United States District Court, D. Colorado
IRA S. JAFFREY, M.D., Plaintiff,
PORTERCARE ADVENTIST HEALTH SYSTEM, Defendant.
ORDER ON MOTION TO EXCLUDE TESTIMONY OF JEFFREY
Y. Wang United States Magistrate Judge
matter is before the court on Defendant PorterCare Adventist
Health System's (“Defendant” or
“PorterCare”) Motion to Exclude Testimony of
Jeffrey Bauer (“Motion to Exclude” or
“Motion”) [#70, filed August 10, 2017]. The
Motion is before the undersigned pursuant to 28 U.S.C. §
636(c) and the Order of Reference dated December 9, 2015.
[#11].The court has reviewed the Motion to
Exclude and the respective briefing, the entire docket, and
the applicable case law. In addition, the court held an
evidentiary hearing on November 15, 2017, including oral
argument. Accordingly, for the reasons set forth below, the
court respectfully GRANTS IN PART and DENIES IN PART the
Motion to Exclude.
court has discussed in detail this action's background in
previous rulings, see, e.g., [#46], and discusses it
here only as it pertains to the pending Motion. Plaintiff Ira
S. Jaffrey (“Plaintiff” or “Dr.
Jaffrey”) initiated this action on October 16, 2015, at
the age of seventy-six (76). [#1]. Plaintiff, a Colorado
licensed physician and board certified oncologist, began
working as a part-time (“locum tenens”)
oncologist at Defendant's facility, Mile High Oncology
(“MHO”), in April 2014. [Id. at
¶¶ 4, 9]. During his locum tenens tenure,
Dr. Jaffrey and PorterCare began discussing a contract
position whereby he would work at MHO as an employee of the
practice. The Parties vigorously dispute what happened next
but, ultimately, Plaintiff ceased working at MHO on or about
July 24, 2014. [Id. at ¶¶ 5-11]. Plaintiff
alleged that Defendant discriminated against him because of
his age in violation of the Age Discrimination in Employment
Act of 1967 (“ADEA” or “Act”), 29
U.S.C. § 621 et seq. (Claim I). [Id.
at ¶ 1, 20]. Plaintiff also brought common-law claims
for breach of contract (Claim II) and promissory estoppel
(Claim III) against Defendant. [Id. at ¶¶
September 9, 2016, Defendant filed its Motion for Summary
Judgment. [#31]. After briefing and argument, the court
granted in part and denied in part Defendant's Motion for
Summary Judgment. [#46]. Specifically, the court held that
genuine issues of material fact precluded summary judgment as
to Claims I and III, and granted summary judgment in
Defendant's favor as to Claim II only to the extent it
alleged a breach of contract claim predicated on the unsigned
employment agreement. [Id.]. Thus, Claims I and III
remained in their entirety for trial, and Claim II remained
to the extent it alleged a breach of contract claim
predicated on the breach of an oral promise to extend
Plaintiff's locum tenens employment with
Defendant. [Id.]. The court then denied
Defendant's Motion to Reconsider on August 10, 2017.
anticipation of the trial set to commence on February 26,
2018, Defendant filed the instant Motion to Exclude.
Plaintiff filed his Response [#73], and Defendant filed its
Reply [#74]. The court held an evidentiary hearing on
November 15, 2017, at which the Parties were permitted to
examine Jeffrey Bauer, PhD (“Dr. Bauer”) as well
as Defendant's expert, George Rhodes, PhD (“Dr.
Rhodes”), and present oral argument. [#80]. Being fully
advised of the premises, the court now turns to considering
whether some or all of the opinions offered by Dr. Bauer
identified in the Motion should be excluded pursuant to Rule
702 of the Federal Rules of Evidence, Daubert v. Merrell
Dow Pharmaceuticals, and their progeny.
Rule 702 of the Federal Rules of Evidence permits:
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. As noted by the Advisory Committee when
the Rule was promulgated, “[a]n intelligent evaluation
of facts is often difficult or impossible without the
application of some scientific, technical, or other
specialized knowledge.” Fed.R.Evid. 702 advisory
committee's note to 1937 rule.
well established that trial courts are charged with the
responsibility of acting as gatekeepers of expert testimony
to ensure that expert testimony or evidence admitted is not
only relevant, but also reliable. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-152 (1999); Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-89
(1993). To fulfill that gatekeeper function, courts within
the United States Court of Appeals for the Tenth Circuit
(“Tenth Circuit”) conduct a two-part inquiry.
First, this court considers whether the expert's
proffered testimony has a reliable basis in the knowledge and
experience of his or her discipline by conducting a
preliminary inquiry into the expert's qualifications and
the admissibility of the proffered evidence, i.e., whether
the reasoning or methodology underlying the testimony is
valid. Cook v. Rockwell Int'l Corp., 580
F.Supp.2d 1071, 1082 (D. Colo. 2006) (citing Butler v.
A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir.
2004)). Second, the court considers whether the proposed
testimony is sufficiently relevant to the issues presented to
the factfinder. See Id. ...