United States District Court, D. New Mexico
UNITED STATES OF AMERICA, and STATE OF NEW MEXICO, ex rel. JOSE HERNANDEZ-GIL, DMD, Relator Plaintiff,
DENTAL DREAMS, LLC A/K/A DENTAL EXPERTS, LLC, an Illinois limited liability company, SAMEERA TASNIM HUSSAIN, DMD, individually and as an organization agent, DENTAL DREAMS, LLC, a New Mexico limited liability company, FAMILY SMILES, LLC, a New Mexico limited liability company, FRANK VON WESTERNHAGEN, DDS, individually and as an organization agent, KOS SERVICES, LLC, an Illinois limited liability company, and KHURRAM HUSSAIN, ESQ., individually And as an organization agent, Defendants.
MEMORANDUM OPINION AND ORDER
matter is before the Court on Plaintiff's Motion to
Exclude Opinions and Testimony of Defendants' Expert
Witness (ECF No. 113). This Court, having considered the
pleadings, motions, briefs, evidence, and relevant law,
concludes Plaintiff's motion to exclude certain testimony
and opinions of Defendants' expert William D. Goren,
Esq., should be granted in part and denied in part as
relevant facts concerning Plaintiff's ADA claim are set
forth more fully in the Court's recently filed Memorandum
Opinion and Order on Defendants' motion for summary
D. Goren is an attorney with experience with ADA law and
compliance issues. See Expert Report of William
Goren 1, ECF No. 113-1. He is the author of four editions of
Understanding the ADA, published by the American Bar
Association, and is a frequent presenter and writer on the
ADA and disability accommodation. Id. Additionally,
he served as a tenured professor and ADA instructional
coordinator, teaching the subject of ADA, among others.
seeks to exclude the following opinions by Mr. Goren: (1) the
sole accommodation on which Dr. Hernandez-Gil insisted was
not reasonable because it posed an undue hardship from an
operational perspective on Defendants' business; (2) Dr.
Hernandez-Gil failed to fulfill his duty to engage in an
interactive process with Defendants concerning reasonable
accommodation for his disability because he broke up the
process; and (3) Dr. Hernandez-Gil's dog, Boscoe, was not
a service animal at the time of Dr. Hernandez-Gil's
employment. Plaintiff did not depose Mr. Goren.
Rule of Evidence 702 provides:
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702 (2011). See also 103 Investors I, L.P.
v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006)
(describing analysis as two-steps: (1) determining whether
expert is qualified and (2) whether the expert's opinion
is reliable under Daubert principles). The touchstone
of admissibility under Rule 702 is helpfulness to the trier
of fact. Werth v. Makita Elec. Works, Ltd., 950 F.2d
643, 648 (10th Cir. 1991).
should consider the following non-exhaustive and
non-dispositive factors in determining whether particular
expert scientific testimony is reliable: whether the
expert's technique or theory can and has been tested; the
theory has been subject to peer review and publication; the
known or potential rate of error of the technique or theory
when applied; the existence and maintenance of standards and
controls; and the general acceptance of the methodology in
the relevant scientific community. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 149-50 (1999); 103
Investors, 470 F.3d at 990 (citing Daubert, 509
U.S. at 593-94). The Daubert Court clarified that
the focus must be solely on the principles and methodology,
not on the conclusions they ...