United States District Court, D. New Mexico
SHIRLEY J. WALKER, Plaintiff,
GREGORY J. SPINA, VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.
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
P. Sedillo Allison M. Beaulieu Butt Thornton & Baehr PC
Albuquerque, New Mexico Attorneys for the Defendants
MEMORANDUM OPINION AND ORDER
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.
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
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.
S. Walker sues Spina and Valley Express, asserting
negligence,  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.
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).
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
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).
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).
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
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.
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.
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.”). 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).
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).
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.
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).
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
LAW REGARDING EXPERT TESTIMONY
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.
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. 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. 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
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)).
The Standard in Daubert.
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)). 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. 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 ...