Agahi et al v. Kelly et al

Filing 145

ORDER that Defendants' Motion to Exclude Steven Garfinkel's Expert Report and Testimony (Doc. 109 ) is GRANTED IN PART and DENIED IN PART as explained herein. See document for complete details. Signed by Judge Douglas L Rayes on 9/19/2022. (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bob Agahi, et al.,
Plaintiffs,

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v.

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Kevin Richard Kelly, et al.,

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No. CV-21-01369-PHX-DLR
ORDER

Defendants.

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Before the Court is Defendants’ Motion to Exclude Steven Garfinkel’s Expert

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Report and Testimony. (Doc. 109.) The motion is fully briefed (Docs. 129, 135) and, for

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the reasons set forth herein, is granted in part and denied in part.

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Plaintiffs allege that Defendants made false and defamatory statements on five

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websites, namely claiming Plaintiffs have ties to and/or affiliations with organized crime.

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Plaintiffs bring claims of defamation per se and false light invasion of privacy. Defendants

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have moved, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude the opinions of Plaintiffs’ expert,

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Steven Garfinkel, on two issues: (1) “the duty and care the FBI uses when engaging with

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the media to avoid besmirching an individual’s character on the basis of highly attenuated

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and meaningless information;” and (2) “why Bob Agahi is not associated with organized

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crime and would not be someone that any reasonable person in law enforcement would

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consider having ‘links’ to organized crime based upon the information provided in the

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websites published by Kevin R. Kelly.” (Doc. 109 at 3-4.)

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Daubert requires the Court to act as a “gatekeeper,” excluding expert opinions if

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they do not meet the standards of reliability required under Rule 702.

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accomplishes this by making a preliminary determination that the proffered evidence is

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both relevant and reliable. Daubert, 509 U. S. at 589-95. “[A] trial court may consider

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one or more of the more specific factors that Daubert mentioned when doing so will help

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determine that testimony’s reliability. But, as the Court stated in Daubert, the test of

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reliability is flexible, and Daubert's list of specific factors neither necessarily nor

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exclusively applies to all experts or in every case. Rather, the law grants a district court

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the same broad latitude when it decides how to determine reliability as it enjoys in respect

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to its ultimate reliability determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 137,

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141-42 (1999) (quotation omitted).

The Court

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Experts may establish the validity of their opinions by explaining how they reached

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them and pointing to some objective source to show that they have followed the scientific

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method, as it is practiced by a recognized minority in their field. Daubert, 509 U.S. at 593-

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94. “[T]he evidentiary rationale that underlay the Court’s basic Daubert gatekeeping

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determination [is not] limited to scientific knowledge. Daubert pointed out that Federal

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Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other

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witnesses on the assumption that the expert’s opinion will have a reliable basis in the

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knowledge and experience of his discipline. The Rules grant that latitude to all experts,

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not just to scientific ones.” Kumho, 526 U.S. at 148 (1999) (quotations and citation

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omitted). Where the expert’s opinions are non-scientific but are based on the knowledge

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and experience of the expert, the Daubert factors of peer review, publication, potential

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error rates, etc. are not applicable. Hangarter v. Provident Life & Accident Ins. Co., 373

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F.3d 998, 1017 (9th Cir. 2004).

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The first expert opinion which Defendants seek to exclude is the opinion pertaining

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to the policies and procedures adopted by the FBI to avoid “besmirching” an individual’s

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character when engaging with the media. Plaintiffs argue, among other things, that the

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relevance is established by Defendants’ published websites, which reference federal

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investigators, the FBI, court filings, and “Fed Scrutiny.” (Doc. 116 at 75.) Defendants

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point out that the FBI is mentioned only once on each of the websites, which state: “two

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other sources on Wall Street say that Supinsky may have been questioned by investigators

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who are building a case against Phillip Abramo, described by the FBI in court papers as

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capo in the DeCavalcante crime family.” (Doc. 135 at 5.)

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Garfinkel’s tesitmony about the FBI’s rules and practices to avoid disclosure of

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information of investigations is relevant to the likelihood of the FBI releasing information

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of a criminal investigation, of Supinsky having been questioned by the FBI, and whether

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the FBI was building a case against Philip Abramo. It is relevant to a determination of

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whether the FBI was the source of the information contained in the article, which is tied to

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the issues of the substantial truth of the information contained in the websites and whether

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Defendants acted reasonably in attempting to discover the truth or falsity of the alleged

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defamatory statements. Garfinkel has experience in the FBI and relies on an FBI manual.

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Either would provide a reliable basis for his testimony about the FBI’s procedures to

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protect the disclosure of investigations.

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The second objection is to Garfinkel’s opinion that the articles linked to the

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webpages do not contain evidence of Agahi’s association with organized crime. His

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opinions about what information or lack of information in the articles is evidence of

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association with organized crime is relevant and may assist the jury. Garfinkel’s definition

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of associate does not warrant exclusion of his opinion, which can be explored in cross

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examination.

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associate and what the average lay person might think are not supported by a reasonable

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basis and are not helpful to the jury. Those determinations do not require the assistance of

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an expert. Garfinkel may not testify that Agahi is or is not linked to organized crime or

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about the understanding or inferences that a lay person might take away from reading the

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website.

However, Garfinkel’s opinions that Ahahi is not an organized crime

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IT IS ORDERED that Defendants’ Motion to Exclude Steven Garfinkel’s Expert

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Report and Testimony (Doc. 109) is GRANTED IN PART and DENIED IN PART as

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explained herein.

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Dated this 19th day of September, 2022.

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Douglas L. Rayes
United States District Judge

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