Opinion
Civil Action No. O1-M-540
February 25, 2002
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR 104(A) HEARING AND TO STRIKE
ORDER ENTERED BY MAGISTRATE JUDGE O. EDWARD SCHLATTER
INTRODUCTION
Plaintiff, Carri Rawlins, is a former bus driver for Colorado Springs Transit, a bus system that is operated by Laidlaw Transit Services, Inc. (collectively, "defendant"). She has sued defendant on claims of hostile work environment and constructive discharge. She claims in her Complaint that a particular passenger, Rena Abeyta, sexually harassed her on a continuous and ongoing basis, and claims that defendant failed or refused to correct the situation. Abeyta was known to defendant to be a person who is mentally or developmentally disabled, and was provided with special transportation privileges.
Plaintiff has filed a motion in which she asks that the Court strike the testimony of defendant's expert witness, Thomas Deniston. Mr. Deniston is tendered by defendant as a person who will offer expert opinions "in the area of discrimination against the disabled in public accommodations," and will offer "factual testimony relating to Laidlaw's request for consultation [from an expert] and the consultation that he provided prior to the filing of this lawsuit." Deft's Response at 1. Defendant states, "Mr. Deniston will opine about the legal and practical requirements for making Laidlaw services accessible to Ms. Abeyta and, as stated in his report, the competing interests faced by Laidlaw under the facts of this case." Id. at 2.
Mr. Deniston's complete expert report is as follows:
We have reviewed the initial complaint, your response to it, the deposition of Lawrence Tenenholz, and Volume 1 of the deposition of Carri Rawlins. It is our opinion the only Americans with Disabilities Act (ADA) issue was ensuring the act was not violated by Springs Transit in their efforts to protect their driver, Carri Rawlins, while not violating the ADA protection clauses provided for Rena Abeyta, a person with a disability.
The ADA is eleven years old and there are still very few people who understand its regulations. Many await the court's decisions before attempting to interpret any of the regulations. Couple that with the fact that Springs Transit is a city property, managed by a private contractor who must answer to the city, the driver's union and its passengers. With so many levels of interest involved, it is clear that Springs Transit management moved as expeditiously as possible to protect their driver, Carri Rawlins.
Pltf's Motion to Strike, Ex. 1.
I find that defendant has not provided an expert report that complies either with the requirements of Fed.R.Civ.P. 26(a)(2)(B) or with the guidelines that are established in Daubert and Kumho. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). I will grant plaintiff's motion to the extent that it seeks to strike Mr. Deniston as an expert witness. However, to the extent that plaintiff's motion seeks to strike Mr. Deniston as a factual witness, I have been shown no evidence that demonstrates that he should be disqualified to testify as such.
DISCUSSION
Plaintiff argues in her motion that the testimony of Mr. Deniston is inadmissible for two reasons. First, plaintiff argues that the essence of the testimony of Mr. Deniston involves the appropriate application of a legal standard, and that such testimony would constitute "an impermissible invasion of the court's responsibility to determine the law and to instruct the jury accordingly." Id. at ¶ 7. Sprecht v. Jensen, 853 F.2d 805 (10th Cir. 1988). Second, plaintiff argues that Mr. Deniston's conclusion is inadmissible because "there is no indication in his resume or report that he is qualified to express it or that it is based upon reliable data or statistics," or that Mr. Deniston is qualified by special training or expertise to offer the opinions that he offers. Id. at ¶ 8.
In response, defendant argues that "Mr. Deniston may render opinion testimony within the general scope of his expertise as to any issue that aids the jury's deliberation." Deft's Response at 7. Defendants assert that "[a] qualified witness may testify in the form of an opinion if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and method, and (3) the witness has applied the principles and methods reliably to the facts of the case."Id. at 9, citing Fed.R.Evid. 702.
As general propositions of the law, defendant has stated the law correctly. However, nothing in the report of Mr. Deniston reflects that his opinion meets the test. In fact, I am hard pressed to find that Mr. Deniston's so-called expert report even contains an opinion that qualifies as expert in nature. The entire report is quoted above, and the only opinion that appears to be stated in that report is Mr. Deniston's opinion that "Springs Transit management moved as expeditiously as possible to protect their driver, Carri Rawlins." Mr. Deniston provides no facts or data, no methodology, and no evidence that any methodology was applied to any data. "Providing only an ultimate conclusion with no analysis is meaningless." Huey v. United Parcel Service, Inc., 165 F.32d 1084, 1086 (7th Cir. 1999).
Mr. Deniston's letter does not qualify as an "expert report" under Fed.R.Civ.P. 26(a)(2)(B) or serve the purposes of such a report. The central purposes of an expert report are (a) to provide the opposing party with an opportunity to determine whether a deposition of the expert is needed and/or whether a rebuttal expert is needed, and (b) to provide the court with sufficient information that the court may perform its role as gatekeeper pursuant to the mandates of Daubert. Neither of these factors is satisfied by Mr. Deniston's letter. See, e.g., Hall v. United Parcel Service, 2000 WL 554059 at *2 (D.Kan. 2000) (expert report that failed to set forth even the most fundamental disclosures stricken as patently defective under Rule 26(a)(2)(B); Mounger v. Goodyear Tire Rubber Co., 2000 WL 1466198 *3 (D.Kan. 2000) (same).
In Daubert, the United States Supreme Court held that trial courts must engage in a "gatekeeping" role with regard to the introduction of expert testimony. Daubert, 113 S.Ct. at 2796. In considering scientific or expert testimony, the courts are concerned, in part, with the application of Rules 104 and 702 of the Federal Rules of Evidence.
Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.Id. Once the court is aware that scientific evidence is at issue, judges are obligated to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 2795. The Supreme Court stated, "Rule 702 . . . clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify." Id.
To carry out its role as gatekeeper, the Supreme Court held that trial courts must weigh and evaluate the admissibility of expert testimony according to several factors, including the following: (1) whether the theory or technique at issue has been subjected to testing, (2) whether the theory or technique has been subjected to publication and peer review, (3) whether the theory or technique has a known or potential rate of error, and (4) whether the theory or technique has achieved general acceptance in the particular technical or scientific community. Id. at 2797-98. The Supreme Court has emphasized that "the test of reliability is `flexible, "' and that Daubert's list of specific factors "neither necessarily nor exclusively applies to all experts or in every case."Kumho, 119 S.Ct. at 1171.
Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.Id.
In the Kumho case, the Supreme Court was asked to decide whether the gatekeeping role of a trial judge is limited to an evaluation of "scientific testimony" only, or whether the same role should be performed with regard to all expert testimony. The Supreme Court held that the language of Rule 702 "makes no relevant distinction between `scientific' knowledge and `technical' or `other specialized' knowledge." Id. at 1174. Thus, Daubert's general principles apply to all expert matters which are described in Rule 702. Id. at 1175. Regardless of the scientific or technical field from which an expert springs, the objective of the gatekeeping requirement is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 1176. The focus of the court's inquiry must be "solely on principles and methodology, not on the conclusions that they generate." Daubert, 113 S.Ct. at 2797.
To the extent that defendant wishes to elicit testimony from Mr. Deniston that qualifies as expert opinions, defendant has failed in its obligation to tell the court and counsel the nature of those opinions, and the bases and methodologies that underlie the opinions. Defendant's motion itself contains lengthy explanations of the opinions that it wishes to elicit, and why those opinions will be helpful and relevant for a jury to consider. However, a judge cannot perform the judicial gatekeeping function by considering the comments of counsel. Only the statements and opinions of the expert himself are germane to the inquiry. Mr. Deniston has not said anything in his report that allows the court to perform its role as gatekeeper.
It is therefore ORDERED as follows:
1. Plaintiff's "Motion for 104(a) hearing and to Strike the Testimony of Defendant's Expert Witness Thomas Deniston" [filed January 3, 2002] is GRANTED IN PART.
2. Plaintiff's request for a Rule 104(a) hearing is deemed moot.
3. To the extent that plaintiff asks the court to strike Mr. Deniston as an expert, plaintiff's request is granted.
4. To the extent that plaintiff asks the court to strike Mr. Deniston as a factual witness, plaintiff's request is denied.