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Phillips v. Duane Morris, Llp

United States District Court, D. Colorado

May 29, 2014

EDWARD H. PHILLIPS, an individual, Plaintiff,
v.
DUANE MORRIS, LLP, a limited liability partnership, JOHN C. HERMAN, individually and as partner of Duane Morris, LLP, and ALLEN C. GREENBERG, individually and as a partner of Duane Morris, LLP, Defendants.

ORDER DENYING DEFENDANTS' MOTION TO EXCLUDE PLAINTIFF'S EXPERT WILLIAM A. TRINE UNDER FED.R.EVID. 702

ROBERT E. BLACKBURN, District Judge.

The matter before me is Defendants' Motion To Exclude Plaintiff's Expert William A. Trine Under Fed.R.Evid. 702 [#63], [1] filed April 25, 2014. I deny the motion.

I. JURISDICTION

I have jurisdiction over this case pursuant to 28 U.S.C. ยง 1331 (diversity of citizenship).

II. STANDARD OF REVIEW

By this motion, defendants seek to exclude the opinions of plaintiff's designated expert, William A. Trine. Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert witness testimony, 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.

FED. R. EVID. 702. As interpreted by the Supreme Court, Rule 702 requires that an expert's testimony be both reliable, in that the witness is qualified to testify regarding the subject, and relevant, in that it will assist the trier in determining a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct. 2786, 2795-96, 125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The Supreme Court has described the court's role in weighing expert opinions against these standards as that of a "gatekeeper." See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 142 L.Ed.2d 248 (1999).

Under Daubert and its progeny, an expert opinion is reliable if it is based on scientific knowledge. "The adjective scientific' implies a grounding in the methods and procedures of science. Similarly the word knowledge' connotes more than subjective belief or unsupported speculation." Daubert, 113 S.Ct. at 2795. In short, the touchstone of reliability is "whether the reasoning or methodology underlying the testimony is scientifically valid." Id.

The Tenth Circuit employs a two-step analysis when considering the admissibility of expert testimony under Rule 702. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). The first step is codified in Rule 702(a) and inquires whether the expert "is qualified... to render an opinion." Id. A witness may be qualified as an expert by "knowledge, skill, experience, training, or education." FED. R. EVID. 702. In addressing an expert qualifications, the court should examine:

whether the witness proposes to testify about matters growing naturally and directly out of research he or she conducted independent of the litigation, whether the witness developed opinions expressly for purposes of testifying, and whether the field of expertise claimed by the witness is known to reach reliable results for the type of opinion the witness intends to express.

United States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo. 2008). The second step of the admissibility analysis, codified in Rules 702(b), (c), and (d), examines "whether the expert's opinion is reliable." 103 Investors I, 470 F.3d at 990. Pursuant to Rule 702(b), "the proponent of the opinion must show that the witness gathered sufficient facts or data' to formulate the opinion." Crabbe, 556 F.Supp.2d at 1223. This inquiry calls for a "quantitative rather than qualitative analysis." United States v. Lauder, 409 F.3d 1254, 1264 n.5 (10th Cir. 2005).

Analysis under Rule 702(c) "involves two related inquires: (I) what methodology did the witness use to reach the opinion; and (ii) is that methodology generally deemed reliable' in the field in which the expert works." Crabbe, 556 F.Supp.2d at 1222. "[T]he articulation of a methodology usually can be made without reference to the specific opinion or to any of the specific facts in the case; it is simply an explanation of the process the witness used." Id. As for reliability, the question is "whether the reasoning or methodology underlying the testimony is scientifically valid." Daubert, 113 S.Ct. at 2796. In assessing the reliability of the proffered methodology, the court should consider

whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has ...

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