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Estes Park Taffy Company, LLC v. The Original Taffy Shop, Inc.

United States District Court, D. Colorado

June 8, 2017

ESTES PARK TAFFY COMPANY, LLC, a Colorado limited liability company; BENJAMIN HOLCOMB; and BRET HOLCOMB, Plaintiffs,
v.
THE ORIGINAL TAFFY SHOP, INC., a Colorado corporation, Defendant.

          ORDER REGARDING PLAINTIFF'S MOTION TO EXCLUDE DEFENDANT'S EXPERT REPORT

          Craig B. Shaffer United States Magistrate Judge

         Shaffer 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.”[1] 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.

         Defendant/Counterclaim 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.”

         Plaintiffs 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.”

         This 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.

         I have reviewed the pending motion and related briefs and exhibits, and the case law cited by the parties. I have also conducted my own research[2] 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.

         ANALYSIS

         Rule 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.[3] 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).

         The 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.”).

         Although 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.”

         The 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 reliability requirements.

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, 152 (1999).

         No 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).[4]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 ...


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