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United States v. Duran

United States District Court, D. New Mexico

December 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PATRICK DURAN, Defendant.

          MEMORANDUM OPINION AND ORDER ON THE UNITED STATES' MOTION IN LIMINE FOR DAUBERT RULING REGARDING THE ADMISSIBILITY AND SCOPE OF DEFENDANT'S PROPOSED EXPERT TESTIMONY

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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.

         Defendant 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.

         LAW

         Federal 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.

         In 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).

         The 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, 593-94 (1993).

         When 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 dixit[1]of 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)).

         DISCUSSION

         The 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 requirements.

         Defendant 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 illustrates this:

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 ...

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