United States District Court, D. Arizona
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.
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