United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi United States District Judge
At
issue is Plaintiff Christine Cameron's Motion to Preclude
Testimony from Defense Expert Roger Thrush (Doc. 157, Mot.),
to which Defendant Lowe's Home Centers, LLC filed a
Response (Doc. 163, Resp.), and Plaintiff filed a Reply (Doc.
173, Reply). The Court finds this matter appropriate for
decision 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 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 may not
apply to testimony that depends the 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). 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., 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).
II.
ANALYSIS
Plaintiff
argues that Defendant's expert, Dr. Thrush, should not be
allowed to opine on how Plaintiff's physical injuries
restrict her employment because his opinions are essentially
medical opinions and he “does not have a medical
background to make any determination as to work limitations
and/or medical opinions regarding Plaintiff.” (Reply at
1.) Moreover, Plaintiff contends that Dr. Thrush's
proposed report is irrelevant because “there is no
issue raised” about Plaintiff's earning capacity
and she “continues to work in the same field.”
(Reply at 2.) In response, Defendant contends that Dr.
Thrush's testimony is distinct from other defense experts
and any medical references he makes are based upon
Plaintiff's deposition testimony and a medical
examiner's report. (Resp. at 3.)
A.
Dr. Thrush's Reliance on Medical Opinions is Reliable in
Part and Does Not Preclude his Vocational Rehabilitation
Testimony
Plaintiff
asserts that Dr. Thrush offers “no new opinions of his
own that will be helpful to the trier of fact” and that
his reliance on Defendant's medical expert opinions in
assessing “Plaintiff's medical injuries and . . .
her ability to work” is impermissible. (Reply at 2.)
Plaintiff further contends that Defendant's admission
that “a vocational rehabilitation expert [like] [Dr.]
Thrush does not do a medical evaluation, diagnosis, or
prognosis” demonstrates that he should not be allowed
to provide opinions regarding Plaintiff's physical
injuries. (Reply at 2.) In response, Defendant argues that
Dr. Thrush uses the medical opinions of expert witnesses to
lay the foundation for his opinion of Plaintiff's
“employability and ability to perform certain job
functions.” (Resp. at 3.)
After
reviewing Dr. Thrush's report, the Court concludes that
his reliance on Defendant's medical experts' opinions
does not preclude the entirety of his vocational
rehabilitation testimony. Rule 703 allows an expert to
“base an opinion on facts or data in the case that the
expert has been made aware of, ” and “[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.” Here, Plaintiff concedes that “it is
well-accepted that vocational experts frequently rely upon
the opinions of treating doctors, physical therapists and
rehabilitation professionals.” (Reply at 2.) The
“hearsay opinions” Plaintiff refers to from
Michaels v. Taco Bell Corp. are distinct from those
in this case. 2013 WL 12318545 (D. Or. Apr. 19, 2013) (Reply
at 2.) In Michaels, the expert opinion at issue
“rel[ied] on undisclosed expert opinions” from
doctors, “one of whom had not previously been
identified or disclosed, ” and the other “who . .
. did not testify to the conclusion cited by the
expert” at issue. Id. at *9. Here, Dr.
Thrush's report only refers to disclosed experts. (Doc.
163, Ex. 2, Thrush Report.) Moreover, none of the opinions he
cited deviate from the proffered opinions of the experts.
(Thrush Report.)
However,
in a separate Order, the Court excluded a portion of the
proposed testimony of another defense expert, Dr Gershwin,
that “Ms. Cameron should be treated with a rigorous
program of physical therapy and . . . that she will have an
excellent response and become fully functional and without
pain in 6 months.” Thus, to the extent that Dr.
Thrush's testimony relies on this portion of Dr.
Gershwin's testimony, Dr. Thrush's opinion is
precluded.
B.
Dr. Thrush's Opinion is Relevant
Plaintiff
also argues that there is no need for Dr. Thrush's expert
testimony because no issue has been raised implicating
Plaintiffs future employment potential. (Reply at 2.) In
response, Defendant argues that Dr. Thrush's testimony is
relevant and admissible because he opines on
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