Roosevelt Irrigation District v. United States

          ORDER

          HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE

         At issue is Plaintiff and Counter-Defendant Roosevelt Irrigation District's (“RID”) Motion to Exclude Martin Bauer as an Expert (Doc. 272, Mot.), to which Defendants and Counterclaimants Salt River Project Agricultural Improvement and Power District (“the District”) and Salt River Valley Water Users' Association (“the Association”) (collectively “SRP”), and Defendants the United States, Department of Interior, and the Bureau of Reclamation (“Reclamation) (collectively, “the Government”) filed Responses (Doc. 299, Gov't Resp.; Doc. 300, SRP Resp.). No. party requested oral argument on the Motion, and the Court finds the Motion ripe for resolution without such argument. See LRCiv 7.2(f). For the reasons that follow, the Court will deny in part and grant in part the Motion.

         I. BACKGROUND

         The Court has, on several occasions, recounted the applicable factual background, (See, e.g., Doc. 293, Sept. 30, 2017 Order), and will not do so again here. On February 17, 2017, the Government disclosed Martin Bauer-who works as a Manager in Reclamation's Asset Management Division-as an expert witness to testify in this matter. (Doc. 272-1. Mot. Ex. 1 at 3.) The Government later modified this disclosure on March 9, 2017.

         Bauer graduated from California State University, Sacramento in 1984 with a Bachelor of Science in electronic engineering. (Doc. 272-2, Mot. Ex. 2, Bauer Dep. 26:14- 21.) Reclamation hired Bauer immediately following his graduation. Bauer has remained with Reclamation over the past 34 years in a number of positions, including as the Operation Maintenance Manager of the Colorado Big Thompson and Frying Pan Arkansas Projects and as an electrical engineer with Reclamation's Central Valley Project Operations Office and with Reclamation's Operations and Maintenance Branch. (Bauer Dep. 23:4- 26:6.) He has been in his current role as the Manager of Reclamation's Asset Management Division since 2014. (Bauer Dep. 13:20-21.)

         In its most recent disclosure, the Government indicates that Bauer is expected to offer opinion testimony on the following topics:

(1) that the wells operated by RID located within the boundaries of the Salt River Reservoir District (“SRRD”) were originally constructed for authorized Project purposes; (2) that the wells operated by RID within the SRRD were constructed for authorized Project purposes and are integral to the operation of the Salt River Federal Reclamation Project; (3) and that the United States has a legal interest in those facilities under the Reclamation Act.

(Doc. 272-1, Mot. Ex. 1 at 17.) Bauer purports to base his opinions “on his background, training and experience as the Manager of the Asset Management Division of the Bureau of Reclamation, the Act of June 17, 1902 . . . that authorized the Salt River Federal Reclamation Project, Reclamation policies . . ., and the 1917 contract with SRP.” (Mot. Ex. 1 at 17.) RID now moves to preclude this proposed testimony in whole.

         II. 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 Pharm., Inc., 509 U.S. 579, 589 (1999). “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 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 applicable to testimony concerning non-scientific areas of specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). However, the Daubert factors outlined above may not apply to testimony that depends on knowledge and experience of the expert, rather than a particular methodology. United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000) (citation omitted) (finding that Daubert factors do not apply to police officer's testimony based on 21 years of experience working undercover with gangs). Instead, courts “are entitled to broad discretion when discharging their gatekeeping function” with respect to non-technical testimony. Hankey, 203 F.3d at 1168. The court's discretion extends not only to its decision “whether to admit expert testimony” but also to its decision “‘how to test an expert's reliability.'” Id. (quoting Kumho Tire Co., Ltd., 526 U.S. at 152). An expert qualified by experience may testify in the form of opinion if his or her 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 Co., Ltd., 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).

         Rule 704 provides that “[a]n opinion is not objectionable just because it embraces an ultimate issue.” However, any witness-expert or lay-may not offer an opinion on an ultimate issue when that opinion is couched as a legal conclusion. “Resolving doubtful questions of law is the distinct and exclusive province of the trial judge.” United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993).

         III. ...