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 Nancy Michalski (Doc. 158,
Mot.), to which Defendant Lowe's Home Centers, LLC filed
a Response (Doc. 162, Resp.), and Plaintiff filed a Reply
(Doc. 171, 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
contends that the expert report and testimony of defense
expert Ms. Michalski is not allowed under Arizona's
collateral source rule. (Mot. at 1.) Moreover, Plaintiff
argues that Ms. Michalski is neither designated nor qualified
to testify “as to whether Plaintiff's medical care
was necessary.” (Reply at 4.) In response, Defendant
asserts that, “[p]ursuant to Arizona law, [Ms.
Michalski's] opinion and testimony is proper as Plaintiff
is entitled to fair compensation for the reasonable expenses
of necessary medical care.” (Resp. at 1-2.)
A.
Ms. Michalski's Testimony Regarding Plaintiff's
Medical Expenses Does Not Violate Arizona's Collateral
Source Rule
Plaintiff
states that, under Arizona law, “plaintiffs are
entitled to claim and recover the full amount of reasonable
medical expenses that they are charged, without any reduction
for the amounts apparently written off by healthcare
providers pursuant to contractually agreed-upon rates with
medical insurance carriers.” (Mot. at 4.) She argues
that Defendant “attempts to introduce evidence of
medical billing that has been reduced” by
Plaintiff's insurance carrier. (Mot. at 5.) For its part,
Defendant asserts that, “[u]nder Arizona law, Plaintiff
is only entitled to recover reasonable expenses for medical
care.” (Resp. at 3.) It argues that Ms. Michalski's
opinion provides analysis of the “reasonable value of
plaintiff's medical expenses.” (Resp. at 3.)
After
reviewing Ms. Michalski's report, the Court concludes
that her testimony regarding Plaintiff's
“reasonable and customary expenses of past medical care
received” does not violate Arizona's collateral
source rule. (Doc. 158, Ex. 1, Michalski Report.) In
Lopez v. Safeway Stores, Inc., cited by Plaintiff,
the Arizona Court of Appeals state that “the focal
point of the collateral source rule is . . . whether a tort
victim has received benefits from a collateral source that
cannot be used to reduce the amount of damages owed by a
tortfeasor.” 129 P.3d 487, 495 (Ariz.Ct.App. 2006). Ms.
Michalski's estimates of Plaintiff's medical expenses
do not derive from a collateral source. They are grounded in
purported industry principles she uses to determine
reasonable and customary medical expenses. (Doc. 158-1, Ex.
1, Michalski Report.) Therefore, the Court will deny
Plaintiff's Motion on this point.
B.
Plaintiff's Claim that Ms. Michalski Is Preparing an
Untimely Supplemental Report Is Not Ripe
Plaintiff
claims that Ms. Michalski has not supplemented her report
with “additional medical billing subsequent to her
report” and argues that permitting her to provide any
supplemental opinions “not timely provided to
Plaintiff's counsel” would violate Federal Rule of
Civil Procedure 26(e). (Mot. at 5.) Rule 26(e) provides, in
part, that “[a]ny additions or changes to . . .
information [in expert witness's report] must be
disclosed by the time the party's pretrial disclosures .
. . are due.” The Scheduling Order (Doc. 15) set a
deadline for Rule 26(a)(3) pretrial disclosures of March 23,
2018, and although the parties moved to continue other
discovery deadlines in this case, they did not move to
continue the Rule 26(a)(3) pretrial disclosure deadline. In
any event, Plaintiff does not argue that Ms. Michalski has
supplemented her report. If she does, and Plaintiff believes
the supplement is untimely, Plaintiff can raise the issue
with the Court at that time.
C.
Ms. Michalski May Not Opine on Whether Plaintiff's
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