. (Doc. 213), filed
on July 31, 2017. Having considered both parties' briefs,
the Court now rules on the motion.
Court need not set forth a full recitation of the facts
underlying this matter. For purposes of adjudicating
Defendants' pending Motion to Exclude Dr. Stewart, a
brief recital of the following facts, taken from Plaintiff
Shari Ferreira's Third Amended Complaint is sufficient.
Plaintiffs brought this civil rights action on behalf of
decedent Zachary Daughtry in her capacity as personal
representative of the estate. (Doc. 12 at 1). Daughtry was
arrested in December of 2013 and booked into the 4th Avenue
Jail complex. (Id. at 8). On July 9, 2014, Defendant
Ryan Bates was placed in a cell with Daughtry. (Id.
at 9). Officers passed their cell later that evening to find
Bates standing over Daughtry, who was unresponsive and laying
in a puddle of blood. (Id. at 12). Daughtry
ultimately passed away from his injuries on July 20, 2014.
(Id. at 15).
November 21, 2016, Plaintiffs disclosed the report of their
psychiatric expert, Dr. Pablo Stewart. On February 10, 2017,
Defendants responded by filing a Motion to Strike Expert
Report of Pablo Stewart. (Doc. 149). Defendants argued that
Dr. Stewart's findings were conclusory, in addition to
being displeased with his incorporation of over 360 pages of
affidavits from another case by reference. Defendants argued
that this disclosure violated Federal Rule of Civil Procedure
(“FRCP”) 26(a)(2)(B). A discovery hearing was
held on March 22, 2017 in part to discuss Defendants'
Motion to Strike. At the hearing, the Court denied
Defendants' Motion to Strike, but gave Plaintiffs an
opportunity to redo Dr. Stewart's report. Plaintiffs
ultimately refiled Dr. Stewart's revised report on April
7, 2017. Defendants subsequently filed the Motion to Exclude
currently at issue on July 31, 2017. (Doc. 213). Plaintiffs
filed a Response on September 5, 2017, (Doc. 224), to which
Defendants filed a Reply on September 12, 2017. (Doc. 226).
move to exclude Plaintiffs' psychiatric expert, Dr. Pablo
Stewart. Defendants contend that Dr. Stewart must be excluded
because his expert report fails to comply with FRCP 26 and
that his opinions are inadmissible pursuant to Federal Rule
of Evidence (“FRE”) 702. The Court will discuss
each of the standards under these rules in turn.
Federal Rule of Civil Procedure 26
requires that if a party desires to have a witness present
expert testimony, the party must disclose both the expert and
provide a written report outlining information about the
expert and her testimony. Fed. R. Civ. Pro. 26(a)(2)(A)-(B).
The Rule requires, in relevant part, that the expert report
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
them . . . .
Fed. R. Civ. P. 26(a)(2)(B).
conclusions, brief statements of ultimate conclusions with no
explanation of the basis and reasons therefore, or reports
omitting a statement of how the facts support the conclusions
do not satisfy Rule 26(a)(2)(B).” Izzo v. Wal-Mart
Stores, Inc., No. 2:15-CV-01142-JAD-NJK, 2016 WL 593532,
at *2 (D. Nev. Feb. 11, 2016) (citations omitted). Exclusion
of expert testimony “is an appropriate remedy for
failing to fulfill the required disclosure requirements of
Rule 26(a).” Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). However,
questions related to the factual basis of an expert's
testimony go “to the credibility of the testimony, not
the admissibility, and it is up to the opposing party to
examine the factual basis for the opinion in
cross-examination.” Children's Broadcasting
Corp. v. Walt Disney Co., 357 F.3d 860, 865 (9th Cir.
Federal Rule of Evidence 702 and Daubert
addition to FRCP 26 considerations, when either party
attempts to offer expert testimony through an expert witness,
the Court “must determine whether the expert witness is
qualified and has specialized knowledge that will assist a
trier of fact to understand the evidence or to determine a
fact in issue.” McKendall v. Crown Control
Corp., 122 F.3d 803, 805 (9th Cir. 1997) (citing
Fed.R.Evid. 702; Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 591 (1993) (“Daubert
I”)). The Court's analysis is made by
comparing the proposed expert testimony to the requirements
of FRE 702. FRE 702 provides that:
witness who is qualified 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