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Mueller v. Swift

United States District Court, D. Colorado

July 25, 2017

DAVID MUELLER, Plaintiff and CounterDefendant,
TAYLOR SWIFT, Defendant and CounterClaimant, and FRANK BELL, and ANDREA SWIFT a/k/a Andrea Finlay, Defendants.



         In this tort action pending under the Court's diversity jurisdiction, 28 U.S.C. § 1332, Plaintiff pursues claims against all Defendants for tortious interference with his employment contract and with related business opportunities, while Defendant-CounterClaimant Taylor Swift (“Swift”) pursues counterclaims for the torts of assault and battery. Now before the Court is Defendants' Motion to Exclude the Expert Report, Opinions, and Testimony of Jeffrey B. Opp. (ECF No. 135 (Defendant's “Motion”).) For the reasons explained below, Defendants' Motion is granted in part and denied in part.

         I. BACKGROUND

         The Court has previously set forth the factual background and allegations in this case in some detail, including in its Order Granting Summary Judgment in Part. (See ECF No. 137.) Familiarity with that factual background is presumed. In summary, Plaintiff worked as an on-air radio personality for a Denver area radio station, KYGO. On June 2, 2013, he attended a backstage “meet and greet” preceding a concert performed at Denver's Pepsi Center by Swift. Swift alleges that during a staged photo opportunity at that event, Plaintiff purposefully and inappropriately touched her buttocks. Plaintiff denies having done so. (See ECF No. 137 at 2-3.) After KYGO was informed of Swift's accusation, Plaintiff was terminated, and this lawsuit followed.

         In the course of litigation, Plaintiff disclosed Mr. Jeffrey B. Opp to testify as an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2) and Federal Rule of Evidence 702. Mr. Opp is anticipated to offer expert economic testimony regarding the value of Plaintiff's claimed damages. (See generally ECF No. 135-2 (Mr. Opp's “Report”).) In particular, and as further detailed below, Mr. Opp calculated lost historical and future earnings allegedly resulting from Plaintiff's termination from KYGO. (Id.)


         A district court must act as a “gatekeeper” in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which provides:

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 proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).

         While an expert witness's testimony must assist the jury to be deemed admissible, Fed.R.Evid. 702(a), it may not usurp the jury's fact-finding function. See Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). The line between what is helpful to the jury and what intrudes on the jury's role as the finder of fact is not always clear, but it is well-settled that “[a]n opinion is not objectionable just because it em braces an ultimate issue.” Fed.R.Evid. 704.

         Ultimately, “the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee's note. “[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system. . . . 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.” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)).

         In addition to analysis under Rule 702, an expert's proposed testimony must be relevant and otherwise admissible. See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th Cir. 2016). To be relevant, expert testimony must “logically advance[ ] a material aspect of the case” and be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (brackets in original). Furthermore, “[e]xpert testimony . . . is subject to exclusion if it fails the Fed.R.Evid. 403 balancing test” Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994).

         III. ANALYSIS

         Defendants raise numerous objections to the admissibility of Mr. Opp's proposed testimony under Rule 702, ...

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