The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING MOTION TO EXCLUDE EXPERT TESTIMONY; and GRANTING MOTION TO EXCLUDE 38 WITNESSES [doc. nos. #111, 126]
Currently pending are plaintiffs' motions to exclude defendants' expert witnesses Peter Schiff and Penny Parker and to exclude 38 of defendants' witnesses. The motions have been fully briefed and were heard on April 26, 2010.*fn1
A. Motion to Exclude Defendants' Expert Witnesses
Defendants have designated Peter Schiff and Penny Parker as expert witnesses in this action. Plaintiffs seek to have them excluded because they fail to meet the standard under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc.
1. Legal Standard for Determining the Admissibility of Expert Testimony Rule 702 of the Federal Rules of Evidence provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
As the Supreme Court explained, Rule 702 requires trial courts to act as a gatekeeper "to ensure that any and all scientific testimony... is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (1993). The Daubert Court set forth a two-prong test trial courts must apply in deciding the admissibility of expert testimony: (1) whether the proffered expert testimony is based on "principles and methodology" that are "scientific" and, therefore, reliable, and (2) whether the expert's testimony is relevant by being "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id. at 591, 595.
Relevant expert testimony is admissible only if an expert knows of facts which enable him to express a reasonably accurate conclusion. Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir. 1988). Opinions derived from erroneous data are appropriately excluded. Slaughter v. Southern Talc Co., 919 F.2d 304 (5th Cir. 1990). Both the determination of reliability itself and the factors taken into account are left to the discretion of the district court consistent with its gatekeeping function under Federal Rule of Evidence 702. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)
As the Ninth Circuit discussed in U.S. v. Hankey:
[The] admissibility of expert opinion testimony generally turns on the following preliminary question of law determinations by the trial judge under FRE 104(a). Whether the opinion is based on scientific, technical, or other specialized knowledge;
Whether the expert's opinion would assist the trier of fact in understanding the evidence or determining a fact in issue;
Whether the expert has appropriate qualifications -- i.e., some special knowledge, skill, experience, training or education on that subject matter. FRE 702; Jones v. Lincoln Elec. Co., 188 F.3d 709 (7th Cir.1999); see Wilson v. Woods, 163 F.3d 935 (5th Cir. 1999) (expert in fire reconstruction unqualified as expert in auto accident reconstruction).
Whether the testimony is relevant and reliable. Unisys Sav. Plan Litig., 173 F.3d 145, 155 (3rd Cir. 1999); Kumho Tire, 119 S.Ct. at 1174-75.
Whether the methodology or technique the expert uses "fits" the conclusions (the expert's credibility is for the jury). See General Elec. ...