United States District Court, D. Arizona
Honorable Rosemary Márquez United States District
before the Court is Defendant's Motion to Preclude
Testimony of Anthony Gamboa. (Doc. 284.) The Motion is
fully briefed. (Doc. 296.) The Court held a Daubert
hearing on June 27, 2019. (Doc. 317.)
Daubert Hearing-Testimony of Robert Taylor
days before the Daubert hearing, Defendant filed a
document titled “Daubert Hearing Brief” (Doc.
315), which contained a request to present testimony by
vocational economist Robert Taylor by videoconference at the
Daubert hearing. Mr. Taylor has been precluded from
testifying at trial based on untimely expert disclosure.
(Doc. 264.) The Court is aware of at least one district court
that has found that Federal Rule of Civil Procedure 26(a)
does not require the timely disclosure of an expert report if
a party seeks to use the expert only to support a
Daubert motion but does not intend to call the
expert as a witness at trial. See Yakima Valley Mem.
Hosp. v. Wa. State Dep't of Health, No.
CV-09-3032-EFS, 2012 WL 12951705, at *2 (E.D. Wa. May 18,
2012). However, here, Defendant was not diligent in timely
presenting its request to offer Mr. Taylor's testimony by
videoconference. Furthermore, allowing Mr. Taylor to testify
would cause unfair prejudice to Plaintiff, who did not have
the opportunity to depose Mr. Taylor during discovery.
Although such prejudice could be alleviated by reopening
discovery to allow Plaintiff to depose Mr. Taylor, Defendant
has not shown the requisite diligence to justify modifying
the Court's Scheduling Order to reopen discovery.
See Fed. R. Civ. P. 16(b)(4). Furthermore, reopening
discovery would cause significant delays in this case, which
has been pending since 2015 and which has a firm trial date
scheduled. Finally, the Court has reviewed Mr. Taylor's
report and, based on the contents of that report, the Court
does not find that Mr. Taylor's testimony would assist
the Court in resolving Defendant's Daubert
motion. (Doc. 315-1.) Accordingly, the Court will not re-open
the Daubert hearing to hear testimony by Mr. Taylor.
of expert testimony is governed by Rule 702 of the Federal
Rules of Evidence, which provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Evid. 702. This rule requires the trial court to
“ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579,
589 (1993). To do so, the court must assess “whether
the reasoning or methodology underlying the testimony”
is valid and “whether that reasoning or methodology
properly can be applied to the facts in issue.”
Id. at 592-93. This gatekeeping function applies not
only to expert testimony based on “scientific”
knowledge but also expert testimony based on
“technical” and “other specialized”
knowledge. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 141, 147-49 (1999). Its purpose is to ensure “that
an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Id. at
relevant to the reliability of expert testimony include, but
are not limited to, whether the theory or technique used by
the expert “can be (and has been) tested, ”
whether it “has been subjected to peer review and
publication, ” “the known or potential rate of
error, ” “the existence and maintenance of
standards controlling the technique's operation, ”
and the degree of acceptance in the relevant community of
expertise. Daubert, 509 U.S. at 593-94; Kumho
Tire, 526 U.S. at 149-50. Rule 702's
“helpfulness” standard requires that expert
testimony be relevant to issues in the case and that there be
“a valid scientific connection to the pertinent inquiry
as a precondition to admissibility.” Daubert,
509 U.S. at 591. An expert's opinions may not be premised
on “subjective belief or unsupported
speculation.” Id. at 590 (internal quotation
M. Gamboa Jr., Ph.D., M.B.A., describes himself as a
vocational economic analyst. (Transcr. 7/5/19 hearing at 35.)
According to Dr. Gamboa, a vocational economic analyst
assesses lost earning capacity by defining an
individual's pre-injury earning capacity, pre-injury
work-life expectancy, post-injury earning capacity, and
post-injury work-life expectancy, and then calculating the
present value of the loss in earning capacity. (Id.)
In contrast, a vocational rehabilitation expert assesses lost
earning capacity by interviewing the injured individual,
assessing the individual's capabilities, assessing the
job market, determining what jobs the individual is capable
of performing, and determining which accommodations would
allow the individual to perform those jobs. (Id. at
Gamboa obtained a B.S. degree in education from the
University of Massachusetts at Boston in 1966, a M.Ed. degree
in guidance and counseling from Miami University in 1967, and
a Ph.D. in guidance and counseling from Ohio State University
in 1971. (Doc. 284-1 at 2-3; see also Transcr.
7/5/19 hearing at 39-40.) In 1981, 1987, 1990, and 1993, he
completed postdoctoral studies in vocational rehabilitation
counseling, economic assessment of earnings, and labor
economics. (Doc. 284-1 at 2; see also Transcr.
7/5/19 hearing at 27-29, 40-41.) In 1993, he obtained his
M.B.A. from the University of Chicago. (Doc. 284-1 at 2;
see also Transcr. 7/5/19 hearing at 29, 41).
1977, Dr. Gamboa formed a company specializing in vocational
economic analysis called Present Vocational Economics, Inc.
(See Doc. 284-1 at 3; Transcr. 7/5/19 hearing at
41.) He has worked as an analyst for that company ever since.
(Doc. 284-1 at 3.) He was also on contract with the U.S.
Department of Health and Human Services, Social Security
Administration, Bureau of Hearings and Appeals from 1977 to
1992. (See Doc. 284-1 at 3; Transcr. 7/5/19 hearing
at 41.) He has provided expert testimony in the area of
vocational economic ...