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Martensen v. Koch

United States District Court, D. Colorado

February 4, 2015

KIRBY MARTENSEN, Plaintiff,
v.
WILLIAM KOCH, and DOES 1-25, Defendants.

ORDER DENYING PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY OF LOUIS J. FREEH

ROBERT E. BLACKBURN, District Judge.

The matter before me is plaintiff's Motion In Limine To Preclude Expert Testimony of Louis J. Freeh [#220], [1] filed August 29, 2014. I deny the motion.

I. JURISDICTION

I have jurisdiction over this case pursuant to 28 U.S.C. ยง 1332 (diversity of citizenship).

II. STANDARD OF REVIEW

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. 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).

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 Tenth Circuit employs a two-step analysis when considering the admissibility of expert testimony under Rule 702. See 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006). Plaintiff's motion implicates only the first, codified in Rule 702(a), which examines, inter alia, whether the expert's testimony "will help the trier of fact to understand the evidence or determine a fact in issue." FED. R. EVID. 702(a).[2] This inquiry "goes primarily to relevance, " Daubert, 113 S.Ct. at 2795, but the court also may consider other factors, such as whether the testimony goes to a matter within the common knowledge and experience of jurors, or whether it usurps the jury's role in determining an ultimate issue of fact or the court's role to instruct the jury on the law, see United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.), cert. denied, 127 S.Ct. 420 (2006).

The trial court has broad discretion in determining whether expert testimony is sufficiently relevant to be admissible. See Truck Insurance Exchange, 360 F.3d at 1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000). The overarching purpose of the court's inquiry is "to make certain that the expert... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Goebel v. Denver and Rio Grand Western Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire, 119 S.Ct. at 1176). However, Rule 702 is properly construed as a rule of inclusion rather than one of exclusion, and "the rejection of expert testimony is the exception rather than the rule." FED. R. EVID. 702, Advisory Committee Note. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 113 S.Ct. at 2798.

III. ANALYSIS

The facts of this case are well known to the parties and need to be repeated at length here. This motion specifically addresses the propriety vel non of the opinions of defendant's expert, Mr. Louis J. Freeh. Mr. Freeh has been designated to opine that the internal investigation (and defendant's involvement therein) into anonymous allegations implicating plaintiff and others in corporate fraud, which ultimately led to plaintiff's termination, were consistent with best corporate practices. Mr. Freeh will testify further as to the propriety of the way in which plaintiff's termination was handled. These opinions are offered to countermand plaintiff's suggestion that the investigation was flawed, improper, and/or a pretext for silencing plaintiff as a corporate whistleblower, as well as to give context to the events surrounding plaintiff's termination

Plaintiff first argues that Mr. Freeh's opinions will not be helpful to the jury because the issue to be decided in this case is simple and does not require illumination or explication by an expert. I disagree.

The "touchstone" of admissibility of expert testimony is its helpfulness to the trier of fact. When the normal experiences and qualifications of laymen jurors are sufficient for them to draw a proper conclusion from given facts and ...

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