Opinion
Civil Action 21-cv-03421-WJM-STV
03-09-2023
DANIEL R. GOODWIN, Plaintiff, v. CAROL SMITH CHAMBERS, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This matter is before the Court on Plaintiff's Motion for Rebuttal of Defense Expert Disclosure (the “Motion”) [#82]. The Motion has been referred to this Court. [#86] The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions.For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART, and that Defendant be ORDERED to supplement Porter Richardson's expert report.
Additionally, neither party has requested a Daubert Hearing regarding these motions and the Court finds that none is necessary.
I. BACKGROUND
This matter revolves around the title transfers and alleged sale of various motor vehicles. According to Plaintiff, the title transfers were procured by fraud and constitute conversion of Plaintiff's property. [See ##1; 104] According to Defendant, the vehicles were put up as insufficient collateral on a loan, and properly sold upon Plaintiff's default per the parties' agreement. [See ##3; 107] In support of Defendant's case, Defendant has enlisted the aid of two purported experts: the first, Curt Baggett, to establish that Plaintiff's signature appears on various documents relevant to the case; and the second, Porter Richardson, to establish the value (or lack thereof) of the vehicles allegedly assigned to Defendant by Plaintiff as collateral. [##41; 41-1 at 37-40; 41-2] The Motion, liberally construed,challenges the admissibility of these experts' testimony under Federal Rule of Evidence 702. [See ##82 at 1 (“Filing this MOTION . . . Under Federal Rules of Evidence 702, . . . Under Daubert.”); 87 (“The Court CONSTRUES 82 Motion for Rebuttal as a Motion to Strike Expert Witness(es).”)] Defendant filed a response on November 6, 2022 [#89], and no reply has been filed.
Plaintiff proceeds pro se. “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).
II. LEGAL STANDARD
The admissibility of expert testimony in federal courts is governed by Federal Rule of Evidence 702, which states:
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.
Under this rule, the Court must “perform[] a two-step analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). First, it must determine whether an expert is qualified, based on “knowledge, skill, experience, training, or education.” Estate of Grubbs v. Weld Cnty. Sheriff's Office, 16-cv-00714-PAB-STV, 2018 WL 3145629, at *3 (D. Colo. June 26, 2018). Then, it “must assess whether the specific proffered opinions are reliable.” Id. Rule 702 thus imposes on the district court a “gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). In this role, the Court must also ensure that the proffered expert testimony will assist the trier of fact. See Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 156 (1999).
“[C]ourts are in agreement that Rule 702 mandates a liberal standard for the admissibility of expert testimony.” Cook v. Rockwell Intern. Corp., 580 F.Supp.2d 1071, 1082 (D. Colo. 2006) (citing Daubert, 509 U.S. at 588). Accordingly, the trial court has “broad discretion . . . both in deciding how to assess an expert's reliability, including what procedures to utilize in making that assessment, as well as in making the ultimate determination of reliability.” Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.2003); see also Kumho Tire, 526 U.S. at 141-42. “Cross-examination and the presentation of contrary evidence continue to be appropriate means of challenging shaky but admissible evidence.” Davies v. City of Lakewood, No. 14-cv-01285-RBJ, 2016 WL 614434, at *1 (D. Colo. Feb. 16, 2016). The proponent of the challenged expert testimony has the burden of establishing admissibility. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (citing Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001)).
III. ANALYSIS
The Court first considers the admissibility of Mr. Baggett's opinions based on Mr. Baggett's expert report, and then considers the admissibility of Mr. Richardson's opinions based on Mr. Richardson's expert report.
A. MR. BAGGETT'S REPORT
Mr. Baggett conducted an examination of two questioned signatures to determine their authenticity by comparing the questioned signatures to known signatures. [#41-1 at 37] Mr. Baggett concluded that “the questioned signatures of [Plaintiff] w[ere] written by the same person of the [known] signatures,” “[Plaintiff] was the author of the signatures” on the questioned documents, and “[Plaintiff] did indeed author his own signatures” on the questioned documents. [#41-1 at 39-40]
Plaintiff makes no discernable objection to Mr. Baggett's qualifications or his methodology in determining that Plaintiff authored the signatures at issue. [#82] Instead, Plaintiff objects on the ground that “[n]o where in any way did Mr. Baggett confirm the signatures are not cut and pasted” onto the questioned documents. [Id. at 4] As an initial matter, “Rule 702 does not require an expert to categorically exclude every single alternative” in coming to an admissible conclusion. Heatherman v. Ethicon, Inc., No. 1:20-CV-01932-RBJ, 2020 WL 5798533, at *4 (D. Colo. Sept. 29, 2020) (citing Etherton v. Owners Ins. Co., 829 F.3d 1209, 1222 (10th Cir. 2016)). This is especially true when the Motion appears to be the first instance in which Plaintiff has asserted that the signatures at issue were cut-and-paste. Indeed, Plaintiff's apparent argument in the Motion itself is that “Defendant Ms. Chambers became confident in signing Plaintiff['s] signature on Official State documentation”-apparently implying that Defendant forged Plaintiff's signature (as opposed to cutting and pasting the signature) on the questioned documents. [#82 at 4]
Moreover, Plaintiff's cited flaw with Mr. Baggett's opinion-that it does not rule out or address whether the signatures were cut-and-paste-goes outside the scope of Mr. Baggett's opinion. After comparing the questioned signatures to known signatures of Plaintiff, Mr. Baggett concludes that Plaintiff “authored” the questioned signatures. [#41-1 at 39-40] Because Mr. Baggett was unable to examine the original documents and conduct an “ink or paper examination,” he notes that his observations were limited to the appearance of the signatures themselves-such as the “size, shape, form, beginning, ending, spacing, curves, angles, height, width, added or missing letters, or an absence of regular writing habits”-as opposed to features of a signature indicating how it ended up on a document-such as the “impression created by the pressure of a writing instrument.” [Id. at 38] Mr. Baggett's conclusion is therefore limited to whether Plaintiff's signature that appears on the questioned document was authored by Plaintiff, and is otherwise silent as to how that signature may have gotten on the document or the authenticity of the document as a whole. [Id. at 39-40] Plaintiff is “free to attack the weaknesses [he] perceive[s]” in Mr. Baggett's conclusion that Plaintiff “authored” the signatures and the relevance of any such authorship to the dispute at hand “through ‘cross examination . . . and presentation of contrary evidence.” Heatherman, 2020 WL 5798533, at *4 (quoting Murphy-Sims v. Owners Ins. Co., No. 16-CV-0759-CMA-MLC, 2018 WL 8838811, at *7 (D. Colo. Feb. 27, 2018)).Accordingly, the Court RECOMMENDS that the Motion be DENIED as it relates to Mr. Baggett's report.
The Court notes that the full quote from Heatherman and Murphy Sims also allows for the availability to “attack [any perceived] weaknesses” through “rebuttal expert testimony.” Heatherman, 2020 WL 5798533, at *4; Murphy-Sims, 2018 WL 8838811, at *7. Plaintiff was free to retain his own experts, and his deadline for doing so was extended multiple times. [##31; 35; 44] Plaintiff failed to submit any expert disclosures, rebuttal or otherwise, and his deadline for doing so has long passed.
B. MR. RICHARDSON'S REPORT
Mr. Richardson provided a variety of opinions regarding the condition of some of the vehicles at issue, and their corresponding value. While Mr. Richardson's distinct opinions are not clearly delineated, Mr. Richardson essentially opines on the condition, estimated repair cost, and estimated resale value of each of the vehicles that he personally inspected. [See #41-2] Plaintiff asserts that Mr. Richardson is not qualified to offer these opinions because he “is not a Certified Automotive Service Technician.” [#82 at 5-6]
The Court notes that Mr. Richardson's report contains Defendant's observations and opinions-not Mr. Richardson's-regarding a certain motorhome. [#41-2 at 4-6] It is unclear why this section is included in Mr. Richardson's report, as it quite simply is not an opinion of Mr. Richardson. Accordingly, the Court RECOMMENDS that Mr. Richardson not be permitted to present any expert testimony regarding the motorhome, since his report does not contain any of his own opinions regarding that vehicle. The report also contains an unidentified individual's narrative regarding how the vehicles were stored, the items found in certain vehicles, and communications with Plaintiff regarding the titles for the vehicles and Plaintiff's retirement funds. [#41-2 at 4] No part of this narrative contains specialized or technical information requiring expert testimony, and the Court disregards its inclusion in Mr. Richardson's report.
“The standard for [determining an expert's qualification] is whether the witness is an expert on the subject in question based on his knowledge, skill, experience, training or education.” Cook, 580 F.Supp.2d at 1084. “The Tenth Circuit and other courts have held that this standard should be construed and applied liberally.” Id. (citing United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir.1995)). “[A]n expert need not . . . have particular academic credentials” to be qualified. United States v. Kelley, 6 F.Supp.2d 1168, 1182 (D. Kan. 1998) (quoting United States v. Carswell, 922 F.2d 876 (D.C.Cir.1991)). Nonetheless, “[t]he expert's proffered testimony must, of course, be within the scope of his established expertise.” Cook, 580 F.Supp.2d at 1084.
The Court finds that Mr. Richardson is qualified to present his proffered opinions. Mr. Richardson has an extensive mechanical background relating to automobiles, motorcycles, and boats. [#41-2 at 1-2] Regarding automobiles, Mr. Richardson grew up working in an automotive repair shop, and currently operates a “vehicle rotisserie” that he uses to split automotives and then reassemble them, and he expresses a knowledge of “every aspect of mechanical repairs for all makes of cars and trucks.” [Id. at 1] Mr. Richardson oversaw and operated an auto shop for four years, and continues to perform mechanical and body work repairs on a broad range of cars and trucks. [Id.] Mr. Richardson specifically specializes on Corvette maintenance and service, and performs restorations and reconfigurations for owners within an extensive network that he has cultivated. [Id.] Regarding motorcycles, Mr. Richardson ran a Harley-Davidson dealership for five years, where he worked as the sole mechanic and rebuilt or repaired “literally hundreds, if not thousands of motorcycles, most of them Harley-Davidsons.” [Id.] Regarding boats, Mr. Richardson is currently the owner of a boat shop, where he began working at ¶ 2006. [Id. at 1-2] In this capacity, Mr. Richardson provides both routine services as well as more extensive repair and maintenance services for “anything . . . on a boat that needs to be repaired.” [Id.] Finally, Mr. Richardson attends vehicle auctions in both personal and professional capacities, where he has further developed his knowledge regarding a vehicle's value. [Id. at 1]
Thus, Mr. Richardson has demonstrated a lifetime of experience and knowledge diagnosing, servicing, maintaining, repairing, and selling automobiles, motorcycles, and boats in a vocational capacity. Kelley, 6 F.Supp.2d at 1182 (“[M]ost cases upholding a trial court's decision to qualify an expert on the basis of practical experience have involved knowledge gained in something more than a casual manner.” (quoting Carswell, 922 F.2d at 878)). While Mr. Richardson's listed experience is somewhat general, his opinions- which consist of basic mechanical diagnoses, cost estimates, and resale values of vehicles that he personally inspected-do not exceed the confines of Mr. Richardson's general mechanical and service knowledge. Cook, 580 F.Supp.2d at 1084 (“Expertise in a specialized area directly related to the issue in question is generally not required, however, as long the expert ‘stays within the reasonable confines of his subject area.'” (quoting Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir.2001)); see also Wright v. Amazon.com, Inc., No. 2:19-CV-00086-DAK, 2020 WL 6204401, at *3 (D. Utah Oct. 22, 2020) (finding that “[c]ertainly, [an expert's seven-year] experience as a mechanic qualifies him to opine about mechanical issues with the motorcycle,” but that the expert was not qualified to opine on more specialized matters such as “the adequacy of the design, manufacture, and function” of brake levers at issue in a products liability case). Once again, to the extent that Plaintiff seeks to attack Mr. Richardson's opinions, based perhaps on Mr. Richardson's experience, Plaintiff may do so “through ‘cross examination . . . and presentation of contrary evidence.” Heatherman, 2020 WL 5798533, at *4 (quoting Murphy-Simms, 2018 WL 8838811, at *7); see also Ralston, 275 F.3d at 970 (“[A] lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight.” (quoting Compton v. Subaru of America, Inc., 82 F.3d 1513, 1520 (10th Cir.1996)). Accordingly, the Court RECOMMENDS that the Motion be DENIED as it relates to Mr. Richardson's expert qualifications.
The Court does, however, note a deficiency with Mr. Richardson's report under Rule 26(a)(2)(B). Specifically, the report does not contain the required “statement of the compensation to be paid for the study and testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B)(vi). The Court RECOMMENDS that Defendant be ordered to supplement Mr. Richardson's expert report within fourteen (14) days from a ruling on this Motion to correct this deficiency. See Fed.R.Civ.P. 26(e); Gillum v. United States, 309 Fed.Appx. 267, 269 (10th Cir. 2009) (“Rules 26(e)(1) and (2) require a party to supplement the expert's written report and deposition testimony where the prior information is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” (quotation omitted)).
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Plaintiff's Motion for Rebuttal of Defense Expert Disclosure be: (1) GRANTED to the extent it seeks to exclude any testimony by Mr. Richardson about the motorhome listed on pages 4-6 of Mr. Richardson's report; (2) DENIED to the extent it seeks to exclude any of the other testimony listed in Mr. Richardson's report; and (3) DENIED to the extent it seeks to exclude Mr. Baggett's opinions in Mr. Baggett's expert report. The Court further RECOMMENDS that Defendant be ordered to supplement Mr. Richardson's expert report within fourteen (14) days from a ruling on this Motion.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).