The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM ORDER AND RELATED COUNTERCLAIMS
Pending before the Court in the above-entitled matter are motions in limine filed by the parties in this matter.*fn1 In an effort to give the parties direction on the evidentiary issues that have been raised in the motions, the Court will set forth its views on those matters. The Court's ruling is preliminary and may be subject to revision upon consideration of a particular evidentiary issue presented within the context of the trial. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument. Local Rule 7.1(d)(2)(ii).
Trial judges are afforded "wide discretion" in determining whether evidence is relevant. United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004) (citing United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983)). Because "[a]n in limine order precluding the admission of evidence or testimony is an evidentiary ruling," United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989) (citation omitted) "a district court has discretion in ruling on a motion in limine." United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991) (citing Komisaruk, supra).
A. Defendant's Motion in Limine
Defendant filed a motion to exclude Plaintiff's rebuttal expert Dr. David Bechtel, DVM. (Docket No. 128). This Court referred this matter to Chief Magistrate Judge Candy W. Dale because it related directly to her prior order regarding discovery and expert witnesses. (Docket Nos. 100, 108). On June 8, 2010, the Magistrate Judge issued her ruling denying the motion in limine, in part, as to the request to exclude Dr. Bechtel from testifying on the grounds that O Bar failed to make him available for a deposition. (Docket No. 156).
Defendant raised two additional arguments in its motion for excluding Dr. Bechtel's testimony that were not ruled upon by the Magistrate Judge. The first asserts procedural error in that O Bar failed to include all of the materials required by Rule 26(a)(2) in Dr. Bechtel's report. The second argument cites substantive error in the opinion arguing Dr. Bechtel's report and opinions contained therein fail to satisfy the requirements of Rules 702 and 703. This Court has considered these issues raised in the Defendant's motion in limine and finds as follows.
As to the first issue, the Court has reviewed the materials submitted by the parties. Rule 26(a)(2) governs the disclosure of expert testimony. Defendant argues Dr. Bechtel's expert report failed to contain all of the information required by Rule 26(a)(2)(B)(v) in that it did not include the materials upon which he relied in compiling his report and any information regarding cases in which he has testified in the last four years.
Dr. Bechtel's report was served upon the defense on August 11, 2009. On April 22, 2010, Plaintiff's counsel sent a letter to the defense providing requested documents. (Docket No. 128, Ex. C). Defendant maintains this late disclosure violates the requirements of Rule 26 and has unfairly prejudiced its ability to prepare for trial with respect to Dr. Bechtel's testimony. As such, the Defendant argues the Court should exclude Dr. Bechtel as an expert pursuant to Rule 37.
The disclosure and discovery of expert testimony is governed by Federal Civil Rule of Procedure 26 and Local Civil Rule 26.2(b). These rules may be excused or modified by the Court where good cause is shown. There is no question the parties in this matter have been embattled in a particularly distasteful discovery battle since the inception of this case with both sides being at fault for the various discovery difficulties. The question now before this Court is whether to exclude Plaintiff's rebuttal expert pursuant to Rule 37. Federal Rule of Civil Procedure 37(c)(1) states:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion, any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.
A district court is afforded "particularly wide latitude" in exercising its discretion to issue sanctions under Rule 37(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001) (citing Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001)). This particular subsection, implemented in the 1993 amendments to the Rules, is a recognized broadening of the sanctioning power. Id. (citing Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) ("[T]he new rule clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of this rule....")). The Advisory Committee Notes describe it as a "self-executing," "automatic" sanction to "provide[ ] a strong inducement for disclosure of material...." Fed.R.Civ.P. 37 advisory committee's note (1993). Courts have upheld the use of the sanction even when a litigant's entire cause of action or defense has been precluded. Id. (citing Ortiz- Lopez, 248 F.3d at 35 (although the exclusion of an expert would prevent plaintiff from making out a case and was "a harsh sanction to be sure," it was "nevertheless within the wide latitude of" Rule 37(c)(1)). Two express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless. Id.; Fed. R. Civ. P. 37(c)(1).
Dr. Bechtel is a rebuttal expert who presumably will not be called by the Plaintiff, if at all, until late in the trial. Given the disclosures were made in late April and the defense has now had nearly two months to digest them, the Court will deny the Defendant's motion to exclude Dr. Bechtel. If, during trial, the Defendant can point to particular prejudice they will suffer as a result of Plaintiff's late disclosures of Dr. Bechtel's supporting materials, the Court may reconsider this ruling at that time.
Regarding the Plaintiff's delinquent disclosure of prior testimony, Plaintiff notes that Dr. Bechtel has not testified as an expert witness in the last four years and, therefore, there was no error in their not disclosing the same. It appears from the materials provided that the Plaintiff was not diligent in determining the extent of Dr. Bechtel's testimony in the preceding four years nor in disclosing the lack of any such testimony until only recently. (Docket Nos. 133, pp. 3-4 and 149, pp. 2-3). In fact, Plaintiff was not even aware until May 25, 2010 that there were no instances of prior testimony. This record reeks of bad faith on the part of the Plaintiff. Regardless, the fact remains that there was no prior testimony to be revealed and, therefore, the Defendant has not been prejudiced by this omission by the Plaintiff.
As to the second issue raised by the Defendant challenging the reliability of Dr. Bechtel's opinions, the Court finds it is necessary to take up this issue if and when the testimony is offered at trial. Expert testimony is admissible pursuant to the Federal Rules of Evidence, primarily Rule 702. Domingo ex rel. Domingo v. T.K., M.D., 276 F.3d 1083 (9th Cir. 2002) (citation omitted). The standard for testing expert testimony is set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Daubert, the district court acts as a "gatekeeper," excluding "junk science" that does not meet the standards of reliability required under Rule 702. Id. (citing General Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). The trial court accomplishes this goal through a preliminary determination that the proffered evidence is both relevant and reliable. Daubert, 509 U.S. at 589-95.
While evidentiary hearings might help the district court to conduct an adequate Daubert analysis, courts are not required to hold such hearings prior to trial in order to discharge their Daubert gatekeeping function. See United States v. Alatorre, 222 F.3d 1098, 1100-02 (9th Cir. 2000) ("The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether and when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable....") (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)). What is required is that the Court allow counsel "to explore the relevance and reliability of the proposed testimony" prior to its admission. Id. In this case, the Court finds it can best consider the parties arguments regarding the Plaintiff's rebuttal expert in the context of the trial if and when his testimony is offered. Accordingly, the Court reserves its ruling on these matters until the testimony and evidence are offered at trial.
If the testimony of Dr. Bechtel is offered at the trial and the Court is asked to making this determination, the Court will employ the following standard. The admissibility of the expert's testimony is admissible so long as it is "based on scientific techniques and advanced a material aspect of the government's case." See Daubert, 509 U.S. at 589; United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). To the extent a party questions the validity of an expert's testimony or opinion, this is a question of weight and credibility that properly went to the jury. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1230-31 (9th Cir. ...