Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walker v. Spina

United States District Court, D. New Mexico

January 11, 2019

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA, VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Shavon M. Ayala Ayala P.C. Albuquerque, New Mexico and Anthony James Ayala Law Offices of Anthony James A. Ayala Albuquerque, New Mexico Attorneys for the Plaintiff

          Raul P. Sedillo Allison M. Beaulieu Butt Thornton & Baehr PC Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendants' Motion to Exclude Expert Testimony of William Patterson, filed August 30, 2018 (Doc. 72)(“Motion”). The Court held a hearing on November 21, 2018. The primary issues are: (i) whether the Court should allow William Patterson, an economic consultant from Albuquerque, New Mexico, see Curriculum Vitae at 1, filed September 6, 2018 (Doc. 75), to testify to the hedonic damages that Plaintiff Shirley Walker suffered from her automobile accident with Defendant Gregory J. Spina, who Defendant Valley Express, Inc. employed; and (ii) whether the Court should exclude the Patterson Report (dated June 6, 2017), filed August 30, 2018 (Doc. 72-1). The Court will grant the Motion in part and deny it in part. Pursuant to the United States of America Court of Appeals for the Tenth Circuit and persuaded by other New Mexico federal district court opinions, the Court will preclude Patterson from quantifying S. Walker's hedonic damages or providing a benchmark figure for her hedonic damages. The Court will allow Patterson to testify generally about hedonic damages, including what they are and the factors considered in valuing them. The Court will preclude admission of the Patterson Report at trial.

         FACTUAL BACKGROUND

         The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order at 2-3, 2018 WL 4100944, at *1, filed August 28, 2018 (Doc. 67). The Court incorporates that recitation here. The footnotes in the quotations are in the original.

The Court takes its facts from S. Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely S. Walker's version of events.
On July 23, 2015, Defendant Gregory J. Spina was speeding on U.S. Highway 84/285 in a commercial vehicle that Defendant Valley Express, Inc. owned. See Complaint ¶¶ 6-7, at 2. As Spina approached a red light, he realized that he was going too fast to brake, so, instead of hitting the vehicles stopped side by side in front of him, he attempted to slip between them. See Complaint ¶ 7, at 2. Rather than avoiding the stopped vehicles, however, he sideswiped both of them, causing both cars to roll into the intersection. See Complaint ¶ 7, at 2-3. S. Walker was driving one of the sideswiped vehicles and, because of Spina's actions, suffered physical and emotional injuries. See Complaint ¶¶ 7, 11, at 2-4.

MOO at 2, 2018 WL 4100944, at *1.

PROCEDURAL BACKGROUND
S. Walker sues Spina and Valley Express, asserting negligence, [1] and sues Defendant Dixon Insurance Company, asserting that she has a claim for benefits against it under the [New Mexico Financial Responsibility Act, N.M. Stat. Ann. §§ 66-5-201 to -239] and Raskob[ v. Sanchez, 1998-NMSC-045, 970 P.2d 580] for injuries that Spina's negligence caused. See [S. Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”)] ¶¶ 8-13, at 3-5. Spina and Valley Express removed the case to federal court on the basis of diversity jurisdiction. See Notice of Removal to the United States District Court for the District of New Mexico at 1, filed September 29, 2017 (Doc. 1)(“Notice of Removal”).

MOO at 2-3, 2018 WL 4100944, at *1. The Amended Complaint terminated Defendant Dixon Insurance Company as a Defendant and added, in its place, Defendant Great West Casualty Company. See Amended Complaint at 1.

         S. Walker “indicated in discovery responses that she may call Mr. Patterson to testify regarding economic damages, including loss of household services, future medical expenses, and loss of value of enjoyment of life.” Motion at 2. See generally Patterson Report. On July 27, 2018, the Defendants filed the Defendants' Motion to Exclude Plaintiff's Expert Witnesses William J. Patterson, III, Keith W. Harvie, D.O., and Michael Rodriguez, filed July 27, 2018 (Doc. 58)(“Disclosure Motion”), in which they seek to exclude Patterson because S. Walker did not “provide an expert disclosure.” Motion at 2. The Court addresses the Disclosure Motion in a separate Memorandum Opinion and Order, filed January 9, 2019 (Doc. 111).

         In the Motion, the Defendants describe Patterson's proposed testimony. See Motion at 2-3. The Court summarizes that, and other, information about Patterson here to provide context for the Motion. Patterson is an economic consultant with Legal Economics, in Albuquerque. See Curriculum Vitae at 1. Patterson has a B.A. in economics from Carleton College, in Northfield, Minnesota and has served as an expert witness in several cases in New Mexico state and federal court. See Curriculum Vitae at 1, 4. According to Patterson, the collision with Spina cost S. Walker household services worth $141, 599.00. Motion at 2 (citing Patterson Report at 1). Patterson specifies that S. Walker would pay $1, 000.00 per year for medical expenses, see Motion at 3 (citing Patterson Report at 1). He also lists specific numbers for S. Walker's loss of enjoyment of life. See Motion at 3 (citing Patterson Report at 1). He estimates that S. Walker suffered $10, 000.00 a year in hedonic damages and calculates that the present value of these damages is $102, 707.00. Patterson Report at 1. In the Patterson Report, Patterson includes his calculations for this $102, 707.00 number. See Patterson Report at 4. On Wednesday, April 4, 2018, the Defendants deposed Patterson. See Motion at 2 (citing generally Patterson Report; Deposition of William Patterson (Excerpts) (taken April 4, 2018), filed August 30, 2018 (Doc. 72)(“Patterson Depo.”). The Monday before the Patterson Depo., Patterson received documents on S. Walker. See Motion at 2 (citing generally Patterson Report; Patterson Depo.). The documents -- “the Deposition Transcript of Shirley S. Walker's deposition; each of Ms. S. Walker's discovery responses and the supplements of those responses; medical records from various providers; Senior Olympics documents; and various pleadings, ” Motion at 2 n.1 (citing Patterson Depo. at 72:1-84:23) -- did not change Patterson's opinions, see Response at 2 (citing Patterson Depo. at 6:1-8; id. at 65:23-67:6).

         1.The Motion.

         The Defendants argue that Patterson bases his opinions on “speculation and generalities, ” and not on facts, and that “his methods are not supported by economic principles or literature.” Motion at 5. In the Motion, the Defendants describe Patterson's methodology. See Motion at 2-3. According to the Defendants, “Patterson did not interview Ms. Walker prior to drafting the report of his opinions.” Motion at 2 (citing Patterson Depo. at 32:15-19). The Defendants note that Patterson testified that his calculation for S. Walker's lost value in household services are based on Kathryn E. Walker and Margaret E. Woods' “Time Use, the Value of Household Production of Goods and Services, ” Motion at 2 (citing Patterson Depo. 34:16-23), in which K. Walker and Woods “compiled data regarding time spent on household services for women under 55 who were employed and unemployed, and women over 55 who were employed and not employed, ” Motion at 3, and draw data from a 1967 to 1968 study of 1, 296 families in Syracuse, New York, see Motion at 2. According to the Defendants, “[t]he Study did not take into consideration single women over 55 years of age who were not employed.” Motion at 3 (citing Patterson Depo. at 39:8-22). The Defendants indicate that Patterson assumes such single women belong in the same category as married women over 55 years old but “d[oes] not know whether his assumption [is] correct.” Motion at 3. According to the Defendants, Patterson testified that the $1, 000.00 per year for medical expenses represents a “benchmark figure” and not an actual figure for S. Walker's medical expenses. Motion at 3 (citing Patterson Depo. at 48:20-24; id. at 49:2-50:7; id. at 51:1-16). Further, the Defendants explain that Patterson bases S. Walker's hedonic damages on the value of statistical lives, and “does not know what Ms. S. Walker's specific lost pleasure of life is.” Motion at 3 (citing Patterson Depo. at 56:4-5).

         According to the Defendants, the substance of Patterson's proposed testimony was found inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)(“Daubert”), and Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000), see Motion at 5, and such testimony “routinely is excluded, ” Motion at 5. The Defendants explain that courts and economic literature criticize “hedonic damages, ” and the “disparity of results reached in published value-of-life studies and trouble regarding their underlying methodology” have led courts to reject hedonic damages. Motion at 6. The Defendants indicate that “the trend is away from allowing expert opinion testimony on valuation of hedonic damages.” Motion at 6 (citing McGuire v. City of Santa Fe, 954 F.Supp. 230, 233 (D.N.M. 1996)(Black, J.)). Although the Defendants concede that courts have admitted “explanations of hedonic damages, ” the Defendants aver that Patterson proposes to testify only to inadmissible information on value-of-life studies and the value of S. Walker's hedonic damages. Motion at 7. The Defendants explain that Patterson relies on statistical-life values drawn “from governmental studies, such as wage differential or willingness to pay studies, ” which courts have recognized as “based on assumptions that have not been, and cannot be, validated.” Motion at 8. According to the Defendants, because the statistical-life valuations are anonymous, hedonic damages valuations do not reflect the “injured individuals' loss of enjoyment of life.” Motion at 8. The Defendants further note that Patterson has not “purported] to give an opinion” on the value of S. Walker's loss of enjoyment of life or “a specific value the jury should award, ” but proffers only a “benchmark for the jury to consider.” Motion at 8-9 (citing Patterson Report at 7; Patterson Depo. at 21-53:5). Courts, the Defendants note, have rejected such benchmark figures, because the figures do not reflect individual loss. See Motion at 9. According to the Defendants, Patterson's valuation assumes that S. Walker will live until ninety-one, but this estimation ignores S. Walker's “lifestyle, ” “medical history, ” age, and employment status. Motion at 10. The Defendants additionally argue that a jury can “understand and calculate” hedonic damages, and so, such damages do not aid the jury. Motion at 9. The Defendants further allege that Patterson points to no “peer-reviewed literature” supporting his methodology, Motion at 10, and that Patterson does not know in which category in K. Walker and Woods' “Time Use, the Value of Household Production of Goods and Services” S. Walker belongs, see Motion at 10 (citing Patterson Depo. at 41:11-15).

         The Defendants also contend that Patterson speculates about S. Walker's “future medical expenses.” Motion at 10. Patterson does not know S. Walker's required future medical treatment, or the actual and inflationary rates for her medical treatment. See Motion at 1. Patterson, the Defendants argue, therefore, “proposed general future medical expenses.” Motion at 11. Further, the Defendants aver that S. Walker does not distinguish between “timeframes for different forms of medical treatment, ” Motion at 11, but “lumps all treatment together into one of three general categories, ” Motion at 11. The Defendants note that, although Patterson knows of no future medical expenses, he “proposes” to give the jury “‘benchmark' figures of future expenses.” Motion at 11. The Defendants argue that, given that Patterson bases such figures on “speculative and unidentified treatment, ” the testimony will not help the jury but will instead confuse the jury. Motion at 11.

         2. The Response.

         S. Walker replied on September 6, 2018. See Response to Defendants' Motion to Exclude Expert Testimony of William Patterson at 6, filed September 6, 2018 (Doc. 75)(“Response”). S. Walker begins by asserting that New Mexico law governs the issue, because the Court sits in diversity jurisdiction. See Response ¶ 1, at 1. S. Walker asserts that New Mexico state courts have permitted expert testimony on hedonic damages. See Response ¶ 3, at 2. According to S. Walker, New Mexico courts have repeatedly admitted Patterson's expert testimony on the substance to which he proposes to testify here. See Response ¶ 2, at 2. S. Walker notes that Patterson has a B.A. in economics; has taught economics; has written on “legal-economic topics, ” such as the value of life; and has testified “over 100 times” “in court.” Response at 2. S. Walker indicates that, in Gurule v. Ford Motor Co., No. 29, 296, 2011 WL 2071701, at *9-10 (N.M. Ct. App. Feb. 17, 2011), the Court of Appeals of New Mexico upheld the admission of Patterson's testimony on hedonic damages. See Response ¶ 4, at 2. S. Walker quotes Gurule v. Ford Motor Co.: “We must evaluate the expert's personal knowledge and experience to determine whether the expert's conclusions on a given subject may be trusted.” Response ¶ 4, at 2 (quoting Gurule v. Ford Motor Co., 2011 WL 2071701, at *8). S. Walker also notes that New Mexico has rejected the federal rules for experts and that New Mexico does not apply “the standard of scientific reliability” to experts testifying based on specialized knowledge. Response ¶ 4, at 3 (quoting Gurule v. Ford Motor Co., 2011 WL 2071701, at *8). S. Walker further avers that the Court of Appeals of New Mexico has rejected all arguments that the Defendants raise against Patterson's testimony. See Motion ¶ 4, at 5. S. Walker summarizes that, under New Mexico law, Patterson's testimony will aid the jury; Patterson is qualified to give an opinion on S. Walker's damages; and Patterson will base his testimony on his expertise. See Motion ¶ 4, at 5.

         3. The Reply.

         The Defendants replied on September 20, 2018. See Defendants' Reply in Support of Their Motion to Exclude Expert Testimony of William Patterson at 5, filed September 20, 2018 (Doc. 83)(“Reply”). The Defendants argue that “[t]he admissibility of evidence in diversity cases in federal court is generally governed by federal law, ” Reply at 1 (quoting Sims v. Great Am. Life Ins., 469 F.3d 870, 880 (10th Cir. 2006)), and that the Court should apply “the Federal Rules of Evidence in determining the admissibility of expert testimony on the subject of hedonic damages, ” Reply at 1-2 (internal quotation marks omitted) (quoting BNSF Ry. v. LaFarge Sw., Inc., No. CIV 06-1076 MCA/LFG, 2009 WL 4279849, at *1 (D.N.M. Feb. 9, 2009)(Armijo, J.)). The Defendants reiterate that the Court should limit or exclude Patterson's testimony and repeat their arguments from the Motion. See Reply at 2-3. According to the Defendants, although the Tenth Circuit and New Mexico federal district courts “have allowed economists to testify about the meaning of hedonic damages and how they differ from other damages, ” the Court should exclude computations of such damages. Reply at 4. The Defendants note that S. Walker ignores that a United States Magistrate Judge for the District of New Mexico prohibited Patterson “from testifying regarding benchmark figures or calculations of hedonic damages.” Reply at 4 (citing Fuller v. Finley Res., Inc., No. CIV 14-0883 WPL/GBW, 2016 WL 3854053, at *3 (D.N.M. April 6, 2016)(Lynch, M.J.)). The Defendants request that the Court exclude Patterson's testimony and the Patterson Report from trial, or, in the alternative, limit Patterson's testimony and prohibit him “from testifying regarding calculations of loss of household services, Plaintiff's future medical expenses, and hedonic damages and providing benchmark figures to the jury.” Reply at 4.

         4. The Hearing.

         At the hearing on November 21, 2018, S. Walker indicated her decision not to seek “loss of wages, cost of household services, future medical expenses, or medical care, ” and to seek only hedonic, quality-of-life, damages. See Draft Transcript of Hearing at 8:19-24 (taken November 21, 2018)(A. Ayala) (“Tr.”).[2] The Defendants conceded that this stipulation alleviated many concerns that their Motion raises. See Tr. at 18:20-22 (Ball). The Defendants noted that a remaining dispute involves whether New Mexico law or federal law should govern whether Patterson may testify as an expert to hedonic damages, and argued both that federal law should apply and that, under federal law, the Court should not permit Patterson to testify to such damages. See Tr. at 18:22-19:9 (Ball). The Court indicated that it thought that, in a prior opinion, it had delineated how New Mexico federal district courts approach expert testimony on hedonic damages. See Tr. at 19:12-17 (Court). The Defendants explained that New Mexico federal district courts routinely exclude such testimony. See Tr. at 19:18-23 (Ball). In response to the Court's questions about New Mexico state courts' attitude toward expert testimony on hedonic damages, the Defendants explained that New Mexico state courts permit such testimony, including testimony on benchmark figures for hedonic damages. See Tr. at 20:9-20 (Court, Ball).

         The Court inquired what Patterson would testify. See Tr. at 20:21-22 (Court). The Defendants responded that Patterson will give the jury a figure of $102, 707.00 for S. Walker's hedonic damages, and that Patterson reaches that number by choosing $10, 000.00 a year as a benchmark for S. Walker's lost value of life, multiplying that $10, 000.00 by S. Walker's life expectancy, and adjusting that number to its present value. See Tr. at 20:23-21:5 (Ball); id at 21:8-18 (Ball). The Court questioned why Patterson could not testify to this figure and methodology, because the Court does not know how to make this calculation, and the Defendants explained that no reliable methodology for calculating hedonic damages exists and that New Mexico federal district courts have repeatedly concluded that such testimony is unreliable. See Tr. at 21:19-23:23 (Ball, Court). In response to the Court's question regarding what Patterson could testify, the Defendants noted that Patterson could define hedonic damages for the jury. See Tr. at 24:1-15 (Court, Ball).

         S. Walker indicated that the “real issue in this case, ” Tr. at 25:21-22 (A. Ayala), is whether New Mexico law or federal law should determine whether Patterson can testify to hedonic damages. See Tr. at 25:22-26:2 (A. Ayala). S. Walker complained that, in a New Mexico state court, under Gurule v. Ford Motor Co., Patterson could testify as an expert to hedonic damages, because New Mexico state courts do not apply rule 702 to non-scientific testimony, and expressed that S. Walker suffers from the Defendants' forum shopping. See 25:22-28:11 (A. Ayala). S. Walker admitted that the Defendants' concerns about Patterson's methodology form grounds for impeachment, and noted that Patterson's opinions did not change after he read S. Walker's deposition, medical records, and other documents. See Tr. at 28:13-29:18 (A. Ayala). According to S. Walker, if the Court applies New Mexico law, the Court must decide whether Patterson's opinions have a proper basis and whether he has the knowledge and experience to testify to hedonic damages, and S. Walker notes that, in Gurule v. Ford Motor Co., the Court of Appeals of New Mexico decided these questions in Patterson's favor. See Tr. at 29:18-30:12 (A. Ayala).

         The Defendants responded that, in Sims v. Great American Life Insurance, the Tenth Circuit stated that federal law governs the evidence admitted in diversity cases and that, in Nicholson v. Evangelical Lutheran Good Samaritan Society, Inc., No. CIV 16-0164 JB/KK, 2017 WL 3127799, at *34 (D.N.M. July 21, 2017)(Browning, J.), the Court determined that, in diversity cases, rules 701 and 702 control evidence's admission. See Tr. at 32:9-18 (Ball). The Defendants contended that they should receive federal law's benefits after removing the case to federal court. See Tr. at 32:18-24 (Ball).

         The Court indicated that, from what it remembered, experts cannot quantify hedonic damages for the jury, but that experts can explain that methodologies for quantifying hedonic damages exist and can define hedonic damages. See Tr. at 33:4-18 (Court). The Court stated that it is not inclined to allow Patterson to quantify hedonic damages or to allow S. Walker to introduce the Patterson Report, because the report is hearsay, but the Court promised the parties that the Court would issue an opinion on the question. See Tr. at 33:21-34:5 (Court). This Memorandum Opinion and Order is the promised opinion.

         RELEVANT LAW REGARDING EXPERT TESTIMONY

         “Since the Supreme Court of the United States decided Daubert . . ., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide.” United States v. Gutierrez-Castro, 805 F.Supp.2d 1218, 1224 (D.N.M. 2011)(Browning, J.). “The Court now must not only decide whether the expert is qualified to testify, but, under Daubert, whether the opinion testimony is the product of a reliable methodology.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224. “Daubert . . . requires a court to scrutinize the proffered expert's reasoning to determine if that reasoning is sound.” United States v. Gutierrez-Castro, 805 F.Supp.2d at 1224.[3]

         1. Rule 702.

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:

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.

Fed. R. Evid. 702.[4] Rule 702 thus requires the trial court to “determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” United States v. Muldrow, 19 F.3d 1332, 1337 (10th Cir. 1994). Rule 702 uses a liberal definition of “expert.” Fed.R.Evid. 702 advisory committee's note to 1972 proposed rules (“[W]ithin the scope of this rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called ‘skilled' witnesses, such as bankers or landowners testifying to land values.”). An expert is “required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004). See United States v. Harry, 20 F.Supp.3d 1196, 1243 (D.N.M. 2014)(Browning, J.)(deeming inadmissible testimony on a sex crime's victim's demeanor during an examination, because “demeanor is not always a reliable indicator whether someone is telling the truth, especially about sex -- then no expert testimony is needed. That knowledge is well within the knowledge of jurors and most people.”); United States v. Rodella, No. CR 14-2783 JB, 2014 WL 6634310, at *25 (D.N.M. Nov. 19, 2014)(Browning, J.) (stating that “testimony regarding nationally accepted police standards is irrelevant” to issues of “excessive force and” reasonableness). The proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the pertinent admissibility requirements are met.[5] See Morales v. E.D. Etnyre & Co., 382 F.Supp.2d 1252, 1266 (D.N.M. 2005)(Browning, J.) (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). Once the trial court has determined that expert testimony would be helpful to the trier of fact, a witness “may qualify as an expert by knowledge, skill, experience, training, or education and . . . the expert . . . should not be required to satisfy an overly narrow test of his own qualifications.” Gardner v. Gen. Motors Corp., 507 F.2d 525, 528 (10th Cir. 1974)(internal quotation marks omitted). See United States v. Rodella, 2014 WL 6634310, at *20 (“Because of [the proposed expert's] lack of practical experience, lack of nationwide experience, and lack of an advanced degree in criminology or law enforcement, [the proposed expert's] is not qualified to testify about nationally accepted police procedures and practices.”); United States v. Goxcon-Chagal, 886 F.Supp.2d at 1245 (determining an expert qualified to testify to drug trafficking when he had personal knowledge of the subject from working in the Drug Enforcement Agency for almost fifteen years).

         Courts should, under the Federal Rules of Evidence, liberally admit expert testimony, see United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995)(describing rule 702 as a “liberal standard”), and the trial court has broad discretion in deciding whether to admit or exclude expert testimony, see Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 647 (10th Cir. 1991)(noting the trial court's decision will not be overturned “unless it is manifestly erroneous or an abuse of discretion”). “The Tenth Circuit appears to draw a line between expert testimony regarding credibility and expert testimony regarding voluntariness.” United States v. Ganadonegro, 805 F.Supp.2d 1188, 1214 (D.N.M. 2011)(Browning, J.) (citing United States v. Benally, 541 F.3d 990, 996 (10th Cir. 2008)). “The Tenth Circuit may draw this distinction because, generally, it is the jury's exclusive function to make credibility determinations . . . whereas a court makes a pretrial determination of the constitutional voluntariness of a statement.” United States v. Ganadonegro, 805 F.Supp.2d at 1214 (citation omitted) (citing United States v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001)).

         2. The Standard in Daubert.

         In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert's opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert, 509 U.S. at 594-95; Witherspoon v. Navajo Ref. Co., No. 03-1160, 2005 WL 5988649, at *2 (D.N.M. July 18, 2005)(Black, J.)(citing Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)).[6] The Supreme Court articulated a non-exclusive list of factors that weigh into a district court's first-step reliability determination, including: (i) whether the method has been tested; (ii) whether the method has been published and subject to peer review; (iii) the error rate; (iv) the existence of standards and whether the witness applied them in the present case; and (v) whether the witness' method is generally accepted as reliable in the relevant medical and scientific community.[7] See Daubert, 509 U.S. at 594-95. The court is also to consider whether the witness' conclusion represents an “unfounded extrapolation” from the data; whether the witness has adequately accounted for alternative explanations for the effect at issue; whether the opinion was reached for the purposes of litigation or as the result of independent studies; or whether it unduly relies on anecdotal evidence. See Witherspoon v. Navajo Ref. Co., 2005 WL 5988649, at *3 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). The Tenth Circuit stated the applicable standard in Norris v. Baxter Healthcare Corp., 397 F.3d 878 (10th Cir. 2005):

Rule 702 requires the district court to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1120 (10th Cir. 2004)(quoting Daubert, 509 U.S. at 589 . . .). This obligation involves a two-part inquiry. Id. “[A] district court must [first] determine if the expert's proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his [or her] discipline.'” Id. (quoting Daubert, 509 U.S. at 592 . . .). In making this determination, the district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid. . . .” Id. (quoting Daubert, 509 U.S. at 592-93 . . .). Second, the district court must further inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Daubert, 509 U.S. at 597 . . . .

Norris v. Baxter Healthcare Corp., 397 F.3d at 883-84 (footnote omitted). “The second inquiry is related to the first. Under the relevance prong of the Daubert analysis, the court must ensure that the proposed expert testimony logically advances a material aspect of the case. . . . The evidence must have a valid scientific connection to the disputed facts in the case.” Norris v. BaxterHealthcare Corp., 397 F.3d at 884 n.2 (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995)(on remand from the Supreme Court); Daubert, 509 U.S. at 591). If the expert's proffered testimony fails on the first prong, the court does not reach the second prong. See Norris v. Baxter Healthcare Corp., 397 F.3d at 884. In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court expanded the rules under Daubert to non-scientific expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. at 141 (“We conclude that Daubert's general holding -- setting forth the trial judge's general ‘gatekeeping' obligation -- applies not only to testimony based on ‘scientific' knowledge, but also to testimony ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.