United States District Court, D. Arizona
S. WILLETT UNITED STATES MAGISTRATE JUDGE.
before the Court are three Motions (Docs. 150, 153, 154) to
preclude expert witness testimony. Plaintiff has moved to
exclude Defendants' expert witnesses Timothy Gay, CPA and
Charles Thompson. (Docs. 150, 153). Defendants have moved to
preclude the testimony of Plaintiff's expert witness Mark
Kelman. (Doc. 154).
admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Court has a “gatekeeping responsibility” to
ensure that expert testimony 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) (quoting
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592
(1993)). The Supreme Court “heavily emphasizes that
judges are entitled to broad discretion when discharging
their gatekeeping function” related to the admission of
expert testimony. United States v. Hankey, 203 F.3d
1160, 1168 (9th Cir. 2000) (citing Kumho Tire, 526
U.S. at 152). “[N]ot only must the trial court be given
broad discretion to decide whether to admit expert
testimony, it ‘must have the same kind of latitude in
deciding how to test an expert's
reliability.'” Id. (quoting Kuhmo
Tire, 526 U.S. at 152) (emphasis in original). If expert
testimony is challenged, the party proffering the expert
testimony must show by a preponderance of the evidence that
the expert's testimony is admissible. Daubert,
509 U.S. at 592 n.10.
applying Rule 702, the Ninth Circuit “contemplates a
broad conception of expert qualifications.”
Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1015 (9th Cir. 2004) (emphasis, internal
quotation marks, and citation omitted). “Shaky but
admissible evidence is to be attacked by cross examination,
contrary evidence, and attention to the burden of proof, not
exclusion.” Primiano v. Cook, 598 F.3d 558,
564 (9th Cir. 2010) (citing Daubert, 509 U.S. at
596). Alternative or opposing opinions or tests do not
“preclude the admission of the expert's
testimony-they go to the weight, not the
admissibility.” Kennedy v. Collagen Corp., 161
F.3d 1226, 1231 (9th Cir. 1998) (emphasis in original).
Further, “[d]isputes as to the strength of [an
expert's] credentials, faults in his use of [a
particular] methodology, or lack of textual authority for his
opinion, go to the weight, not the admissibility, of his
testimony.” Id. (quoting McCullock v. H.B.
Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)); see
also Southland Sod Farms v. Stover Seed Co., 108 F.3d
1134, 1142 (9th Cir. 1997) (fact that expert's opinions
were based on data collected by others was immaterial to
determining whether opinions were admissible).
Daubert, the Supreme Court enumerated a number of
factors to aid the trial court in its gatekeeping role: (i)
whether the scientific knowledge can or has been tested; (ii)
whether the given theory or technique has been published or
subjected to peer review; (iii) the potential or known error
rate; and (iv) whether the theory or technique has gained
general acceptance in the pertinent field. Daubert,
509 U.S. at 592-94. The court may consider any or all of the
Daubert factors, depending on the “particular
circumstances of the particular case at issue.”
Kumho Tire Co., 526 U.S. at 150 (“[W]e can
neither rule out, nor rule in, for all cases and for all time
the applicability of the factors mentioned in
Court considers four factors to determine if expert testimony
will assist the trier of fact: “(i) whether the expert
is qualified; (ii) whether the subject matter of the
testimony is proper for the jury's consideration; (iii)
whether the testimony conforms to a generally accepted
explanatory theory; and (iv) whether the probative value of
the testimony outweighs its prejudicial effect.”
Scott v. Ross, 140 F.3d 1275, 1285-86 (9th Cir.
1998) (citations omitted).
on the foregoing, and after reviewing the parties'
briefing, IT IS ORDERED denying
Plaintiff's “Motion to Exclude Expert Witness
Timothy Gay, CPA” (Doc. 150).
IS FURTHER ORDERED denying Plaintiff's
“Motion to Exclude Defendants' Expert Witness
Charles Thompson” (Doc. 153).
IS FURTHER ORDERED denying Defendants'
“Motion in Limine to Preclude the Testimony of