United States District Court, D. Arizona
ORDER
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
At
issue is Defendants Banner and Lansden's Motion In Limine
Re: Joanne Cacciatore, Ph.D. (Doc. 97, Mot.), which the
United States joined (Doc. 98). Plaintiff Saly Martinez filed
a Response (Doc. 110, Resp.), to which the United States
filed a Reply in Support of the Motion In Limine (Doc. 121,
U.S. Reply), and Banner and Lansden also filed a Reply in
Support of Motion in Limine (Doc. 122, Reply). The Court
resolves Defendants' Motion without oral argument.
See LRCiv 7.2(f).
I.
LEGAL STANDARD
Rule
702 of the Federal Rules of Evidence tasks the trial court
with ensuring that any expert testimony provided is relevant
and reliable. Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 589 (1993). “Evidence is relevant if it
has any tendency to make a fact more or less probable than it
would be without the evidence and the fact is of consequence
in determining the action.” Fed.R.Evid. 401. The trial
court must first assess whether the testimony is valid and
whether the expert's reasoning or methodology can
properly be applied to the facts in issue. Daubert,
509 U.S. at 592-93. Factors to consider in this assessment
include: whether the methodology can be tested; whether the
methodology has been subjected to peer review; whether the
methodology has a known or potential rate of error; and
whether the methodology has been generally accepted within
the relevant professional community. Id. at 593-94.
“The inquiry envisioned by Rule 702” is “a
flexible one.” Id. at 594. “The focus .
. . must be solely on principles and methodology, not on the
conclusions that they generate.” Id.
The
Daubert analysis is also applicable to testimony
concerning non-scientific areas of specialized knowledge.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
141 (1999). A qualified expert may testify in the form of
opinion if the offered experiential knowledge will help the
trier of fact to understand evidence or determine a fact in
issue, as long as the testimony is based on sufficient data,
is the product of reliable principles, and the expert has
reliably applied the principles to the facts of the case.
See Fed. R. Evid. 702; Daubert, 509 U.S. at
579. The Advisory Committee Notes on the 2000 amendments to
Rule 702 explain that Rule 702 (as amended in response to
Daubert) “is not intended to provide an excuse
for an automatic challenge to the testimony of every
expert.” See Kumho Tire, 526 U.S. at 152.
“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 595
(citation omitted).
“Every
person is competent to be a witness unless these rules
provide otherwise. But in a civil case, state law governs the
witness's competency regarding a claim or defense for
which state law supplies the rule of decision.”
Fed.R.Evid. 601. However, “state competency
rules… do not displace [Federal] Rule 702 and
Daubert.” Liebsack v. United States,
731 F.3d 850, 856 (9th Cir. 2013). Further, “Rule 702
concerns the admissibility of scientific evidence, not a
witness' competency to testify in the first place. A key
to establishing the scope of Rule 601 is to distinguish
between competency and admissibility.” Id. at
856-57. As a result, a federal court should first apply state
witness competency requirements pursuant to Rule 601, and
then determine if the testimony is admissible under Rule 702
and Daubert. Id. at 856. Both the Federal
Rules of Evidence and the Arizona Rules of Evidence are
verbatim, and the primary effect of Rule 601 is establishing
whether state or federal common law applies.
II.
ANALYSIS
Defendants
move to exclude the testimony of Plaintiff's expert
witness, Joanne Cacciatore, Ph.D., who Plaintiff plans will
offer testimony on the grief Plaintiff has suffered on
account of Defendants' alleged medical negligence and her
husband's resulting death. Defendants argue that
Cacciatore is not qualified to be a witness and that her
testimony is not admissible because it will not assist the
trier of fact and is unfairly prejudicial. (Mot. at 1-2.)
A.
Cacciatore's Qualifications to Offer Expert Testimony on
Grief
Defendants
argue that Cacciatore is not qualified to provide expert
testimony regarding Plaintiff's grief because she does
not possess “special knowledge” that is
“unknown to people in general” and because
“she is not licensed to practice psychiatry,
psychology, or any of the regulated mental health care
professions.” (See Mot. at 4-5.)
The
Court is not persuaded by Defendants' argument. A witness
may be qualified based on “knowledge, skill,
experience, training, or education.” Ariz. R. Evid.
702. Cacciatore's qualifications are presented in her
curriculum vitae, which exhibits extensive education,
experience, training, and knowledge pertaining to the subject
of grief. (Mot. at 23-40.) She possesses a Ph.D. in trauma
and death studies, has published a significant number of
academic research works, and has acted as an expert witness
in a handful of legal cases. (Mot. at 23-40.)
Cacciatore's education, knowledge, and experience are
well established by the record and demonstrate her
qualifications to provide expert testimony regarding the
grief that Plaintiff has experienced. The fact that
Cacciatore is not a licensed mental health care professional
does not diminish her knowledge and competency pertaining to
grief. Additionally, Defendants also raise a judicial
estoppel argument, but the Court finds no merit in the
analysis presented. As a result, the Court finds that
Cacciatore is qualified and competent to be a witness under
Arizona Rules of Evidence 601 and 702.
B.
Admissibility of Cacciatore's Expert Testimony
1.
Relevance
Defendants
next argue that Cacciatore's expert testimony is not
admissible because it is not relevant. They assert that the
testimony will not assist the trier of fact because the
subject matter of grief is common knowledge and the jury does
not need an expert to further understand it. Defendants
further argue that the ability to understand that the loss of
an ...