United States District Court, D. Colorado
ESTES PARK TAFFY COMPANY, LLC, a Colorado limited liability company; BENJAMIN HOLCOMB; and BRET HOLCOMB, Plaintiffs,
THE ORIGINAL TAFFY SHOP, INC., a Colorado corporation, Defendant.
ORDER REGARDING PLAINTIFF'S MOTION TO EXCLUDE
DEFENDANT'S EXPERT REPORT
B. Shaffer United States Magistrate Judge
This matter comes before the court on Plaintiffs/Counterclaim
Defendants' Motion to Exclude Defendant's Expert
Report (doc. #58). Plaintiffs ask this court to
“exclude the report and testimony of Defendant's
expert John E. Weiss pursuant to Federal Rules of Evidence,
Rules 702, 703 and 403.” According to Plaintiffs, Mr.
Weiss's report, and presumably the opinions contained
therein, do not “meet the Daubert/Kumho tests
of relevance and reliability, and as such, should be
excluded.” Relying upon an “Analysis of John
Weiss Report for The Original Taffy Shop” prepared by
their own retained expert, Daniel Hoffman, Plaintiffs contend
that Defendant's survey is fatally flawed through the use
of an over-inclusive target population, biased questions, and
various improper survey procedures.
Plaintiff's Response to Motion to Exclude Weiss Report
(doc. #64) contends that Mr. Weiss was asked “to
explore consumer perceptions of any potential customers of a
dedicated taffy business, whether aware of the specific
dynamics of any given marketplace.” To that end, Mr.
Weiss designed and conducted a survey “in accordance
with generally accepted survey principles.”
Defendant's Response argues that Mr. Weiss's report
and opinions should not be excluded because Plaintiffs
suggest nothing more than a disagreement between competing
expert “as to the proper choice of methods to apply
from a range of generally accepted survey principles.”
filed their Reply to Defendant's Response (doc. #67),
reiterating their position that “the Weiss
Report/Survey has serious and systemic design flaws that
require its exclusion from evidence, ” and that
“Defendant has not met [its] burden to demonstrate that
the Weiss Report/Survey is reliable and trustworthy enough to
be admitted into evidence.”
court held a hearing on April 11, 2017, during which Mr.
Weiss was subjected to extensive direct and
cross-examination. The court also accepted, without
objection, Plaintiffs' proffer that if Mr. Hoffman were
to testify, he would reiterate the information and opinions
set forth in his own written reports, and would identify what
he perceives to be “core fatal flaws” in Mr.
Weiss's methodology and conclusions.
reviewed the pending motion and related briefs and exhibits,
and the case law cited by the parties. I have also conducted
my own research and read the transcript of the hearing on
April 11, 2017 (hereinafter “Transcript of
Proceedings” (doc. #82)). For the following reasons, I
am denying Plaintiffs' motion.
702 of the Federal Rules of Evidence provides that
“[i]f 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.” The rule imposes three requirements for the
admission of expert testimony. First, the expert must be
qualified by specialized knowledge, skill, experience,
training or education to testify on the subject matter of his
or her testimony. Second, the testimony must be
“‘based upon sufficient facts or data, '
‘the product of reliable principles and methods, '
and the product of the reliable application of these
principles and methods to the facts of the case.”
Cook v. Rockwell International Corp., 580 F.Supp.2d
1071, 1082 (D. Colo. 2006). Finally, the proffered expert
testimony must be relevant to an issue in the case and assist
the jury in its deliberations. Ultimately, the proponent of
expert testimony has the burden of establishing the
admissibility of the expert's opinions under Rule 702.
In re Breast Implant Litig., 11 F.Supp.2d 1217, 1222
(D. Colo. 1998).
district court performs an important gatekeeping function in
assuring that each of the foregoing prerequisites is
satisfied. Macsenti v. Becker, 237 F.3d 1223,
1230-34 (10th Cir. 2001). However, in discharging its
gatekeeper responsibilities, the court remains mindful that
“Rule 702 mandates a liberal standard” for the
admissibility of expert testimony. Cook, 580
F.Supp.2d at 1082. The decision to admit or exclude expert
testimony is reviewed for abuse of discretion. Etherton
v. Owners Ins. Co., 829 F.3d 1209, 1216 (10th Cir. 2016)
(noting that an appellate court “must afford
substantial deference to the district court's
application of Daubert”) (emphasis in
original). Cf. Valente v. Oak Leaf Outdoors, Inc.,
No. 14-12892, 2015 WL 4488561, at *2 (E.D. Mich. Jul. 23,
2015) (“Courts take a flexible approach to deciding
Rule 702 motions and have broad discretion in determining
whether to admit or exclude expert testimony.”).
an expert witness is permitted wide latitude to offer
opinions, including those not based on first-hand knowledge
or observation, the opinions must have a reliable basis.
Under Rule 702, admissible expert testimony must be based on
“actual knowledge and not ‘subjective belief or
unsupported speculation.'” Mitchell v. Gencorp
Inc., 165 F.3d 778, 780 (10th Cir. 1999). In addressing
the principles enunciated in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), the Tenth Circuit
has recognized that proposed expert testimony must be
supported by “appropriate validation - i.e.,
‘good grounds, ' based on what is known.”
plaintiff need not prove that the expert is undisputably
correct or that
the expert's theory is “generally accepted”
in the scientific community. Instead, the plaintiff must show
that the method employed by the expert in reaching the
conclusion is scientifically sound and that the opinion is
based on facts which sufficiently satisfy Rule 702's
Mitchell, 165 F.3d at 781 (internal citations
omitted). A trial court has considerable discretion in
determining whether particular expert testimony is reliable.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
single factor should be dispositive in weighing the
reliability of an expert's opinions. Ruiz-Troche v.
Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85
(1st Cir. 1998).Ultimately, the court's inquiry must
focus on three areas: (1) whether the expert's testimony
is based on sufficient facts or data; (2) whether the expert
used reliable principles and methodologies; and (3) whether
the expert applied these principles and methods reliably to
the facts of the case. Cook, 580 F.Supp.2d at
1085-86. If the court concludes that an expert's
testimony satisfies these indicia of reliability, “it
is up to the jury to decide whether ...