United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
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.
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”)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).
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).
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.
Federal Rule of Civil Procedure 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
(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).
Basis and Reasons
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.
Role of a Rebuttal Expert
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)).
Federal Rule of Evidence 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)).
“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).
Federal Rule of Evidence 702 and Daubert
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:
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 ...