United States District Court, N.D. California
ORDER ON DEFENDANT’S MOTION IN LIMINE TO
EXCLUDE TESTIMONY OF GOVERNMENT EXPERT WITNESS STEVEN
THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE
Pacific Gas and Electric Company (“PG&E”) has
moved in limine to exclude Government expert witness
Steven Nanney. Dkt. No. 339 (“Mot.”). Both
parties timely opposed and replied in support of this motion.
Dkt. Nos. 367 (“Opp’n”), 374
(“Reply”). The Court held a hearing on June 13,
2016 to determine whether Mr. Nanney’s expert testimony
meets the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). After
carefully considering the parties’ written and oral
arguments, the Court now DENIES PG&E’s motion to
exclude Mr. Nanney’s testimony, as set forth below.
the role of the trial judge to “ensure that any and all
scientific testimony or evidence admitted is not only
relevant, but reliable.” Daubert, 509 U.S. at
589. Pursuant to Federal Rule of Evidence
(“Rule”) 702, a witness “who is qualified
as an expert by knowledge, skill, experience, training, or
education” may offer expert testimony only 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.
Nanney is a senior engineer at the Pipeline and Hazardous
Materials Safety Administration (“PHMSA”).
Opp’n at 6. The Government offers him as an expert
about the “Pipeline Safety Act regulatory
requirements.” Id. Though PG&E argues that
such testimony is improper because “matters of law are
inappropriate subjects for expert testimony, ” Reply at
7 (quoting Hooper v. Lockheed Martin Corp., 688 F.3d
1037, 1052 (9th Cir. 2012)), the June 6, 2016
Daubert hearing focused exclusively on Mr.
Nanney’s qualifications to provide such testimony.
Expert testimony about the Pipeline Safety Act is warranted
in this complex criminal prosecution.
Mr. Nanney is not being offered to testify about any
professional study or particular application of scientific
principles, the Court is not tasked with conducting a typical
Daubert assessment of his methods or technique.
Rather, Mr. Nanny is being offered to testify about the
complex regulatory framework that underlies this criminal
prosecution. The Ninth Circuit has held that, though
uncommon, such expert testimony is sometimes permissible:
“It is true that matters of law are generally
inappropriate subjects for expert testimony, but there may be
instances in rare, highly complex and technical matters where
a trial judge, utilizing limited and controlled mechanisms,
and as a matter of trial management, permits some testimony
seemingly at variance with the general rule.”
Flores v. Arizona, 516 F.3d 1140, 1166 (9th Cir.
2008) (internal quotation marks and citation omitted),
reversed on other grounds 557 U.S. 433 (2009).
prosecution is quite clearly one where, as a matter of trial
management, expert testimony on the Pipeline Safety Act is
necessary. PG&E has argued that this will be “one
of the more complex criminal trials ever tried in this
district.” Dkt. No. 126 at 2. Moreover, one of
PG&E’s defenses to the regulatory counts in this
criminal prosecution is that any alleged regulatory
violations cannot have been “knowing and willful,
” as required by 49 U.S.C. § 60123, because the
regulations are “vague or contradictory or confusing or
[do] not make sense.” Dkt. No. 68 at 6. The jury, like
PG&E, will almost certainly find the Pipeline Safety
Act’s regulatory framework to be complex and confusing.
But the jury, unlike PG&E, lacks the benefit of daily
interaction with this framework to guide its understanding.
Accordingly, expert testimony to help the jury digest this
complex regulatory framework is necessary and warranted.
Mr. Nanney is qualified to testify as an expert on the
Pipeline Safety Act regulations.
for good reason, then, that the Daubert hearing
focused on Mr. Nanney’s qualifications to serve as an
expert in this capacity. Dkt. No. 651 (“6/13/16
Tr.”) at 26-27. PG&E’s questions to Mr.
Nanney at the hearing suggest that he must have authored the
Pipeline Safety Act regulations to be an expert in those
regulations. See Id. at 30-31 (“When you began
working for PHMSA in 2004, the regulations . . . that are at
issue in this case . . . had already become effective. Is
that right?”); id. at 31 (“[Y]ou
weren’t involved in any way with the development of the
regulations for PHMSA related to integrity management in
2004. True?”); id. (“Your resume says .
. . that you were involved in the regulatory development of
pipeline integrity management rules. Which rules are those,
sir?”). While the author of the charged regulations
would certainly be one of the most qualified individuals to
discuss them, experts are not required to be the best or only
individuals qualified in their fields. Rather, Rule 702
requires that individuals be qualified by “knowledge,
skill, experience, training, or education” to provide
expert testimony. Fed.R.Evid. 702. And as demonstrated at the
Daubert hearing on his qualifications, Mr. Nanney
possesses all of the above.
senior engineer at PHMSA - the federal regulatory agency
within the Department of Transportation that issued the
Pipeline Safety Act regulations and is charged with their
administration, 49 C.F.R. § 190.303 - Mr. Nanney
undoubtedly possesses knowledge of the regulations. Moreover,
with over 40 years of experience in the pipeline industry,
6/13/16 Tr. at 28, including decades working within the
industry on the “operator” side and over a decade
working at PHMSA on the “regulator” or
“implementation” side, Mr. Nanney’s
experience makes him uniquely well-equipped to communicate on
the Pipeline Safety Act. This experience is buttressed by
both highly relevant training - including internal PHMSA
training on the regulations, id. at 36, 46-58 - and
education - including a Bachelor’s of Science in Civil
Engineering and a Master’s of Science in Petroleum
Engineering, id. at 58. Counsel for the Government
confirmed with Mr. Nanney at the Daubert hearing
that his training and experience include sufficient exposure
to and implementation of the specific Pipeline Safety Act
regulations charged in this case. Id. at 46-58.
Finally, there is little doubt that Mr. Nanney’s
extensive, knowledge, experience, training, and education
will “help the trier of fact to understand the evidence
or to determine a fact in issue, ” Fed.R.Evid. 702(a),
as twelve of the thirteen counts to be tried in this case
turn on the jury’s ability to understand the Pipeline
Safety Act regulations.
PG&E’s motion to exclude Mr. Nanney’s
testimony is hereby DENIED.
Mr. Nanney may not offer opinions about whether PG&E
violated the ...