US district court approved a plaintiff’s motion to exclude portions of an expert’s testimony after claiming that the expert was speaking on matters outside of his area of expertise.
The case is Mountaineers Foundation v The Mountaineers (Case 2:19-cv-1819-RSL-TLF, Western District of Washington.
Under Rule 702, an expert witness who is “qualified…by knowledge, skill, experience, training, or education” is allowed to testify when:
“(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.”
The District Court for the Western District of Washington partly granted the plaintiff’s,
Mountaineers Foundation’s motion to exclude portions of a damages expert’s testimony
with regards to the results of a consumer confusion survey and likelihood of confusion.
These subject matters were considered as being outside of the witness’s areas of expertise, and therefore in violation of Federal Rule of Evidence 702.
The foundation had retained John Plumpe as an expert to conduct research, review discovery, and develop opinions on the subject of monetary relief if liability was found against The Mountaineers (the defendant).
The Mountaineers, reply served the foundation with an expert report prepared by
Mr Drew E Voth. The report stated that Mr Voth had been requested to assess damages suffered by the parties, as well as evaluate the Plumpe Report, and confirmed that he would not be offering an opinion on liability.
The foundation, focussed on and challenged the following statements from Mr Voth’s report, arguing that they are outside the scope of his expertise:
“[E]vidence presented to me shows that donations received by The Mountaineers were intended for The Mountaineers rather than [Plaintiff].”
“The Mountaineers sent tens of thousands of emails to its mailing lists where recipients
were sent a link to the Alchemer (formerly SurveyGizmo) survey tool to confirm the intended recipient of their donations…none of The Mountaineers’ grant and contribution revenue should be apportioned to [Plaintiff].”
“These donor responses also support a finding that there is no reasonable nexus between the claimed grant and contribution revenue reported by The Mountaineers and the alleged unlawful acts.”
“In the event that Defendant is found liable for Plaintiff’s claims, the evidence made
available to me shows none of Defendant’s profits are attributable to the alleged unlawful acts.”
“[Plaintiff’s] fundraising activities, which include its website, operation of the
Rhododendron Preserve, and email campaigns, would not be expected to result in donations to The Mountaineers in the form of grants, in kind donations, events, or sponsorships.”
The foundation wanted an order precluding Mr Voth from providing expert witnes testimony regarding donor consumer confusion, intent, and/or donor confusion.
Court grants motion to exclude expert witness testimony due to lack of relevant expertise. The foundation had retained John Plumpe as an expert to review discovery, conduct research and develop opinions regarding monetary relief if liability was found against The Mountaineers (the defendant).
In response, The Mountaineers served the foundation with an expert report prepared by Mr Drew E Voth. The report stated that Mr Voth had been asked to assess damages suffered by the parties,as well as evaluate the Plumpe Report, and confirmed that he would not be offering an opinion on liability.
In particular, the foundation challenged the following statements from Mr Voth’s report,
arguing that they are outside the scope of his expertise:
“[E]vidence presented to me shows that donations received by The Mountaineers were intended for The Mountaineers rather than [Plaintiff].”
“The Mountaineers sent tens of thousands of emails to its mailing lists where recipients
were sent a link to the Alchemer (formerly SurveyGizmo) survey tool to confirm the intended recipient of their donations…none of The Mountaineers’ grant and contribution revenue should be apportioned to [Plaintiff].”
“These donor responses also support a finding that there is no reasonable nexus between the claimed grant and contribution revenue reported by The Mountaineers and the alleged unlawful acts.”
“In the event that Defendant is found liable for Plaintiff’s claims, the evidence made available to me shows none of Defendant’s profits are attributable to the alleged unlawful acts.”
“[Plaintiff’s] fundraising activities, which include its website, operation of the Rhododendron Preserve, and email campaigns, would not be expected to result in donations to The Mountaineers in the form of grants, in kind donations, events, or sponsorships.”
The foundation sought an order precluding Mr Voth from providing testimony regarding donor intent, consumer confusion and/or donor confusion.
Under Federal Rule of Evidence 702, the district court has broad discretion to assess
the relevance and reliability of expert testimony. Pursuant to Federal Rule of Evidence 104(a),courts must decide any preliminary questions about whether a witness is qualified, a privilege exists or evidence is admissible.
With reference to empirical facts, the court claimed Mr Voth stated that his expertise is in damage valuation plus financial and damages analysis. During his deposition, Mr Voth testified that his is not an expert opinion report on likelihood of confusion and that he does not write expert witness reports on the subject. He added that he is not a survey expert and does not regularly undertake surveys.
https://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title28a-node246-article7-rule702&num=0&edition=1999
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