United States District Court, D. New Mexico
PHILMAR DAIRY, LLC; ARCH DIAMOND, LLC; MOONSTONE DAIRY, LLC; and HENDRIKA DAIRY, LLC; Plaintiffs,
ARMSTRONG FARMS and RANDY ARMSTRONG, Defendants, and RANDY ARMSTRONG, Counterclaimant,
PHILMAR DAIRY, LLC; ARCH DIAMOND, LLC; MOONSTONE DAIRY, LLC; and HENDRIKA DAIRY, LLC; Counter-defendants.
MEMORANDUM OPINION AND ORDER DENYING WITHOUT
PREJUDICE PLAINTIFFS' MOTION TO EXCLUDE EXPERT OPINION
TESTIMONY OF ROBERT CARPENTER, GRANTING IN PART AND DENYING
IN PART PLAINTIFFS' MOTION TO EXCLUDE EXPERT OPINION
TESTIMONY OF JOSEPH ROMIG, AND GRANTING IN PART AND DENYING
IN PART PLAINTIFFS' MOTION TO EXCLUDE EXPERT OPINION
TESTIMONY OF DR. ELIZABETH AUSTIN
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiffs' three Motions
to Exclude Expert Opinion Testimony. [Docs. 118, 119, 120].
Plaintiffs filed their Motion to Exclude Expert Opinion
Testimony of Robert Carpenter [Doc. 118] on May 17, 2019.
They filed their Motion to Exclude Expert Opinion Testimony
of Joseph Romig [Doc. 119] and their Motion to Exclude Expert
Opinion Testimony of Dr. Elizabeth Austin [Doc. 120] on May
20, 2019. Defendants responded to each Motion on May 30,
2019. [Docs. 125-27]. Plaintiffs replied to each Response on
June 12, 2019. [Docs. 131, 133, 134]. The Court held oral
argument on the Motions on July 8, 2019. [Doc. 153]
(clerk's minutes). The Court has considered the briefing,
the relevant portions of the record, the relevant law, and
the oral argument. Being otherwise fully advised in the
premises, Plaintiffs' Motion to Exclude Robert Carpenter
is DENIED WITHOUT PREJUDICE, Plaintiffs' Motion to
Exclude Joseph Romig is GRANTED IN PART and DENIED IN PART,
and Plaintiffs' Motion to Exclude Dr. Elizabeth Austin is
GRANTED IN PART and DENIED IN PART.
Mexico dairies-orally contracted to purchase alfalfa hay from
Defendant Armstrong Farms (located in Dell City, Texas) and
its owner, Defendant Randy Armstrong. [Doc. 1-1] at 13; [Doc.
43] at 4; [Doc. 43-1] at 1-2. Defendants failed to deliver 2,
647 tons of hay and failed to refund the money Plaintiffs
paid for it. [Doc. 1-1] at 15-16. Defendants assert that
their former farm manager, Alfred Vest, discovered that a
lightning-caused fire had destroyed the hay. [Doc. 43-1] at
7-8. They maintain that Plaintiffs held the risk of loss for
the hay when this fire occurred. [Doc. 55] at 4, 6-8.
Plaintiffs contend that Defendants fabricated the existence
of the fire to elude their contractual obligations. See,
e.g., [Doc. 1-1] at 4; [Doc. 43] at 1-2. Plaintiffs filed
suit, claiming that by failing to deliver the hay or refund
its price, Defendants were unjustly enriched, breached their
oral contract with Plaintiffs, committed fraud, and violated
the New Mexico Unfair Practices Act. [Doc. 1-1] at 17-18.
moved for partial summary judgment, arguing that Defendants
retained the risk of loss when the alleged fire destroyed the
hay. [Doc. 43]. The Court denied Plaintiffs' Motion,
finding that genuine issues of material fact existed over (1)
whether the parties orally agreed to shift the risk of loss
to Plaintiffs while Defendants stored the hay on their farm,
and (2) whether the local custom in Dell City established
that parties to hay contracts customarily shifted the risk of
loss to the purchaser before delivery. [Doc. 73] at 6-10. The
Court based its latter holding on the affidavit of Robert
Carpenter, a former hay farmer who averred that hay farmers
near Dell City customarily shift the risk of loss of hay to
the purchaser before its delivery. See [Doc. 55-3] at 1.
is scheduled to begin on August 26, 2019. [Doc. 70] at 1.
Plaintiffs move in the instant Motions to exclude the
testimony of three defense experts. First, they move under
Federal Rule of Evidence 702 to prevent Robert Carpenter from
testifying about the aforementioned Dell City custom. [Doc.
118]. Second, they move under Rules 702 and 403 to exclude
the testimony of Dr. Elizabeth Austin, who will purportedly
testify that, from August 22, 2017, through August 25, 2017,
lightning struck within certain “confidence
ellipses” that on or near the site where Defendants
stored the hay at issue and the surrounding area. [Doc.
120-1] at 12-13, 16. Finally, they move under Rule 702 to
exclude the testimony of Dr. Joseph Romig, who will
purportedly testify, among other things, that lightning in
fact caused the alleged fire and destroyed the hay at issue.
Rule of Evidence 702 governs the admissibility of expert
testimony. It 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
methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The Supreme Court clarified this standard
in Daubert v. Merrell Dow Pharm., Inc., holding that, for a
court to admit expert testimony, the expert must propose to
testify to scientific knowledge and the expert's proposed
testimony must reliably assist the trier of fact to
understand or determine a fact in issue. 509 U.S. 579, 589-91
(1993). The proponent of the expert testimony bears the
burden to establish by a preponderance of the evidence that
the testimony is admissible. Walker v. Spina, 359
F.Supp.3d 1054, 1068 (D.N.M. 2019). Based on the above
standards, to admit any of their expert testimony, Defendants
must establish by a preponderance of the evidence the
following elements: (1) the expert is qualified, (2) she
proposes to testify regarding scientific or specialized
knowledge,  (3) her methodology is reliable, and (4)
her testimony will assist the jury in determining a fact in
expert is qualified if she “possess[es] ‘such
skill, experience[, ] or knowledge in that particular field
as to make it appear that [her] opinion would rest on
substantial foundation and would tend to aid the trier of
fact in [its] search for truth.'” LifeWise
Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.
2004) (quoting Graham v. Wyeth Labs., 906 F.2d 1399,
1408 (10th Cir. 1990)). An expert may testify if the proposed
testimony lies within the “reasonable confines of [her]
subject area.” Ralston v. Smith & Nephew
Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001)
(quoting Compton v. Subaru of Am., Inc., 82 F.3d
1513, 1520 (10th Cir. 1996)). If the expert stays within the
reasonable confines of her subject area, then “a lack
of specialization does not affect the admissibility of [her]
opinion, but only its weight.” Id. (alteration
in original) (quoting Compton, 82 F.3d at 1520). Courts must
liberally construe an expert's qualifications and resolve
any doubts in favor of admissibility. See Walker, 359
F.Supp.3d at 1068-69 (stating that an expert “should
not be required to satisfy an overly narrow test of [her] own
qualifications” (quoting Gardner v. Gen. Motors
Corp., 507 F.2d 525, 528 (10th Cir. 1974)); Hartzler v.
Wiley, 277 F.Supp.2d 1114, 1116 (D. Kan. 2003).
Supreme Court in Daubert addressed the standard for
determining the reliability of an expert's methodology.
It “[did] not presume to set out a definitive checklist
or test. But some general observations are
appropriate.” 509 U.S. at 593. It identified four
factors that help a court determine the reliability of an
expert's methodology: (1) whether the theory, technique,
or methodology could be or has been tested; (2) whether peer
review and/or publication has confirmed the theory; (3) the
known or potential error rate of the theory; and (4) the
level of support for the theory in the community.
Id. at 593-94. “The inquiry envisioned by Rule
702 is, we emphasize, a flexible one.” Id. To
that end, a court need not apply each Daubert factor if the
court deems one or more of them irrelevant to the situation
at hand, Kumho, 526 U.S. at 152-53, and other courts have
analyzed additional factors not mentioned by the Supreme
Court in Daubert, see Daubert v. Merrell Dow Pharm.,
Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (analyzing
whether experts established their opinions independent of the
noted above, Robert Carpenter is a former alfalfa-hay farmer
who worked near Dell City, Texas, for 35 years. [Doc. 118-2]
at 1. He plans to testify that, because the dry climate in
the area protects hay from moisture damage, hay farmers near
Dell City customarily stored hay outdoors on their farms.
Id. at 1-2. Because that practice could open the hay
to other risks, however, Carpenter will testify that
“it was the custom and practice of the farmers to
require the [purchasers] to assume the risk of loss [for the
hay] during the time the hay was stacked on the farmers'
property.” Id. at 2. “That agreement was
sometimes put in writing, but not always.”
Id.; see Id. (“That [risk-of-loss]
term was typical of hay contracts, whether oral or
attack Carpenter's testimony in two ways. First, they
argue that he lacks the qualifications necessary to opine
about the local custom. [Doc. 118] at 11. They believe that
he based his report not on the actions of other Dell City
farmers but solely on his own experience. Id.
According to Plaintiffs, therefore, he lacks qualifications
to testify about the custom in Dell City. Id.
Second, they argue that Carpenter's methodology-relying
on his personal observations during his farming career-lacks
reliability. Id. at 13. The Court rejects each
argument, but will allow Plaintiffs to renew their Motion if
Carpenter testifies at trial that he based his report solely
on how he ran his business.
Carpenter is qualified to testify about the local custom of
alfalfa-hay farmers near Dell City, Texas.
stage of the proceedings, the Court finds that Carpenter
possesses sufficient qualifications to opine on the alleged
custom near Dell City. Carpenter grew alfalfa hay near Dell
City for over 35 years. [Doc. 118-2] at 1. He “was the
largest producer of alfalfa hay in the Dell Valley.”
Id. He “wrote quite a few” contracts.
[Doc. 118-1] at 3. Carpenter “personally made many such
agreements [shifting the risk of loss] with buyers of [his]
alfalfa hay and regularly used written contracts to confirm
such custom and practice.” [Doc. 118-2] at 2. Given his
extensive experience in farming alfalfa hay and drafting
contracts, coupled with his status as the (formerly) largest
producer of alfalfa hay in the area, his testimony about
shifting the risk of loss falls within the reasonable
confines of his subject area-namely, hay farming and contract
negotiating in Dell City.
nonetheless argue that because he largely bases his testimony
on his own experiences using written contracts, Carpenter
lacks the qualifications necessary to opine on the custom
generally near Dell City, especially the custom regarding
oral contracts like the contract here. [Doc. 118] at 2,
11-12. At this stage of the proceedings, the Court disagrees.
It is true that generalized experience does not automatically
qualify a person to testify about a specialized subject. Cf.
Ralston, 275 F.3d at 970 (“[M]erely possessing a
medical degree is not sufficient to permit a physician to
testify concerning any medical-related issue.”).
However, Carpenter does not purport to have knowledge simply
about the hay industry or Dell City in general. His testimony
establishes that he farmed the type of hay at issue-alfalfa
hay-and that he routinely included provisions in his
contracts about risk of loss. Plaintiffs remain free on
cross-examination to attack Carpenter's qualifications on
the grounds that his practice differed from Armstrong's.
See, e.g., [Doc. 118-1] at 2-5. Yet, as his testimony
liberally falls within the reasonable confines-even if not
the exact confines-of his subject area, these complaints go
not to the admissibility of his testimony, but to its weight.
See Ralston, 275 F.3d at 970.
Plaintiffs oversell Carpenter's testimony. He did not
testify that he had no idea how other farmers in the area
shifted the risk of loss. On the contrary, he testified that,
because farmers in the area stored hay outside, “it was
common” for them to shift the risk of loss to the buyer
upon storage of the hay. [Doc. 125-1] at 10. Again, to the
extent there were inconsistencies in Carpenter's
testimony, those alleged inconsistencies affect the weight of
his testimony, not its admissibility.
relying on his personal observations of the Dell City hay
market, Carpenter utilized a reliable methodology to conclude
that the local farmers customarily shifted the risk of loss
before delivery of the hay.
methodology-relying on his experiences as a hay farmer near
Dell City-is sufficiently reliable to merit admission.
“If a[n expert] witness is relying solely or primarily
on experience, then the witness must explain how that
experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.”
Fed.R.Evid. 702 advisory committee's notes to the 2000
amendments. Carpenter explained why, due to Dell City's
dry climate, hay farmers could successfully store hay outside
with little fear of moisture damage. [Doc. 118-2] at 1-2. But
he was not willing to accept the risk of loss while the hay
was stored. So his contracts included clauses shifting the
risk of loss to the buyer upon storage to protect himself
from risks while the hay was stored on his property.
Id. It is for this reason that, based on his
experience, other farmers “practice[d] the same”
as he. [Doc. 118-1] at 5. His experience-including the
regularity with which he included risk-of-loss clauses in his
contracts, Id. at 2, and his observation that other
farmers followed the same practice-is evidence that the local
custom was to shift the risk of loss to the buyer upon
storage of the hay.
qualms about Carpenter's methodology mirror those about
his qualifications. Namely, Plaintiffs argue that he relied
solely on his own personal experiences when formulating his
report, which they believe do not establish any
“custom.” [Doc. 118] at 13. Similarly, they argue
his experiences are inapposite because they included, unlike
the instant case, language shifting the risk of loss in a
written contract. Id. Again, these concerns, at this
time, do not make his testimony inadmissible. Carpenter
testified that “[y]ou can have an agreement [to shift
the risk of loss] that's not in writing.” [Doc.
125-1] at 8. He testified that during his “long
experience as a hay farmer near Dell City, [he] became very
familiar with the different practices of hay farmers in the
area.” [Doc. 118-2] at 1 (emphasis added). When asked
whether other farmers adhered to this practice, Carpenter
replied that they “practice[d] the same” as him
because, due to the protections from moisture offered by the
dry climate, “it was beneficial to the dairymen”
to store the hay outdoors. [Doc. 118-1] at 5. He explained
that this practice proved beneficial to the dairymen because
most of the farmers' customers “worked and lived in
wetter climates where covered storage is necessary” to
protect the hay from moisture damage. [Doc. 118-2] at 2.
Therefore, it does not appear that Carpenter based his
opinion solely on his practice; he relied, at least in part,
on his general knowledge of the local industry.
next argue that Carpenter's failure to identify any
independent study of Dell City custom, or any other person
corroborating his opinion, weighs against admissibility,
[Doc. 118] at 13-14, but such arguments ignore Daubert's
flexible standard. Though peer review, independent testing,
and community support for a theory often determine expert
testimony's admissibility, the applicability of each
Daubert factor changes depending on the exact testimony at
issue. Daubert, 509 U.S. at 593-94. The Court is unsurprised
that Carpenter has not produced independent studies or peer
reviewed articles about Dell City alfalfa-hay customs because
such niche studies would have little applicability outside
the instant litigation. Similarly, Plaintiffs'
disappointment that Carpenter has never before testified as
an expert about Dell City's local trade usage, [Doc. 118]
at 2, matters little when litigation over such issues is
presumably rare. For the above reasons, Plaintiffs'
attempts to undercut his methodology's reliability do not
change the outcome.
the Court has misgivings about Carpenter's testimony.
Though he testified that other farmers in the area
“practice[d] the same” as him, [Doc. 118-1] at 5,
he arguably did not fully explain his basis for that
observation. For example, Carpenter identifies no contracts
or conversations that indicate how he would know that other
farmers shifted the risk of loss as he did. The Court
understands why the dry climate may theoretically allow Dell
City farmers to store crops outside, but both Carpenter's
report and testimony lack detail on how he actually-not
theoretically-knows that other farmers practiced the same as
him. Because Carpenter testified that other farmers practiced
the same as him, his testimony survives this Daubert
challenge. However, if at trial he bases his testimony solely
on his own personal practices, the Court may revisit this
Court therefore finds that at this stage of the proceedings,
Carpenter's reliance on his own experience in and
observations of the Dell City alfalfa-hay market represents a
reliable methodology. Nevertheless, the Court will allow
Plaintiffs to voir dire Carpenter outside the presence of the
jury to ask him just how his personal experience translates
to knowledge about the custom of other farmers in the Dell