Lockhart v. Techtronic Industries North America Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Dahlia Lockhart, No. CV-20-00938-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Techtronic Industries North America Incorporated, et al., [13] Defendants. [14] 15 At issue is the admissibility of expert testimony provided by Ms. Cynthia Smith on 16 behalf of Plaintiff. The Court considers Defendants’ Motion to Exclude Testimony of 17 Cynthia Smith (Doc. 43, Mot.), Plaintiff’s Response in Opposition (Doc. 45, Resp.), and 18 Defendants’ Reply (Doc. 50, Reply). It finds this matter appropriate for decision without 19 oral argument. See LRCiv 7.2(f). The Court will grant in part and deny in part Defendants’ 20 Motion for the reasons set forth below. 21 I. LEGAL STANDARD 22 Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that 23 any expert testimony provided is relevant and reliable. Daubert v. Merrell Dow Pharm., 24 Inc. (Daubert), 509 U.S. 579, 589 (1999). “Evidence is relevant if it has any tendency to 25 make a fact more or less probable than it would be without the evidence and the fact is of 26 consequence in determining the action.” Fed. R. Evid. 401. The trial court must first assess 27 whether the testimony is valid and whether the reasoning or methodology can properly be 28 applied to the facts in issue. Daubert, 509 U.S. at 592–93. Factors to consider in this 1 assessment include: whether the methodology can be tested; whether the methodology has 2 been subjected to peer review; whether the methodology has a known or potential rate of 3 error; and whether the methodology has been generally accepted within the relevant 4 professional community. Id. at 593–94. “The inquiry envisioned by Rule 702” is “a flexible 5 one.” Id. at 594 . “The focus . . . must be solely on principles and methodology, not on the 6 conclusions that they generate.” Id. 7 The Daubert analysis is applicable to testimony concerning scientific and non8 scientific areas of specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 9 137, 141 (1999). However, the Daubert factors may not apply to testimony that depends 10 on knowledge and experience of the expert, rather than a particular methodology. U.S. v. 11 Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000) (citation omitted) (finding that Daubert 12 factors do not apply to police officer’s testimony based on 21 years of experience working 13 undercover with gangs). An expert qualified by experience may testify in the form of 14 opinion if his or her experiential knowledge will help the trier of fact to understand 15 evidence or determine a fact in issue, as long as the testimony is based on sufficient data, 16 is the product of reliable principles, and the expert has reliably applied the principles to the 17 facts of the case. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579 . 18 The advisory committee notes on the 2000 amendments to Rule 702 explain that 19 Rule 702 (as amended in response to Daubert) “is not intended to provide an excuse for an 20 automatic challenge to the testimony of every expert.” See Kumho Tire Co., 526 U.S. 21 at 152. “Vigorous cross-examination, presentation of contrary evidence, and careful 22 instruction on the burden of proof are the traditional and appropriate means of attacking 23 shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted). 24 II. ANALYSIS 25 In their Motion to Exclude, Defendants offer two arguments in support of excluding 26 Ms. Smith’s testimony: (1) Ms. Smith’s conclusions are unreliable and inadmissible 27 because they are incomplete, and (2) opinions number one, three, and four should be [2] 1 excluded because they consist of legal conclusions. The Court will examine each of these 2 arguments in turn. 3 A. Completeness and Reliability 4 Defendants argue that Ms. Smith’s testimony should be excluded because it is 5 incomplete and therefore unreliable. (Mot. at 9.) An expert witness’s report must contain 6 “a complete statement of all opinions the witness will express and the basis and reasons for 7 them.” Fed R. Civ. P. 26(a)(2)(B)(i); see Kern River Gas Trans. Co. v. 6.17 Acres of Land, [8] 156 F. App’x 96, 102-103 (10th Cir. 2005) (finding expert evidence inadmissible when the 9 party admitted that the report was only a preliminary report); Salgado v. GMC, 150 F.3d 10 735 , 741 n.6 (7th Cir. 1996) (“Expert reports must not be . . . preliminary in nature.”). Rule 11 26 also provides, in part, that “[a]ny additions or changes to . . . information [in an expert 12 witness’s report] must be disclosed by the time the party’s pretrial disclosures . . . are due.” 13 Fed. R. Civ. P. 26(e). 14 Defendants cite the last conclusion of Ms. Smith’s report which states that she 15 “reserves the right to perform additional analyses and to render additional opinions 16 regarding the root cause of failure for the incident housing upon receipt of additional 17 information and test data that remains outstanding.” (Mot. at 5 (quoting Ex. A at 34).) They 18 also cite to statements Ms. Smith made at her deposition. There, she stated she was not 19 prepared to give full and complete opinions because she reserved the right to revise her 20 report. (Mot. at 10.) She also indicated that she would supplement her report and stated that 21 it is “impossible to know” whether the injuries were caused by a design or manufacturing 22 defect, or both. (Mot. at 10.) 23 In her response brief, Plaintiff contends that Ms. Smith’s report is complete and not 24 preliminary in nature. (Resp. at 7.) Plaintiff explains that although she received additional 25 documents from Defendants, “[t]he information provided to Cynthia Smith did not change 26 her . . . January 10, 2022 report” because the pertinent information requested was not 27 available. (Resp. at 5.) For that reason, Ms. Smith did not supplement her report as she 28 previously indicated she might. [3] 1 Ms. Smith’s report is complete, but she can testify only to the information contained 2 in it, as Plaintiff concedes. (Resp. at 8.) The report’s conclusions are not preliminary in 3 nature. Unlike cases where courts have found expert testimony inadmissible for 4 completeness, Ms. Smith’s reported conclusions did not rely on the missing information. 5 Cf. Murray v. Hmshost Corp., No. 07-cv-2056 H(BLM), 2009 WL 702095 , at *1–2 (S.D. 6 Cal. Mar. 16, 2019) (finding the expert’s report incomplete when the expert advised that 7 she could not provide a complete opinion without testimony of investigators in a sexual 8 harassment case); Hoss v. United Parcel Service, No. CV 08-498-N-BLW, 2010 WL 9 672473, at *3 (D. Idaho Feb. 20, 2010) (finding an expert witness report inadmissible 10 because the expert stated that the opinion’s completion relied on a deposition that never 11 took place). Ms. Smith reserved the right to amend her report based on the receipt of 12 additional information; she did not state that her conclusions hinged on that information. 13 Ms. Smith can testify to the conclusions in her report to the extent that they are relevant to 14 a determination regarding manufacturing or design defects. Testimony as to any 15 information or opinions outside the scope of her reported conclusions will not be 16 admissible. Because Ms. Smith is confined to testimony based on the reported conclusions, 17 Defendants will not suffer prejudice. 18 B. Conclusory Statements 19 Defendants also contend that conclusions one, three, and four of Ms. Smith’s report 20 are impermissible legal conclusions. (Mot. at 14.) Federal Rule of Evidence 704 allows an 21 expert to express an opinion on an ultimate issue to be decided by the jury, but the Ninth 22 Circuit has made clear that the propriety of an expert opinion on ultimate issues does not 23 extend so far as to permit an expert to offer legal conclusions. Muhktar v. Cal. State Univ., 24 Hayward, 299 F.3d 1053 , 1065 n.10 (9th Cir. 2002) (“However, an expert witness cannot 25 give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.”). 26 Ms. Smith may testify to conclusions one and four to the extent that her opinions 27 are informed by her experiential knowledge and methodology. As noted above, an expert 28 qualified by experience may testify in the form of opinion if his or her experiential [4] knowledge will help the trier of fact to understand evidence or determine a fact in issue. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579 . Ms. Smith’s conclusions that “[n]o || evidence was found to suggest that” improper use or action on the part of Ms. Lockhart □□ contributed to the failure of the electric blower are not the product of her experiential || knowledge, and indeed, it is the province of the jury to make those determinations. 6 || However, her opinions in conclusions one and four regarding the blower’s storage and use and the significance of the fractography imaging are admissible. 8 Regarding conclusion three, Ms. Smith may not testify about the “typical consumer” to the extent that she is stating a conclusion on the “reasonable person” standard. See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 11 || 1997) (“[a]n expert may offer his opinion as to facts that, if found, would support a 12 || conclusion that the legal standard at issue was satisfied, but he may not testify as to whether 13 || the legal standard has been satisfied.”). What a reasonable person, or typical consumer, would or would not have seen is the province of the jury. But Ms. Smith may testify to her 15 || own observations and analyses of the cracking included in conclusion three. 16 Accordingly, the Court will grant Defendants’ Motion to the limited extent reflected above, but the Motion is otherwise denied. 18 IT IS THEREFORE ORDERED granting in part and denying in part Defendants’ 19 || Motion to Exclude Testimony of Cynthia Smith (Doc. 43), as reflected in this Order. 20 Dated this 29th day of March, 2023. CN 21 “wok: [79] Unig State@District Judge