United States District Court, D. Colorado
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
EXCLUDE THE EXPERT REPORT, OPINIONS, AND TESTIMONY OF JEFFREY
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
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.
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
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.)
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
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).
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.
“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)).
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).
raise numerous objections to the admissibility of Mr.
Opp's proposed testimony under Rule 702, ...