United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
issue is Defendant Lowe's Home Centers, LLC's
Daubert Motion to Exclude Testimony of
Plaintiff's Expert Gloria Shurman, Ph.D. (Doc. 154,
Mot.), to which Plaintiff Christine Cameron filed a Response
(Doc. 167, Resp.), and Defendant filed a Reply (Doc. 180,
Reply). The Court finds this matter appropriate for decision
without oral argument. See LRCiv 7.2(f).
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.
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 may not
apply to testimony that depends on the 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). 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.
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., 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
argues that Dr. Shurman's opinion regarding
Plaintiff's psychological condition is unreliable because
her opinion is not based on reliable facts or methodology.
(Mot. at 9.) It contends that Dr. Shurman's conclusion
that the incident caused Plaintiff's need for therapy and
treatment is speculative because Plaintiff had
“pre-existing depression and anxiety which was
exacerbated by the incident.” (Mot. at 10-11.)
Defendant also claims Dr. Shurman's opinion is unreliable
because she has a financial interest in the outcome of the
case based on the expectation that she will continue to be
Plaintiff's treating therapist. (Mot. at 11-12.) In
response, Plaintiff argues that Dr. Shurman's testimony
is reliable and grounded on facts obtained during therapy
sessions with Plaintiff that explain the alleged
psychological harm caused by alleged complex regional pain
syndrome. (Resp. at 2-4.) It also argues that Dr.
Shurman's financial interest in the case is not a reason
to render her opinion unreliable because there is a separate
agreement for Plaintiff to pay for the treatment provided by
Dr. Shurman. (Resp. at 4-5.)
Court finds that Dr. Shurman's opinion is reliable
regarding Plaintiff's proffered need for psychological
therapy and treatment. Under Rule 703, “[a]n expert may
base an opinion on facts or data in the case that the expert
has . . . personally observed.” Furthermore,
“[i]f experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the opinion to
be admitted.” Fed.R.Evid. 703. When a court relies on
Rule 703, “the requirement that witnesses have personal
knowledge of the matter to which they testify” is
relaxed. Claar v. Burlington Northern R. Co., 29
F.3d 499, 501 (9th Cir. 1994). More importantly, under Rule
703 “an expert is permitted wide latitude to offer
opinions.” Daubert, 509 U.S. at 592.
Dr. Shurman relies on facts she personally observed from
Plaintiff during therapy sessions, Plaintiff's last
recorded treatment in 1998, and Plaintiff's lack of
treatment for approximately ten years prior to the incident
at issue. (Doc. 154-1 Ex. 1, Dr. Shurman's Report; Mot.
at 9-10.) It is reasonable for Dr. Shurman to opine on
Plaintiff's potential psychological therapy and treatment
needs because Rule 703 “permits an expert to rely on
inadmissible facts or data to base their conclusions or
inferences” and Dr. Shurman's opinion can help the
jury understand the severity of Plaintiff's alleged
condition. Thompson v. Polaris Industries Inc., 2019
WL 2173965 at *12 (D. Ariz. May 17, 2019); see also U.S.
v. Patterson, 819 F.2d 1495, 1507 (9th Cir. 1987)
(finding that under Rule 703 facts or data relied upon for
expert testimony are admissible when they help the jury
understand complex subject matter). At best, Defendant's
arguments go to the weight of the evidence and not its
admissibility. See U.S. v. Vallejo, 237 F.3d 1008,
1021 (9th Cir. 2001) (holding that treating
psychologist's expert testimony was admissible under Rule
703 because opinion was based on years of psychological
treatment of Defendant coupled with expert's background
Court also does not agree that Dr. Shurman's alleged
financial interest in the case renders her opinion
unreliable. This case differs from Marbled Murrelet v.
Babbitt, cited by Defendant, in that payments made to
Dr. Shurman are for the purpose of treating Plaintiff and not
to act on behalf of Plaintiff nor to advocate for her.
See 880 F.Supp. 1343, 1363 (N.D. Cal. 1995).
Defendant can cross-examine Dr. Shurman on any possible
conflict of interest.
Court finds that Dr. Shurman's opinions regarding
Plaintiffs need for psychological therapy and treatment are
reliable and not precluded by a conflict of interest.
IS THEREFORE ORDERED denying Defendant's
Daubert Motion to Exclude Plaintiffs Expert, Dr.