Free Response to Motion - District Court of Arizona - Arizona

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LAW OFFICE OF ROBERT M. GREGORY, P.C. Robert M. Gregory, State Bar No. 021805 1930 S. Alma School Road, Suite A-115 Mesa, Arizona 85210 Telephone: (480) 839-4711 Facsimile: (480) 452-1753 Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. CIV 03-2077-PHX-EHC PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE RE: INFORMATION RELIED UPON BY EXPERT TESTIMONY BY JAY FINKELMAN AFTER HE WROTE HIS REPORT

ROBERT GANT and BETTY GANT, husband and wife,

) ) ) Plaintiffs, ) ) vs. ) ) ROGER VANDERPOOL, Sheriff of Pinal ) County; PINAL COUNTY, a political ) subdivision; JOHN DOES, I­X; JANE ) DOES, I­X; ABC-XYZ CORPORATIONS I- ) X; BLACK AND WHITE PARTNERSHIPS ) I-X, jointly and severally, ) ) Defendants. ) ) ) I. BACKGROUND

(Honorable Earl H. Carroll)

Plaintiffs' human resource expert witness, Dr. Jay Finkelman, testified at his deposition and prepared a report based on information provided by Plaintiffs to him and to Defendants, as required by Rule 26(a)(2)(B). Plaintiffs have not provided Dr. Finkelman with any new information since he prepared his report and since he testified at his deposition, and Plaintiffs have not asked Dr. Finkelman to update his report or modify his deposition testimony; therefore, there was no need for supplemental disclosures as Defendants argue. However, Defendants argue that Dr. Finkelman should not be allowed to testify regarding any "...new opinions he developed since that time", and further argue that his expert report should be considered a "...'non-opinion' to the extent that it relies upon information that he did not Case 2:03-cv-02077-EHC Document 111 Filed 07/19/2006 Page 1 of 4

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possess at the time of the report", and Defendants justify their argument on the basis that Dr. Finkelman did not know the name of the white sergeants that had been promoted to lieutenant or the name of the person(s) who conducted an internal affairs investigation. II. ARGUMENT The admissibility of expert testimony is governed by the Federal Rules of Evidence, primarily Rule 702. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Pursuant to Rule 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. Under Daubert, the district court acts as a "gatekeeper," excluding export testimony that does not meet the standards of reliability required under Rule 702. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997); Kennedy v. Collagen Corp., 161 F.3d 1226, 1229-30 (9th Cir. 1998). The court accomplishes this goal through a preliminary determination that the proffered evidence is both relevant and reliable. Daubert, 509 U.S. at 589-95. Moreover, "[t]he proponent need not prove that the expert's testimony is correct, but that the methodology used by the expert was proper." Daubert, 509 U.S. at 592. A trial court has broad latitude in determining whether an expert's testimony is reliable and also in deciding how to determine the testimony's reliability. United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). However, the Court's inquiry must "focus[] solely on [the] principles and methodology, not on the conclusions that they generate." United States v. Prime, 431 F.3d 1147, 1153 (9th Cir. 2005). "Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." Fresensius Medical Care Holdings v. Baxter International (N.D. Cal. 2006), No. C03-1431 (citing --2-- Document 111 Filed 07/19/2006

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Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004) (citations omitted)) Finally, "...the practice of allowing an expert to educate the jury without necessarily expressing an opinion on the specific facts of the case, or even reaching an opinion at all, is regularly upheld." See, e.g., U.S. v. Rahm, 993 F.2d 1404, 1411 (9th Cir. 1993) ("[N]ot every expert need express, nor even hold, an opinion with regard to the issues involved in a trial. . . . [T]he key concern is whether expert testimony will assist the trier of fact in drawing its own conclusion as to a `fact in issue.'"); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) ("When analyzing the relevance of proposed testimony, the district court must consider whether the testimony will assist the trier of fact with its analysis of any of the issues involved in the case. The expert need not have an opinion on the ultimate question to be resolved by the trier of fact in order to satisfy this requirement."); Erickson v. Baxter Healthcare, Inc., 151 F. Supp. 2d 952, 968 (N.D. Ill. 2001) ("an expert may explain principles without applying them or offering an opinion on the ultimate issue"). Defendants' attempt to narrow and/or restrict the testimony of Dr. Finkelman does not comport with the provisions of Rule 702 for the inclusion of expert testimony, and should be denied.

III.

CONCLUSION For the reasons provided herein, the Court should not preclude Dr. Finkelman from

offering opinions other than those expressed in his report and deposition, and he should be allowed to rely on any information that he may hereafter review. RESPECTFULLY SUBMITTED this _13th__ day of July, 2006. LAW OFFICE OF ROBERT M. GREGORY, P.C. By: __s/ Robert M. Gregory_________________ Robert M. Gregory Attorney for Plaintiffs

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ORIGINAL of the foregoing electronically filed this _13th_ day of July, 2006, with: Clerk of the Court United States District Court District of Arizona ONE COPY of the foregoing mailed this _13th_ of July, 2006, to:
Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Phoenix, AZ 85003-2218

COPY of the foregoing electronically transmitted via the CM/ECF system this _13th_ day of July, 2006, to:
Georgia A. Staton JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, Arizona 85012

Attorneys for Defendants

___s/ Robert Gregory___________

Case 2:03-cv-02077-EHC

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