Murray et al v. HMSHOST Corporation, et al

Filing 73

REPORT AND RECOMMENDATIONS for Order re 22 MOTION in Limine Exclude Amy Oppenheimer's Expert Report and Trial Testimony filed by Host International, Inc. Any objections to the Report and Recommendation shall be filed no later than fourteen days after the date of this Report and Recommendation, per the District Judges Order dated 0115/2009 Doc. No. 64 .. Signed by Magistrate Judge Barbara Lynn Major on 2/13/09. (ag)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DARRYL MURRAY and DEBRA MURRAY, ) ) Plaintiffs, ) ) v. ) ) HOST INTERNATIONAL, INC., ) ) Defendant. ) ) Civil No. 07cv2056-H(BLM) REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANT'S RENEWED MOTION IN LIMINE TO EXCLUDE AMY OPPENHEIMER'S EXPERT REPORT AND TRIAL TESTIMONY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

The instant motion was referred to this Court by United States District Marilyn L. Huff pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(c). Having considered the briefing

submitted and for the reasons set forth below, the Court hereby RECOMMENDS that Defendant's renewed Motion in Limine to Exclude Amy Oppenheimer's Expert Report and Trial Testimony ("Mot. to Exclude") [Doc. No. 22] be GRANTED. BACKGROUND Plaintiffs served the Preliminary Expert Witness Report of Amy Oppenheimer ("the Report") on Defendant on May 30, 2008. Mot.

to Exclude, Ex. 1. In the Report, Ms. Oppenheimer explains that she was retained to "render an opinion of the defendants' investigation -1-

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and response to a complaint of workplace harassment and retaliation [made against Plaintiff Darryl Murray], and to testify as to what is considered typical and acceptable human resource practice in regard to investigation of complaints of harassment and retaliation in the workplace." Id. at 1. Ms. Oppenheimer states that she reviewed

only Mr. Murray's deposition and personnel file in forming her opinion because, as of the date of the Report, there had not been "significant discovery." Id. at 2. Plaintiffs had not deposed the

investigators or decisionmakers and Ms. Oppenheimer asserted that she could not provide a complete opinion without reviewing testimony from these individuals. Id. Accordingly, she described her report

as "preliminary" and expressed an intention to amend it after discovery was complete. Id.

The discovery period closed in this case on July 18, 2008. Doc. No. 11 (hereinafter "Scheduling Order"). On August 22, 2008,

Defendant filed the instant motion, arguing that the Report and accompanying testimony should be excluded at trial as incomplete under Federal Rule of Civil Procedure 26(a)(2)(B) and irrelevant and unreliable under Federal Rules of Evidence 401 and 702. Exclude at 2. Mot. to

Plaintiffs opposed the motion on September 9, 2008

[Doc. No. 26], Defendant filed a reply on September 15, 2008 [Doc. No. 32], and the District Judge took the matter under submission [Doc. No. 35]. On October 1, 2008, the District Judge denied Defendant's motion without prejudice, finding that the Report did not fail to satisfy Rule 26(a)(2)(B) and was relevant under Federal Rule of Evidence 401. Doc. No. 45 at 3-4. However, because Ms. Oppenheimer indicated her intent to supplement her report, and because the -2-

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District Judge presumed she did so by the September 29, 2008 deadline established by the Scheduling Order, the District Judge declined to evaluate the Report under Federal Rule of Evidence 702. Id. During a status conference with the District Judge on January 15, 2009, Defendant renewed its objection to the Report and Ms. Oppenheimer's anticipated testimony in light of the fact that Plaintiffs did not serve a supplemental report. See Doc. No. 64

(scheduling order following January 15, 2009 status conference). The District Judge referred the matter to this Court and declined to allow supplemental briefing on the motion. DISCUSSION Because the District Judge already has determined that Ms. Oppenheimer's testimony would be relevant under Federal Rule of Evidence 401 (Doc. No. 45 at 4), this Court will examine only Plaintiffs' compliance with Rule 26(a)(2)(B) and Federal Rule of Evidence 702. A. Exclusion for Failing to Satisfy Federal Rule of Civil Procedure 26(a)(2)(B) Defendant seeks exclusion of the Report and Ms. Oppenheimer's testimony under Rule 37(c), arguing that Plaintiffs failed to comply with Rule 26(a)(2)(B). 1. Mot. to Exclude at 2. Id.

Completeness Under Federal Rule of Civil Procedure 26(a)(2)(B)

Rule 26(a)(2) requires each party to disclose to the opposing party the identity of any expert witness it may use at trial along with a written report containing, among other things, "a complete statement of all opinions the witness will express and the basis and -3-

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reasons for them," "the data or other information considered by the witness in forming them," and "any exhibits that will be used to summarize or support them." Fed. R. Civ. P. 26(a)(2)(A)-(B). The

Advisory Committee Notes following the rule indicate that the expert disclosure requirements were intended to facilitate preparation for trial without the need for formal discovery requests and were added to improve upon the existing rules, under which answers to

interrogatories about the substance of expert testimony frequently provided such "sketchy and vague" information that they "rarely dispensed with the need to depose the expert and often [were] even of little help in preparing for a deposition of the witness." R. Civ. P. 26(a) advisory committee notes (1993 Amendments). Because Plaintiffs never supplemented the Report, the Fed.

analysis of whether or not the Report satisfies Rule 26 has changed dramatically since the District Judge's October ruling. In their

briefing, Plaintiffs repeatedly stated that Ms. Oppenheimer's report was preliminary, that there was substantial relevant evidence she had not yet reviewed and considered, and that she was going to supplement her report after doing so. See, e.g., Pls.' Opp'n. at 2, 3, 5, 7, 9-10 ("Plaintiffs do expect to supplement their expert's report soon. The new report is expected to reflect review of new

evidence from discovery produced near the end of the Court's discovery period."). Even Ms. Oppenheimer admitted that her report

was "preliminary," that she could not render a "complete opinion" without having reviewed the testimony of the "investigator(s) and decisionmaker(s)," and that she intended to amend her report after the completion of discovery. neither Plaintiffs nor Ms. Mot. to Exclude, Ex. 1 at 2. Oppenheimer -4considered As such, report

her

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complete and final.

Despite this joint opinion and the fact that

the Court provided Plaintiffs with an opportunity to amend the expert report, Plaintiffs chose not to do. This Court, therefore,

must consider Ms. Oppenheimer's report as if it was a final report. The first required element of an expert report is that it contain "a complete statement of all opinions the witness will express and the basis and reasons for them." 26(a)(2). Fed. R. Civ. P.

As discussed above, both Plaintiffs and Ms. Oppenheimer Moreover, a review of Ms. Oppenheimer components complaint when of

concede that this element is not satisfied.

Ms. Oppenheimer's report reveals its inadequacies. explained evaluating that she looks at three different of a

an

investigation

harassment/retaliation. first component, the

Mot. to Exclude, Ex. 1 at 2. appropriateness of the

As to the Ms.

investigator,

Oppenheimer stated that she could not render an opinion at all because she had not reviewed the investigator(s)' deposition(s). Id., Ex. 1 at 3. As to the second element, the thoroughness of the

investigation, Ms. Oppenheimer states that it "appears" that the "investigator [improperly] spoke to witnesses before interviewing the respondent," that plaintiff was not informed about the

investigation and was not given an opportunity to respond, and that the investigator's notes may be deficient. Ms. Oppenheimer makes these statements Id. at 4-5. relying on However,

Plaintiff's

statements and without considering the testimony of any of the individuals involved in the investigation. Id. at 2, 4-5. As to

the third and final element, the consistency of the findings, Ms. Oppenheimer again states that there "appears" to be a problem. at 5-6. Id.

However, her conclusion is short and lacks specific facts. -5-

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Id. The second required element of an expert report is that it detail "the data or other information considered by the witness in forming [the opinions.]" Fed. R. Civ. P. 26(a)(2). The Report

properly states that Ms. Oppenheimer reviewed Plaintiff's deposition and personnel file. Mot. to Exclude, Ex. 1 at 2. The Report also

discusses additional types of discovery Ms. Oppenheimer wants to review because she believes such information would be critical to her conclusions. Id. at 2-6. However, the Report does not identify the additional information, if any, that Ms. Oppenheimer actually reviewed, considered and relied on, nor how the new inforamtion affected her opinions. she describes Mot. to Exclude, Ex. 1. that "appear" to Similarly, while exist in the

deficiencies

investigation, she does not delineate the actual facts establishing or supporting specific deficiencies. not sufficiently provide the Id. As such, the Report does bases for the resulting

factual

opinions. There is little question that Ms. Oppenheimer's opinions would be expanded, if not altered, by a review of the discovery subsequently obtained from the investigators. For instance, Ms.

Oppenheimer speculated based on the information available to her at the time that the investigation did not follow the "usual practice" because, instead of having one person interview all parties and witnesses, the task seems to have been divided among several people. Id. at 3. Defendant rebuts this assumption, attaching the

deposition transcript of Idalia Castro, which suggests that Ms. Castro conducted the initial investigation before calling upon others to help with a second round of interviews. -6Id. at 4 & Ex. 2.

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Similarly,

Plaintiffs

state

in

their

opposition,

"[g]iven

the

sometimes conflicting human resources testimony provided in seven Defendant depositions, it is reasonable to expect Ms. Oppenheimer to consider and comment on the human resources significance of certain witness testimony discrepancies." Pls.' Opp'n at 7.

As such, Plaintiffs and Ms. Oppenheimer tacitly admit, and the evidence clearly shows, that the Report does not include either a complete statement of all of the opinions Plaintiffs intend to solicit from Ms. Oppenheimer and the basis therefor or all of the data considered by Ms. Oppenheimer in reaching those unstated opinions. A report that does not contain details about expected

trial testimony is not sufficient to satisfy Rule 26(a)(2)(B)'s report requirement. 2007 WL 210516, *1-*2 City of Grass Valley v. Newmont Min. Corp., (E.D. Cal. Jan. 26, 2007) (striking expert

report as incomplete under Rule 26(a)(2)(B) and noting that allowing the party to proceed with this expert would encourage parties to evade the expert disclosure rules). Finally, the third requirement of an expert report is the inclusion or attachment of "any exhibits that will be used to summarize or support [the opinions.]" Fed. R. Civ. P. 26(a)(2). Defendant is correct that the Report fails to attach any such exhibits. While Plaintiffs may not intent to use any exhibits, they do not so indicate and, in their opposition, argue that they can provide the exhibits at a later date (Pls.' Opp'n at 5). to Plaintiffs' unsupported supposition, Rule Contrary

26(a)(2)(B)(iii)

requires the parties to serve such exhibits with their expert reports. /// -7Plaintiffs' failure to do so violates Rule 26.

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For the foregoing reasons, and based upon the fact that the Plaintiffs failed to supplement Ms. Oppenheimer's report, the Court finds that the Report does not satisfy Rule 26(a)(2)(B) because it does not contain (1) a complete statement of all of the opinions Ms. Oppenheimer is expected to express at trial and the bases and reasons for them, (2) a complete statement of all of the data and information she has considered (or will consider) in forming her unstated opinions, or (3) any exhibits (or any statement confirming that no exhibits will be used). 2. Fed. R. Civ. P. 26(a)(2)(B).

Exclusion Under Rule 37(c)

Defendant moves to exclude the Report and Ms. Oppenheimer's testimony Procedure. pursuant to Rule 37 of the Federal Rules of Civil

Rule 37(c) provides:

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Fed. R. Civ. P. 37(c)(1) (emphasis added). -8The Advisory Committee

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Notes

describe

Rule

37(c) which

as

providing a

a

"self-executing," inducement for

"automatic"

sanction,

"provides

strong

disclosure of material that the disclosing party would expect to use as evidence." Amendment). Fed. R. Civ. P. 37 advisory committee note (1993

As the District Judge correctly stated, the issue of

expert testimony admissibility is left to the trial judge and reversed only for abuse of discretion. Joiner, 522 U.S. 136, 141 (1997). See Gen. Elec. Co. v.

In fact, courts have even upheld

the use of the exclusion sanction "when a litigant's entire cause of action or defense has been precluded." Yeti by Molly, Ltd. v.

Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). As an initial matter, Plaintiffs object that Defendant did not meet and confer with Plaintiffs or move to compel a supplemental report before seeking to exclude the Report. 10. Pls.' Opp'n at 2-3,

Plaintiffs did not, however, provide law supporting their

argument that Defendant was required to move to compel first (and the meet and confer argument, even if it had merit, is a moot point since Plaintiffs had notice of the motion to exclude prior to the deadline for supplementing the Report and still failed to

supplement).

Moreover, because sanctions under Rule 37(c)(1) are

"self-executing" and "automatic," they are appropriate even where the offending party "never violated an explicit court order." by Molly, 259 F.3d at 1106. Yeti

Thus, Defendant was not required to

file a motion to compel an adequate expert disclosure before seeking to exclude Ms. Oppenheimer's expert testimony. Defendant argues that Plaintiffs have no substantial

justification for failing to supplement the incomplete Report and that allowing Ms. Oppenheimer to -9testify at trial would be

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prejudicial to Defendant.

Mot. to Exclude at 5.

As to the first

prong, Plaintiffs have not offered any justification for their failure to supplement the Report. this motion, Plaintiffs At the time the parties briefed repeatedly their intent to

emphasized

supplement the Report after completing discovery. Pls.' Opp'n at 2, 3, 5, 9; see also Mot. to Exclude, Ex. 1 at 2. Plaintiffs also

admit or imply in their Opposition that the Report needs to be supplemented in order to be comprehensive. 10. Pls.' Opp'n at 5, 7, 9-

Further, Plaintiffs cannot argue now that they were unaware of

the asserted deficiencies nor of the deadline for supplementing because the parties briefed the alleged deficiencies and the

District Judge addressed both issues in her October 1, 2008 Order. Doc. No. 45. The Court, therefore, finds no substantial

justification for Plaintiffs' failure to supplement the Report. With regard to the second prong under Rule 37, the burden of proving harmlessness falls on the party facing sanctions - in this case, Plaintiffs. Yeti by Molly, 259 F.3d at 1107. Plaintiffs have not argued that their failure to supplement the Report is harmless and their statements in their briefs and Ms. Oppenheimer's

statements in her Report belie any harmlessness argument Plaintiffs could present. For example, Plaintiffs repeatedly stated that they

intend(ed) to supplement the Report, Ms. Oppenheimer stated that she needed to review additional discovery, including the depositions of the investigators, before she could opine on various aspects of the investigation, and Plaintiffs stated that while they "expected [Ms. Oppenheimer's opinions] to remain essentially unchanged" by the new discovery, Ms. Oppenheimer would want to consider the "sometimes conflicting human resources testimony provided in seven Defendant -10-

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depositions" and the Host Human Resource Manual before "reasonably supplementing her report." Pls.' Opp'n at 2, 5, 7-10. Plaintiffs'

statements clearly establish that there is a significant amount of relevant information Ms. Oppenheimer had not reviewed when she issued her Report, that she needed to review the new information and it may change her opinions and definitely would be incorporated into her conclusions, and that Plaintiffs expected her to present all of the new evidence, opinions, and conclusions during her trial

testimony.

Id. at 2-10.

If Defendant is required to learn Ms.

Oppenheimer's opinions and conclusions, and the bases for them, for the first time on direct examination and cross-examine her blind, Defendant will be subjected to the very type of ambush that Rule 26(a)(2)(B) is designed to prevent. Defendant should not be

subjected to such prejudice, nor should Plaintiffs' counsel be rewarded for failing to comply with the clear requirements of the Federal Rules and the Court's Scheduling Order and for failing to take advantage of the additional opportunity to supplement afforded by the District Judge. Finally, to the extent Plaintiffs claim that any harm to Defendant was self-imposed because Defendant never attempted to depose Ms. Oppenheimer, Pls.' Opp'n at 7-9, Plaintiffs' argument is unavailing. As an initial matter, the Court agrees with Defendant

that the 1993 amendments to Rules 26 and 37 were intended to lessen the need for formal discovery, like depositions, decrease discovery costs, and provide harsher, automatic sanctions for failure to comply. See Fed. R. Civ. P. 26(a) & 37 advisory committee notes Plaintiffs' argument thus runs contrary to the Furthermore, Rule 26(b)(4)(A) provides that -11-

(1993 Amendments).

spirit of the rules.

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while a party may depose any person identified as an expert whose opinions may be presented at trial, "[i]f a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided." It would be contrary to reason and the Federal Rules' policy of reducing discovery time and expense, see generally Fed. R. Civ. P. 26 advisory committee notes (1993 Amendments), to expect Defendant to depose Ms.

Oppenheimer after being served with her initial bare-bones report and then again after a supplemental report. Moreover, as this Court recognized during its September 5, 2008 hearing on Plaintiffs' motion to compel, Plaintiffs waited until just days before the July 18, 2008 discovery cutoff date to conduct any deposition discovery (including the depositions of the investigators and decisionmakers) and, in fact, conducted several depositions after the close of discovery without first obtaining the Court's approval to extend the discovery cutoff. Transcript") at 12. See Doc. Nos. 27 & 52; Doc. No. 70 ("Hearing Under these circumstances, Defendant did not

have a reasonable opportunity to depose Ms. Oppenheimer within the discovery period regarding how her opinions may have been altered by this new information and did not contribute to the resulting harm by declining to do so. In sum, the Court finds that Plaintiffs have not demonstrated any justification for their failure to supplement and further concludes that to require Defendant to explore Ms. Oppenheimer's current views for the first time at trial would be highly

prejudicial to Defendant.

See Fed. R. Civ. P. 37(c)(1). Plaintiffs

The question, then, is the appropriate sanction.

ask that the Court impose a less harsh sanction than exclusion of -12-

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the Report and Ms. Oppenheimer's testimony.

Pls.' Opp'n at 10.

As

discussed above, Rule 37 authorizes the Court to exclude the evidence or impose any other appropriate sanction, including payment of Defendant's reasonable or expenses, informing the jury until of the

Plaintiffs'

failure,

staying

further

proceedings

Scheduling Order is obeyed.

Fed. R. Civ. P. 37(c)(1).1

In this

case, requiring Plaintiffs to pay Defendant's expenses or informing the jury that Plaintiffs failed to supplement the Report will do little to redress Defendant's inability to anticipate and prepare for Ms. Oppenheimer's trial testimony. Likewise, staying further

proceedings until Plaintiffs provide a supplemental report and Defendant has an opportunity to depose Ms. Oppenheimer is not a viable solution. Plaintiffs knowingly delayed conducting any

discovery in this case until just before (and shortly after) the deadline. provided See Hearing Transcript at 1-13, 47-51. the bare-bones Report, which even Plaintiffs then Ms. Oppenheimer

acknowledged was "preliminary," and repeatedly told the District Judge that they intended to supplement. The District Judge accepted their representations and afforded Plaintiffs yet another

opportunity to produce a comprehensive expert report (see Order Denying Without Prejudice Motion to Exclude at 4), but Plaintiffs chose not to utilize that opportunity. Allowing Plaintiffs another

delay at this late stage in the case would reward Plaintiffs' continued dilatory behavior while also resulting in undue expense to

1 To the extent Plaintiffs argue that exclusion is only appropriate in extreme circumstances, see Pls.' Opp'n at 3 (citing David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)), Plaintiffs are incorrect. Nowhere in David does the court establish this holding and this conclusion is contrary to Rule 37 and the Ninth Circuit authority explained above.

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Defendant and interference with the District Judge's calendar. Therefore, this Court finds that exclusion of the Report and Ms. Oppenheimer's testimony is the most appropriate sanction under the circumstances.2 For these reasons, this Court concludes that Plaintiffs' failure to supplement the Report was not substantially justified, Defendant will suffer harm as a result, and sanctions short of exclusion will not ameliorate the harm. The Court, therefore,

RECOMMENDS that the Report and Ms. Oppenheimer's testimony be excluded at trial pursuant to Rule 37(c). B. Reliability Under Federal Rule of Evidence 702 As the District Judge correctly stated, expert testimony also must meet the standards of Federal Rule of Evidence 702. Evidence

is admissible under Rule 702 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." Evid. 702. Fed. R.

"Rule 702 requires that expert testimony relate to

scientific, technical, or other specialized knowledge, which does not include unsupported speculation and subjective beliefs."

Guidroz-Brault v. Missouri Pac. R. Co., 254 F.3d 825, 829 (9th Cir.

On a final note, based on the current record, this Court does not believe Ms. Oppenheimer's testimony is amenable to a limiting instruction. Even with an appropriate instruction, it would be misleading to the jury and prejudicial to Defendant for Ms. Oppenheimer to testify as to her opinions on "the defendants' investigation and response to a complaint [against Mr. Murray] of workplace harassment and retaliation" (Mot. to Exclude, Ex. 1 at 1) based solely on her review of Plaintiffs' deposition and personnel file. Similarly, permitting Ms. Oppenheimer to testify as "to what is considered typical and acceptable human resource practice in regard to investigation of complaints of harassment and retaliation in the work place" without tying it to the facts of this case provides little, if any, assistance to the trier of fact and Plaintiffs have not presented contrary evidence or argument. See discussion in Section B.
2

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2001).

In applying Rule 702, the trial judge must act as a

gatekeeper to ensure that the expert's testimony "rests on a reliable foundation and is relevant to the task at hand." Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007) (under Rule 702, a court may exclude testimony if it is not reliable or relevant); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying that this gatekeeper function applies to all expert testimony, not just testimony based in science). Defendant argues that the primary shortcoming of the Report is that it is not "based upon sufficient facts or data." Exclude at 8. Mot. to

As discussed in Section A, supra, Ms. Oppenheimer

herself acknowledges that her opinion is based solely on her review of Mr. Murray's deposition and personnel file. Id., Ex. 1 at 2.

She further explains that she cannot render "a complete opinion" without also reviewing "the testimony of the investigator(s) and decision maker(s)." Id. Further, both Plaintiffs' and Defendant's

briefs make clear that at least seven other key witnesses have been deposed and other fact discovery has been exchanged (see Mot. to Exclude at 4-5 and Pls.' Opp'n at 7, 9-10), so it is clear that a substantial body of relevant discovery exists, which the Report does not take into account. Thus, the Court finds that the Report itself fails to satisfy the first prong of Rule 702 because the proffered opinions are not "based upon sufficient facts or data." Similarly,

the third prong requires that principles and methods be applied "reliably" to the facts of the case. The Report does not satisfy

the third prong by reliably applying the principles to the facts because there are not sufficient facts in the Report to do so. -15-

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While Plaintiffs may have provided the Manual and additional depositions and documents to Ms. Oppenheimer and Ms. Oppenheimer may have reviewed and considered them, no such evidence has been presented to this Court. In fact, as discussed above, Plaintiffs

knowingly and voluntarily chose not to supplement Ms. Oppenheimer's Report to provide such information. Plaintiffs' decision leaves

this Court with no basis for determining whether Ms. Oppenheimer's new opinions, whatever they may be, are sufficiently grounded in fact. Likewise, even presuming Ms. Oppenheimer employs reliable

principles and methods, without knowing what discovery she has reviewed, the Court has no way of discerning whether Ms. Oppenheimer will "appl[y] the principles and methods reliably to the facts of the case." Fed. R. Evid. 702(3). The Report offers no hint on this

front as it addressed so few facts and instead provides only Ms. Oppenheimer's anticipated opinions if the facts turned out to be exactly what Mr. Murray said they were. Such unsupported

speculation is insufficient to satisfy the rigors of Rule 702, Guidroz-Brault, 254 F.3d at 829, and does not convince this Court that the Report and Ms. Oppenheimer's anticipated testimony rest upon "a reliable foundation," Daubert, 509 U.S. at 597. For these reasons, this Court RECOMMENDS that the Report and Oppenheimer's testimony be excluded as inadmissible under

Federal Rule of Evidence 702. See Jackson v. U.S., 2007 WL 4532223, *5 (N.D. Cal. Dec. 19, 2007) (finding it appropriate to exclude expert testimony even though plaintiff was left with no expert witness where, despite the being given failed repeated to chances to cure whose

deficiencies,

plaintiff

procure

"expert

testimony would be sufficient to satisfy the Daubert standards"). -16-

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CONCLUSION AND RECOMMENDATION For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge issue an Order approving and adopting this Report and Recommendation and granting Defendant's renewed motion in limine to exclude Amy Oppenheimer's expert report and trial testimony. Any objections to the Report and Recommendation shall be filed no later than fourteen days after the date of this Report and Recommendation, per the District Judge's Order dated January 15, 2009 [Doc. No. 64]. DATED: February 13, 2009

BARBARA L. MAJOR United States Magistrate Judge

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