United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
Bryan Hunton accuses Defendant American Zurich Insurance
Company (“American Zurich”) of handling his
worker's compensation claim in bad faith. Before the
Court is American Zurich's Motion to Exclude Testimony of
Elliot Flood. (Doc. 204.) The motion is fully briefed and
neither party requested oral argument. For reasons that
follow, the motion is granted in part and denied in part.
district court determines whether expert testimony is
admissible. See Estate of Barabin v. AstenJohnson,
Inc., 740 F.3d 457, 464-65 (9th Cir. 2014).
A witness who is qualified as an expert 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Thus, Rule 702 requires expert testimony
to be both relevant and reliable. Barabin, 740 F.3d
at 463. Testimony is relevant if “[t]he evidence . . .
logically advance[s] a material aspect of the party's
case, ” Cooper v. Brown, 510 F.3d 870, 942
(9th Cir. 2007), and reliable if it has “a reliable
basis in the knowledge and experience of the relevant
discipline, ” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 149 (1999).
assessing the reliability of expert witness testimony, the
court should consider the non-exhaustive factors identified
by the Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc.: (1) whether the method “can
be (and has been) tested;” (2) whether the method
“has been subjected to peer review and
publication;” (3) the method's “known or
potential rate of error;” (4) whether there are
“standards controlling the technique's
operation;” and (5) whether the method has
“general acceptance” within the “relevant
scientific community.” 509 U.S. 579, 592-94 (1993).
“[T]he test of reliability is ‘flexible, '
and Daubert's list of specific factors neither
necessarily nor exclusively applies to all experts or in
every case.” Kumho Tire, 526 U.S. at 141.
Rule of Evidence 403 allows the district court to
“exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” “Rule 403 and Daubert address
different aspects of evidence and therefore act
independently.” United States v.
Ramirez-Robles, 386 F.3d 1234, 1246 (9th Cir. 2004).
Thus, evidence found reliable under Rule 702 may nonetheless
be excluded under Rule 403 “if its probative value is
outweighed by its prejudicial impact.” Id.
retained Robert Hommel to opine on the standards of good
faith and fair dealing in the administration of worker's
compensation claims. He also retained Flood to: (1)
“obtain American Zurich's public regulatory filings
and conduct an analysis based on those filings and
Zurich's business records produced in this case, ”
(2) “provide [his] opinions on the root causes of the
compliance failures identified by Bob Hommel in his report
dated April 5, 2017, ” (3) “[p]rovide basic
background on American Zurich . . . before assessing [the]
company's compliance with industry standards for claim
handling, ” (4) “[s]ummarize American
Zurich's financial wealth as reported in its most recent
financial statements . . ., ” and (5) “[p]rovide
an analysis of the control and governance issues underlying
American Zurich's compliance issues experienced in