Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ferreira v. Arpaio

United States District Court, D. Arizona

November 16, 2017

Shari Ferreira, et al., Plaintiffs,
Joseph M Arpaio, et al., Defendants.


          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Defendants' Motion to Exclude Plaintiffs' Expert, Bhushan S. Agharkar, M.D. (Doc. 212), filed on July 31, 2017. Having considered both parties' briefs, the Court now rules on the motion.

         I. BACKGROUND

         The Court need not again set forth a full recitation of the facts underlying this matter. For purposes of adjudicating Defendants' pending Motion to Exclude Dr. Agharkar, a brief recital of the following facts, taken from Plaintiff Shari Ferreira's Third Amended Complaint is sufficient. Plaintiff brought this civil rights action on behalf of decedent Zachary Daughtry (“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 (“Bates”)[1]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).

         On February 7, 2017, Defendants disclosed the report of their psychiatric expert, Dr. Joseph Penn. Subsequently, Plaintiffs disclosed the report of their rebuttal expert, Dr. Agharkar on March 21, 2017. Defendants filed a Motion to Exclude Dr. Agharkar. (Doc. 212). Plaintiffs filed a Response on September 5, 2017, (Doc. 223), to which Defendants filed a Reply on September 12, 2017. (Doc. 227).


         Defendants move to exclude Plaintiff's psychiatric rebuttal expert, Dr. Bhushan S. Agharkar. Defendants contend that Dr. Agharkar must be excluded because (1) his expert report fails to comply with Federal Rule of Civil Procedure (“FRCP”) 26, (2) his testimony is irrelevant and cumulative under Federal Rule of Evidence (“FRE”) 403, and (3) his testimony is unreliable and irrelevant under FRE 702. The Court will discuss each of the standards under these rules in turn.

         A. Federal Rule of Civil Procedure 26

         FRCP 26 requires that if a party desires to have an expert 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.P. 26(a)(2)(A)-(B). The Rule requires, in relevant part, that the expert report must include:

(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).

         1. Basis and Reasons

         “Bald 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. 2004).

         2. Role of a Rebuttal Expert

         FRCP 26 also allows parties to propose rebuttal experts whose testimony “is intended solely to contradict or rebut evidence.” Fed.R.Civ.P. 26(a)(2)(D)(ii). For an expert to classify as a rebuttal expert, the expert must “address the same subject matter identified by the initial expert.” LaFlamme v. Safeway, Inc., 3:09-cv-00514, 2010 WL 3522378-ECR-VPC, at *4-5 (D. Nev. Sept. 2, 2010) (citing Lindner v. Meadow Gold Diaries, Inc., 249 F.R.D. 625, 636 (D. Hawaii 2008)). Rebuttal testimony is permitted to “question the assumptions and methods” of an opposing expert but may not present “new facts” or “novel argument.” LaFlamme, 2010 WL 3522378, at *8. A district court has “‘broad discretion in determining whether to admit or exclude expert testimony' and no per se rule exists that new expert testimony is inappropriate rebuttal testimony.” Little v. Washington Metro. Area Transit Auth., 249 F.Supp.3d 394, 416 (D.D.C. 2017) (citing United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996)).

         B. Federal Rule of Evidence 403

         FRE 403 allows courts to exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. FRE 403 “does not prohibit the introduction of cumulative evidence; rather, it merely permits courts to exclude cumulative evidence when it has little incremental value.” Cantu v. United States, No. CV 14-00219 MMM (JCGx), 2015 WL 12743881, at *17 (C.D. Cal. Apr. 6, 2015) (citing United States v. Miguel, 87 Fed.Appx. 67, 68 (9th Cir. 2004)).

         Additionally, “the mere presence of overlap, reference to another expert's report or a similar conclusion . . . does not render an expert report unnecessarily ‘cumulative' pursuant to FRE 403.” Montgomery v. Wal-Mart Stores, Inc., 12CV3057-AJB (DHB), 2015 WL 11233382, at *4 (S.D. Cal. Sept. 24, 2015) (citing Banks v. United States, 93 Fed.Cl. 41, 51 (Fed. Cl. May 4, 2010)). The Court has discretion in determining when cumulative evidence becomes “needlessly” cumulative and should therefore be excludable. United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir. 1990). As such, “even cumulative evidence is not necessarily excludable under Rule 403-evidence must be ‘needless[ly] cumulative' before its admission by the district court amounts to an abuse of discretion.” United States v. Taylor, No. 96-30343, 1997 WL 661153 (9th Cir. 1997) (quoting Skillman, 922 F.2d at 1374).

         C. Federal Rule of Evidence 702 and Daubert

         In addition to FRCP 26 and FRE 403 concerns, 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:

         A 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.