Martinez v. United States

          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 ...