United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ON THE UNITED
STATES' MOTION IN LIMINE FOR DAUBERT RULING REGARDING THE
ADMISSIBILITY AND SCOPE OF DEFENDANT'S PROPOSED EXPERT
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the United States'
Opposed Motion In Limine for Daubert Ruling
regarding the Admissibility and Scope of Defendant's
Proposed Expert Testimony [Doc. 92], filed November 15, 2017.
When it comes to expert testimony, the Court is the
gatekeeper. The Court must assess the expert's
qualifications and the reliability of the expert's
opinion before allowing the expert's testimony. The
United States, by its motion, requests the Court exercise its
gatekeeping function as to Defendant's expert and exclude
him from testifying.
is charged with abuse of a child. Doc. 59. The United States
alleges Defendant caused an eight-month old child to suffer
non-impact abusive head trauma. Doc. 92 at 3. Defendant gave
notice that he intends to call Dr. Joseph Scheller, a
pediatric neurologist, as an expert witness “to testify
regarding causation of injury and related matters.”
Doc. 119 at 1. After receiving Dr. Scheller's expert
report for this case, the United States filed the subject
motion. The Court held three hearings on the motion, in which
the Court received exhibits and heard testimony from Dr.
Scheller, Dr. Blaine Hart, and Dr. Leslie Strickler. Docs.
125, 147, and 172.
Rule of Evidence 702 provides that
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.
accordance with Rule 702, the Court must first decide whether
the expert is qualified “by knowledge, skill,
experience, training, or education” to render an
opinion. Then the Court must determine whether the
expert's opinion is reliable by assessing the
expert's underlying reasoning and methodology. Bill
Barrett Corp. v. YMC Royalty Co., LP, 918 F.3d 760, 770
(10th Cir. 2019). The party offering the expert bears the
burden of showing that the expert's testimony satisfies
Rule 702's reliability requirements. United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
Supreme Court outlined five non-exclusive factors for courts
to consider when assessing whether an expert's testimony
satisfies Rule 702's reliability requirements: whether
the theory or technique has (1) been or can be tested, (2)
been peer-reviewed, (3) a known or potential error rate, (4)
standards controlling the technique's operation, and (5)
been generally accepted by the scientific community.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
assessing reliability, the focus “must be solely on
principles and methodology, not on the conclusions that they
generate.” Id. at 595. That said, neither Rule
702 nor Daubert “requires a district court to
admit opinion evidence that is connected to existing data
only by the ipse dixitof the expert. A court may
conclude that there is simply too great an analytical gap
between the data and the opinion proffered.”
Etherton v. Owners Ins. Co., 829 F.3d 1209, 1218
(10th Cir. 2016) (quoting Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997)).
United States does not dispute that Dr. Scheller is qualified
to render an opinion in pediatric neurology. Doc. 180 at 2
(“[Dr. Scheller's] qualifications are sufficient to
continue on and examine the other Daubert
factors.”). The issue for the Court to decide,
therefore, is whether Defendant has shown that Dr.
Scheller's testimony satisfies Rule 702's reliability
argues Dr. Scheller's testimony satisfies Rule 702's
reliability requirements because he relied on the same data
and methodology as the United States' experts. Doc. 177
at 6-8. That is not accurate. Unlike the United States'
experts, Dr. Scheller did not consider Defendant's
statement that “he lost his temper and picked up the
child ‘too rough'” when coming to the opinion
that there “is no evidence that [the child] was a
victim of abusive head trauma.” Doc. 92 at 3; Doc. 92-1
at 3. The following exchange during Dr. Scheller's
cross-examination at the November 19, 2018 hearing
Q. So, Dr. Scheller, it appears that when you testify in the
past in other state court cases that you disregard what a
defendant said happened to the child before it had the
medical episode that ...