Knorr v. Daisy Mountain Fire District

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jeremy Knorr, No. CV-22-00608-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Daisy Mountain Fire District, et al., 13 Defendants. [14] 15 Jeremy Knorr (“Plaintiff”) worked as a firefighter for the Daisy Mountain Fire 16 District (“the District”) from 1992 until 2019, when he was terminated at least in part due 17 to his inability to comply with a new fitness policy (“the Health Center Policy”), adopted 18 by the Daisy Mountain Fire District Board (“the Fire Board”) in late 2017, that required all 19 District firefighters to take a yearly treadmill test and receive a Metabolic Equivalent Task 20 (“MET”) score—which is a measure of cardiorespiratory and aerobic fitness—of at least 21 12. 22 In this action, Plaintiff has sued the District, the Fire Board, and the individual 23 members of the Fire Board (together, “Defendants”) for age discrimination and retaliation 24 in violation of the Age Discrimination in Employment Act (“ADEA”) and for disability 25 discrimination in violation of the Americans with Disabilities Act (“ADA”). In a 26 concurrently filed order, the Court has determined that Plaintiff’s ADEA and ADA claims 27 should, at least in part, survive summary judgment. 28 This order addresses a pair of expert-exclusion motions. First, Plaintiff moves to 1 exclude the opinions of one of Defendants’ experts, Mark Hyland. (Doc. 65.) Second, 2 Defendants move to exclude the opinions of Plaintiff’s economic-damages expert, Michael 3 Stokes. (Doc. 66.) For the reasons that follow, Plaintiff’s motion to exclude Hyland is 4 granted in part and denied in part and Defendants’ motion to exclude Stokes is denied. 5 DISCUSSION 6 I. Legal Standard 7 “The party offering expert testimony has the burden of establishing its 8 admissibility.” Bldg. Indus. Ass’n of Wash. v. Wash. State Bldg. Code Council, 683 F.3d 9 1144, 1154 (9th Cir. 2012). Rule 702 of the Federal Rules of Evidence governs the 10 admissibility of expert testimony. It provides: 11 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 [12] the proponent demonstrates to the court that it is more likely than not that: 13 (a) the expert’s scientific, technical, or other specialized 14 knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; [15] (b) the testimony is based on sufficient facts or data; [16] (c) the testimony is the product of reliable principles and methods; 17 and 18 (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. [19] Id. [20] As for the threshold requirement that an expert witness be qualified “by knowledge, [21] skill, experience, training, or education,” “Rule 702 contemplates a broad conception of [22] expert qualifications.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998 , 1015 [23] (9th Cir. 2004) (internal quotation marks and emphasis omitted). Years of relevant [24] experience can establish the necessary “minimal foundation.” Id. at 1015-16 . “Disputes [25] as to the strength of [an expert’s] credentials . . . go to the weight, not the admissibility, of [26] his testimony.” Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998) (cleaned [27] up). [28] 1 A district court’s decision to admit or exclude expert testimony is guided by a two2 part test that focuses on the opinion’s relevance and reliability. Daubert v. Merrell Dow 3 Pharm., Inc., 509 U.S. 579, 589-92 (1993). “The inquiry envisioned by Rule 702 is . . . a 4 flexible one.” Id. at 594 . “The focus, of course, must be solely on principles and 5 methodology, not on the conclusions that they generate.” Id. at 595 . 6 Evidence is relevant if it has “any tendency to make the existence of any fact that is 7 of consequence to the determination of the action more probable or less probable than it 8 would be without the evidence.” Id. at 587 (quoting Fed. R. Evid. 401) (internal quotation 9 marks omitted). “The Rule’s basic standard of relevance thus is a liberal one.” Id. 10 The basic standard of reliability is similarly broad. “Shaky but admissible evidence 11 is to be attacked by cross examination, contrary evidence, and attention to the burden of 12 proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). “Basically, 13 the judge is supposed to screen the jury from unreliable nonsense opinions, but not exclude 14 opinions merely because they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget 15 Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). See also Fed. R. Evid. 702, advisory 16 committee’s note to 2000 amendment (“[P]roponents do not have to demonstrate to the 17 judge by a preponderance of the evidence that the assessments of their experts are correct, 18 they only have to demonstrate by a preponderance of evidence that their opinions are 19 reliable. . . . The evidentiary requirement of reliability is lower than the merits standard of 20 correctness.”) (cleaned up). 21 Nevertheless, courts serve an important “gatekeeper” role when it comes to 22 screening expert testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). “Unlike 23 an ordinary witness, an expert is permitted wide latitude to offer opinions, including those 24 that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592 25 (internal citation omitted). “Presumably, this relaxation of the usual requirement of 26 firsthand knowledge . . . is premised on an assumption that the expert’s opinion will have 27 a reliable basis in the knowledge and experience of his discipline.” Id. This “general 28 ‘gatekeeping’ obligation . . . applies not only to testimony based on ‘scientific’ knowledge, 1 but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire 2 Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). 3 The Court has “broad discretion,” both in deciding whether the evidence is reliable 4 and in deciding how to test for reliability. United States v. Hankey, 203 F.3d 1160 , 1168 5 (9th Cir. 2000). In Daubert, the Supreme Court listed various factors that might apply, 6 including whether the expert’s technique or theory (1) can be tested; (2) has been peer 7 reviewed or published; (3) has a known or potential basis for error; and (4) is generally 8 accepted in the pertinent scientific community. 509 U.S. at 593-94 . However, “[t]he 9 Daubert factors were not intended to be exhaustive nor to apply in every case.” Hankey, [10] 203 F.3d at 1168 . In particular, “[t]he Daubert factors . . . simply are not applicable to 11 [testimony] whose reliability depends heavily on the knowledge and experience of the 12 expert, rather than the methodology or theory behind it.” Id. at 1169 . See also Fed. R. 13 Evid. 702, advisory committee’s note to 2000 amendment (“Some types of expert 14 testimony will be more objectively verifiable, and subject to the expectations of 15 falsifiability, peer review, and publication, than others. Some types of expert testimony 16 will not rely on anything like a scientific method, and so will have to be evaluated by 17 reference to other standard principles attendant to the particular area of expertise.”). The 18 bottom line is that “[t]he trial judge in all cases of proffered expert testimony must find that 19 it is properly grounded, well-reasoned, and not speculative before it can be admitted. The 20 expert’s testimony must be grounded in an accepted body of learning or experience in the 21 expert’s field, and the expert must explain how the conclusion is so grounded.” See Fed. 22 R. Evid. 702, advisory committee’s note to 2000 amendment. 23 II. Plaintiff’s Motion To Exclude Hyland 24 A. Hyland’s Opinions 25 Mark Hyland was, at relevant times, the director of clinical operations at STI 26 Physical Therapy and Rehabilitation/STI Occupational Health (“STI”), which was the 27 health center responsible for administering the treadmill-test component of the District’s 28 Health Center Policy. (Doc. 65-1 at 11-12.) Defendants retained Hyland to serve as their 1 expert in this case, and Hyland issued a written report on August 11, 2023. (Id. at 16-27.) 2 In his report, Hyland explains that he “was retained to review and analyze the 3 necessity for, and the requirements of, the Health Center Policy at the Daisy Mountain Fire 4 District and to explain the various tests offered by the District to measure cardiovascular 5 and aerobic fitness ability.” (Id. at 16.) In the “summary of opinions” section of the report, 6 Hyland states that he intends to offer the following opinions at trial: 7 1. “Firefighters require a high standard of physical fitness for safe and efficient 8 job performance for their essential job demands.” 9 2. “The District has a legitimate interest and duty to determine and ensure its 10 employees can perform their duties safely and that its employees are not a 11 danger to themselves, their coworkers, and members of the public.” 12 3. “The District’s Health Center Policy was based upon NFTA standards and 13 appropriately set forth guidelines to determine whether its employees could 14 safely perform their duties.” 15 4. “The treadmill test and MET standards the District used to measure fitness 16 levels were reasonable and appropriate.” 17 5. “Cardiovascular standards are necessary for firefighters to adequately 18 perform their job and for the health and safety of the firefighters, their 19 coworkers, and the public.” 20 6. “[Plaintiff] consistently scored below 12.0 MET, which indicated he was not 21 physically fit to safely perform the functions of his job.” 22 7. “[Plaintiff’s] MET score would remain consistent regardless of whether he 23 performed the treadmill test, the walking test, or the CPET/bike test.” 24 8. “The walking test is a more difficult and strenuous test than the treadmill 25 test.” 26 9. “I would not have recommended the walking test to [Plaintiff] because it 27 would have put him at an increased risk for an adverse cardiovascular event.” 28 10. “[Plaintiff’s] Tier 4 fitness MET scope indicates he was not fit to return to 1 work as a firefighter in the District, indicates he could not safely perform the 2 duties of a firefighter, and created a situation in which [Plaintiff] was a 3 danger to himself, his coworkers, and members of the public.” 4 (Id. at 23-24.) 5 B. The Parties’ Arguments 6 Plaintiff moves to preclude Hyland from testifying on the grounds that “1) Hyland 7 is not medically qualified to testify regarding several areas and 2) the few areas he may 8 have experience with do not require expert testimony.” (Doc. 65 at 1.) As for qualification, 9 Plaintiff notes that Hyland is not a physician; that Hyland’s responsibilities at STI were 10 limited to “recruiting and hiring medical professionals and other employees, and budgeting, 11 contracting and other business development”; that Hyland was typically not present when 12 firefighters took the treadmill test at STI (instead, the reporting on treadmill test results was 13 performed by STI’s medical director); that Hyland admitted during his deposition that he 14 “had no meaningful input into the policy at issue”; and that Hyland has never previously 15 provided expert testimony on whether such a policy is reasonable or “medically sound.” 16 (Id. at 3-5.) Given this backdrop, Plaintiff argues that Hyland “is not medically qualified 17 to opine on . . . cardiovascular risks to a firefighter like Plaintiff in taking an alternative to 18 the running treadmill test or the likelihood of Plaintiff passing a running or other alternative 19 aerobic test if provided sufficient time to prepare for the test.” (Id. at 6.) Plaintiff also 20 contends that Hyland’s opinion that Plaintiff’s MET score would have remained the same 21 regardless of whether he took a running test, a treadmill test, or a walking test is 22 contradicted by “medical principles,” by Hyland’s previous statements, and by the opinion 23 of the medical expert that the District retained in this case to perform an independent 24 medical evaluation. (Id. at 6-7.) Finally, as for Hyland’s remaining opinions, Plaintiff 25 contends they should be excluded because they relate to issues that are undisputed or are 26 otherwise so obvious that they “do not require expert testimony,” such as whether 27 “firefighters need a level of physical fitness for safe and efficient job performance,” 28 whether “a cardiovascular fit firefighter is necessary to adequately perform his job for the 1 health and safety of firefighters, coworkers and the public,” whether “the District has a 2 legitimate interest to determine that its employees can perform their duties safely,” and 3 whether “firefighters need to be fit to perform their jobs.” (Id. at 5, 7.) Plaintiff also 4 contends that “even those opinions are not based on methods and procedures of science, 5 but rather on subjective belief or unsupported speculation. Expert testimony based on such 6 completely subjective methodology should be excluded.” (Id. at 7.) 7 In response, Defendants argue that “the only opinions [Plaintiff] challenges are 8 Hyland’s opinions regarding the fitness tests provided to the District’s employees, the 9 suitability and availability of other tests, and [Plaintiff’s] overall health and fitness levels. 10 [Plaintiff] challenges these opinions because Hyland ‘is not a physician.’ This is true. 11 However, Hyland need not be a physician to render his opinions. In his capacity as the 12 Director of Clinical Operations for STI, Hyland oversaw the administration of the Gerkin 13 treadmill, including the test administered to [Plaintiff]. He also has knowledge about the 14 Balke walking test and the CPET bike test, and applied this knowledge to [Plaintiff’s] job 15 duties and fitness test results to conclude the Balke walking test and CPET bike test were 16 not suitable alternative tests. He also has knowledge and experience to interpret 17 [Plaintiff’s] test results, identify [Plaintiff’s] MET scores, and opine that [Plaintiff’s] MET 18 scores indicate a lack of physical fitness to perform the job duties of a firefighter and place 19 [Plaintiff] at a risk of danger to himself, his coworkers, and the public.” (Doc. 67 at 4.) 20 Defendants also contend that these opinions are relevant for various reasons and that 21 “Hyland’s opinions are also reliable because they are based upon his knowledge, skill, 22 experience, and review of the relevant documents. [Plaintiff] can raise any challenges to 23 Hyland’s opinions on cross-examination, but his challenges do not require the exclusion of 24 the opinions.” (Id. at 4-5.) 25 In reply, Plaintiff reiterates his argument that “many of Hyland’s alleged opinions 26 are not areas where the trier of fact needs expert testimony, such as that firefighters need a 27 level of physical fitness for safe and efficient job performance, that a physically fit 28 firefighter is necessary to adequately perform his job for the health and safety of 1 firefighters, coworkers and the public and that the District had a legitimate interest to 2 determine that its employees can perform their duties safely. As noted before, these facts 3 are not in dispute and numerous fact witnesses have already testified to these items. To 4 allow expert testimony on these commonsense issues is not only unnecessary but will 5 confuse the jury and prejudice Plaintiff.” (Doc. 70 at 2.) Next, Plaintiff argues for the first 6 time that some of Hyland’s opinions should be excluded on late-disclosure grounds, 7 because they are intended to support Defendants’ affirmative defenses and thus were 8 subject to an earlier disclosure deadline under the scheduling order. (Id. at 2-3.) Next, 9 Plaintiff clarifies that his challenge to Hyland’s qualifications is not “based solely on the 10 fact that [Hyland] is not a physician” but is also based on the fact that “[s]imply being 11 involved in the daily operations of the health center does not qualify [Hyland] to opine” on 12 such medical issues as “Plaintiff’s cardiovascular health, Plaintiff’s future cardiovascular 13 health, whether Plaintiff would have ever been fit enough to achieve an acceptable MET 14 score and whether alternative treadmill tests would put Plaintiff at risk.” (Id. at 4.) Plaintiff 15 also reiterates that Hyland has not previously provided expert testimony on those topics 16 and that Hyland’s opinions are contradicted by other evidence. (Id.) 17 C. Analysis 18 As an initial matter, Plaintiff argues in his motion that several of Hyland’s proffered 19 opinions should be excluded as irrelevant and unfairly prejudicial because they relate to 20 obvious, undisputed issues that do not require expertise. These are permissible bases for 21 seeking exclusion under Rule 702. See, e.g., Daubert, 509 U.S. at 589-91 , 595 22 (emphasizing that “the trial judge must ensure that any and all scientific testimony or 23 evidence admitted is . . . relevant,” that “[e]xpert testimony which does not relate to any 24 issue in the case is not relevant and, ergo, non-helpful,” and that “the judge in weighing 25 possible prejudice against probative force under Rule 403 of the present rules exercises 26 more control over experts than over lay witnesses”) (cleaned up). However, Defendants 27 make no effort to respond to these arguments in their response. Instead, they contend— 28 incorrectly—that “the only opinions [Plaintiff] challenges are Hyland’s opinions regarding 1 the fitness tests provided to the District’s employees, the suitability and availability of other 2 tests, and [Plaintiff’s] overall health and fitness levels” (Doc. 67 at 4) and then proceed to 3 offer a defense of those opinions. It follows that Defendants have forfeited any defense of 4 the subset of Hyland’s opinions challenged on relevance/403 grounds and have thus not 5 met their burden of establishing the admissibility of those opinions. Accordingly, Hyland’s 6 first (“Firefighters require a high standard of physical fitness for safe and efficient job 7 performance for their essential job demands.”), second (“The District had a legitimate 8 interest and duty to determine and ensure its employees can perform their duties safely and 9 that its employees are not a danger to themselves, their coworkers, and members of the 10 public”), and fifth (“Cardiovascular standards are necessary for firefighters to adequately 11 perform their job and for the health and safety of the firefighters, their coworkers, and the 12 public.”) opinions are excluded.1 13 Plaintiff’s primary objection to Hyland’s remaining opinions is that Hyland is 14 unqualified to render them because they call for medical expertise but Hyland is not a 15 doctor and did not play a direct role in administering the treadmill tests at STI. Although 16 this challenge is not frivolous, the Ninth Circuit has emphasized that Rule 702 “is broadly 17 phrased and intended to embrace more than a narrow definition of qualified expert.” 18 Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir. 1994). The proponent 19 of expert testimony need only lay a “minimal foundation” of “knowledge, skill, experience, 20 training, or education” in the topic at hand. Id. Although an expert may not offer opinions 21 on matters “outside the areas of [the expert’s] expertise,” Avila v. Willits Envtl. 22 Remediation Tr., 633 F.3d 828, 839 (9th Cir. 2011), an expert’s “lack of particularized 23 expertise goes to the weight accorded her testimony, not to the admissibility of her opinion 24 as an expert.” United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993). In light of these 25 standards, Hyland is not subject to exclusion. Although having medical training and first26 hand experience administering the treadmill test would certainly be one way of gaining the [27] 1 As discussed during oral argument, if Plaintiff were somehow to dispute the 28 premises underlying these excluded opinions during trial, that would likely open the door to allowing Hyland to present them. 1 expertise and qualifications necessary to offer the opinions at issue here, it is not the only 2 way. Hyland’s report indicates that he is a licensed occupational therapist, is “certified in 3 functional capacity evaluation,” has been the director of clinical operations at STI for 4 nearly 30 years, has “performed extensive research and analysis into the health and fitness 5 needs of local business in various industries” including “the Phoenix, Glendale, Goodyear, 6 Prescott and Tempe Fire Departments,” has “consulted on the subject of various 7 government rules, regulations, and laws, including the [ADA] and OOSHA compliance,” 8 and has testified as an expert in multiple occasions since 2001. (Doc. 65-1 at 26.) The 9 Court is satisfied that this background, training, and experience provides the necessary 10 “minimal foundation,” Thomas, 42 F.3d at 1269 , for Hyland to be qualified to opine on the 11 topics addressed in his remaining opinions (i.e., the suitability and necessity of the Health 12 Center Policy for firefighters; whether Plaintiff’s inability to comply with the Health 13 Center Policy precluded Plaintiff from performing the functions of his job; the differences 14 between the treadmill test, the walking test, and the bike test; and how Plaintiff would have 15 fared on the latter two tests). 16 Nor is there any merit to Plaintiff’s contention that Hyland’s opinions on these 17 topics should be excluded because they are contradicted by other evidence. As the Ninth 18 Circuit has repeatedly emphasized, “[s]haky but admissible evidence is to be attacked by 19 cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” 20 Primiano, 598 F.3d at 564 . Judges should “not exclude opinions merely because they are 21 impeachable.” Alaska Rent-A-Car, Inc., 738 F.3d at 969 . 22 Plaintiff’s motion also raises a fleeting challenge to the reliability of Hyland’s 23 opinions, but that objection is unavailing. Among other things, Hyland explains in his 24 report that the Health Center Policy “was developed and based upon National Fire 25 Protection Association (‘NFPA’) 1500 & 1582,” which “standards include, among other 26 factors, spirometry pulmonary function screening and sub-maximal ECG performance 27 tests”; that Hyland has also reviewed “[r]esearch with firefighters [that] indicates that a 28 minimum aerobic capacity of 12.0 METS . . . is necessary for safe fire ground operations”; 1 that “[t]he Gerkin Treadmill protocol was developed by . . . a cardiologist who worked at 2 the Phoenix Fire Departments Health Center” and is “recognized by NFPA 1582 as the 3 standardized test to measure cardiovascular and fitness status among firefighters”; that 4 research indicates that “most individuals who take the Balke [walking] test fall under the 5 target METS, just as they would on the standard Gerkin protocol”; and that for this and 6 other reasons, “STI [has] stopped offering the Balke protocol to anyone.” (Doc. 65-1 at 7 16-19.) Given these explanations, this is not a situation where the challenged “opinion 8 evidence . . . is connected to existing data only by the ipse dixit of the expert.” Joiner, 522 9 U.S. at 146. To the contrary, Hyland has adequately explained how his opinions are 10 “grounded in an accepted body of learning or experience in the expert’s field” and has also 11 adequately “explain[ed] how the conclusion is so grounded.” See Fed. R. Evid. 702, 12 advisory committee’s note to 2000 amendment. 13 Finally, Hyland’s opinions are not subject to exclusion based on late disclosure. As 14 background, under the scheduling order in this case, expert opinions were subject to a 15 staggered disclosure schedule—the “party with the burden of proof on an issue” was 16 required to provide expert disclosures by a certain date and the “responding party (not 17 having the burden of proof on the issue)” was required to provide expert disclosures about 18 a month later. (Doc. 16 at 2-3.) Both sides were subject to the same deadline for 19 completing expert depositions, which was about a month after the responding party’s 20 disclosure deadline. (Id. at 3.) Plaintiff’s hyper-technical argument, raised for the first 21 time in his reply, is that because Defendants have now clarified that Hyland’s opinions are 22 intended to support Defendants’ affirmative defenses (as opposed to being used to 23 undermine Plaintiff’s claims), they should have been disclosed by the first expert24 disclosure deadline in the scheduling order rather than the second, slightly later one. But 25 even assuming this is correct (and further assuming that Plaintiff did not forfeit this 26 argument by raising it for the first time in his reply, see Zamani v. Carnes, 491 F.3d 990 , 27 997 (9th Cir. 2007)), the fact that Hyland’s opinions were disclosed about one month late 28 would not automatically compel their exclusion. Under Rule 37(c)(1), “[i]f a party fails to 1 provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use 2 that information . . . unless the failure was substantially justified or is harmless.” On this 3 record, any late disclosure was harmless because Plaintiff still received Hyland’s report 4 more than a month before the expert-deposition deadline and was, in fact, able to depose 5 him by that deadline.2 6 III. Defendants’ Motion To Exclude Stokes 7 A. Stokes’s Opinions 8 Plaintiff retained Michael Stokes, whose qualifications are not at issue here, to 9 “calculate[] and revise[] the present value of the loss of earnings, income and fringe 10 benefits sustained by [Plaintiff].” (Doc. 55-1 at 2.) In a report issued on July 10, 2023, 11 Stokes calculated this figure as $749,041. (Id.) When doing so, Stokes assumed that but12 for Plaintiff’s termination, Plaintiff would have worked for an additional 13.5 years as a 13 firefighter. (Id. at 7 [“At the time of his termination, [Plaintiff] was 51 years of age. Given 14 his level of educational attainment, the normal worklife expectancy is 13.5 years through 15 2032.6. At that time, [Plaintiff] would be 64.6 years old.”].) Stokes also used Plaintiff’s 16 past earnings as a firefighter as the foundation for his assumptions about what Plaintiff 17 would have earned during this 13.5-year period. (Doc. 55-1 at 4-5 [Stokes report]; Doc. 18 66-1 at 22 [Stokes deposition].) 19 B. The Parties’ Arguments 20 Defendants argue that Stokes’s opinions should be excluded because they are based 21 on the false assumption that Plaintiff would have worked for another 13.5 years as a 22 firefighter but-for his termination. (Doc. 66 at 2-3.) According to Defendants, this 23 assumption is false because Plaintiff successfully applied for disability benefits in 2020, 24 with a disability onset date of February 20, 2019. (Id.) Defendants conclude: “Stokes’ 25 opinion is based upon incorrect and incomplete facts. He did not know [Plaintiff] is 26 disabled. This fundamental error permeated throughout Stokes’ entire analysis, including [27] 2 Plaintiff acknowledges that “August 11, 2023 . . . is when Defendants disclosed 28 Hyland.” (Doc. 70 at 3.) The deadline to depose experts was September 15, 2023 (Doc. 16 at 3), and Plaintiff deposed Hyland on September 6, 2023 (Doc 65-1 at 36). 1 wrongfully relying upon a ‘normal work life expectancy’ rather than a disability work 2 expectancy, and wrongfully assuming no disability exists in his calculation of [Plaintiff’s] 3 claimed economic damages. If Stokes had known [Plaintiff] is disabled, it would have 4 changed his entire analysis and opinion. Stokes’ error therefore goes beyond creating an 5 area ripe for cross-examination and renders his opinion useless, unhelpful to the jury, and 6 irrelevant.” (Id. at 6.) 7 In response, Plaintiff argues that Stokes’s assumption of a normal worklife 8 expectancy of 13.5 years is not inconsistent with the disability determination because 9 Plaintiff’s “medical retirement only required that he could no longer do a particular job, 10 firefighting” and did not “require him to have a permanent disability,” and indeed he has 11 continued to perform other jobs since his termination. (Doc. 68 at 2-3.) Plaintiff continues: 12 “Here, the facts are in dispute regarding the reasons for Plaintiff’s discharge and whether 13 he could have continued to perform his job if not discriminated against by Defendants. 14 Stokes’ testimony logically advances a material aspect of Plaintiff’s case and should be 15 permitted.” (Id. at 4.) 16 In reply, Defendants argue: “[Plaintiff] cannot ignore, for purposes of his damages 17 calculations, the undisputed fact that he applied for and received disability retirement 18 benefits, or that he averred in his disability retirement application . . . that he was disabled 19 as of February 20, 2019. These facts lead to only one conclusion, which is that, as of 20 February 20, 2019, [Plaintiff] did not have a ‘normal work life expectancy’ to continue 21 working as a fulltime firefighter. Yet, Stokes calculated [Plaintiff’s] damages based upon 22 the false belief that [Plaintiff] would continue to earn full-time firefighter wages. Because 23 Stokes’ opinions are based upon a false assumption, Stokes’ opinions are unduly 24 speculative. [Plaintiff] cannot have it both ways. Either he is disabled and cannot perform 25 the duties of a firefighter (in which case his economic expert must consider his disability) 26 or he is not disabled and can perform the duties of a firefighter (in which case he would 27 not qualify for disability retirement). But he cannot ignore the contradiction between these 28 two positions and claim his theory of the case allows him to claim full-time firefighter 1 wages while simultaneously claiming he is disabled and unable to perform.” (Doc. 69 at 2 2-3.) 3 C. Analysis 4 Although the issue presents a close call, the Court concludes that the asserted flaws 5 in Stokes’s analysis go its weight, rather than admissibility, and that Defendants’ motion 6 to exclude Stokes should therefore be denied. 7 Stokes assumed, for purposes of his calculations, that Plaintiff would have worked 8 for another 13.5 years as a firefighter (until the age of 64.6) and also used Plaintiff’s past 9 earnings as a firefighter as the foundation for his assumptions about what Plaintiff would 10 have earned during this 13.5-year period. If it were undisputed that Plaintiff became 11 permanently disabled as of 2019, such that Plaintiff was thereafter unable to hold any 12 paying job, there is a strong argument that Stokes’s assumptions would simply be too 13 untethered to reality to permit the admission of his opinions. See, e.g., Unknown Party v. 14 Ariz. Bd. of Regents, 2022 WL 4481519 , *11 (D. Ariz. 2022) (“Although experts have 15 broad leeway to rely on assumptions when formulating opinions, there is a limit. One such 16 limit is when an opinion is based on an assumption that is demonstrably and inarguably 17 incorrect.”); Hanna v. Reg’l Trans. Comm’n, 2008 WL 11450865 , *4 (D. Nev. 2008) 18 (“Plaintiff’s expert testimony fails to meet the threshold Rule 702 requirement of assisting 19 the trier of fact because it is based upon a false factual assumption vital to the conclusion 20 Plaintiff was the most qualified applicant.”). 21 However, the evidence here is more nuanced and could lead a reasonable juror to 22 conclude that, notwithstanding the disability finding, Plaintiff retained the ability to 23 continue working and earning wages and will continue to work until the age of 64.6, just 24 as Stokes assumed. (Doc. 68-1 at 3-6 [Plaintiff’s deposition testimony concerning his paid 25 work following the disability finding].) Furthermore, although the disability finding may 26 eliminate the possibility that Plaintiff could have held one particular job—his previous job 27 as a firefighter—following his termination,3 this at most means that Stokes’s assumptions 28 3 During oral argument, Plaintiff’s counsel stated that the Public Safety Personnel Retirement System’s disability finding would not necessarily prevent Plaintiff from || about the amount of wages Plaintiff would have earned from his 13.5 years of posttermination work are incorrect. (Doc. 68-1 at 5 [Plaintiff's deposition testimony that he usually works 35 hours per week, at a rate of $15 per hour, in the job he has held since the 4|| disability determination].) The possibility that Stokes’s calculated damages figure may need to be reduced, because it is based on an inaccurate assumption, is not a reason to 6 || categorically exclude Stokes from testifying. Cf Marsteller v. MD Helicopter Inc., 2018 7\| WL 3023284, *2 (D. Ariz. 2018) (“The challenges to Equals’ opinions and the weaknesses 8 || in his assumptions are issues to be explored on cross-examination.’’). 9 Accordingly, 10 IT IS ORDERED that: 11 1. Plaintiffs motion to exclude Hyland (Doc. 65) is granted in part and || denied in part. 13 2. Defendants’ motion to exclude Stokes (Doc. 66) is denied. 14 Dated this 18th day of September, 2024. [15] 16 Lm ee” 17 f t _o———— Dominic W, Lanza 18 United States District Judge [27] 28 || returning to work as a firefighter. The Court appreciates this clarification and simply notes that, for present purposes, it is unnecessary to explore this issue in further detail. -15-