Hammler v. Hernandez et al

Filing 56

ORDER Denying Without Prejudice "Objection to Experts" [Doc. No. 50 ]. Signed by Judge Cathy Ann Bencivengo on 3/5/2020.(All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

Case No.: 18cv259-CAB-MDD
Plaintiff,

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v.

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ORDER DENYING WITHOUT
PREJUDICE “OBJECTION TO
EXPERTS” [Doc. No. 50]

J. HERNANDEZ, et al.,

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Defendant.

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Plaintiff Allen Hammler (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed his complaint on February 2, 2018, pursuant to 42 U.S.C. §1983.

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This case is currently proceeding on Plaintiff’s claim that Defendants retaliated against

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him in violation of the First Amendment. On February 3, 2020, Plaintiff filed an

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“Objection to Experts,” which this Court has deemed a Daubert or in limine motion.

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[Doc. No. 51.] On February 18, 2020, Defendants filed an opposition to Plaintiff’s

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Objection. [Doc. No. 54.] Plaintiff did not file a reply.

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DISCUSSION

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In the Objection, Plaintiff objects to the two witnesses listed in Defendants’

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Disclosure of Expert Witnesses, J. Martinez and E. Frijas. [See Doc. No. 54 at 7-10.] J.

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Martinez is a correctional lieutenant at Richard J. Donovan Correctional Facility (RJD).

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[Doc. No. 54 at 8, ¶1.] E. Frijas is a correctional counselor at RJD. [Doc. No. 54 at 8,
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18cv259-CAB-MDD

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¶2.] Both individuals are listed on the Disclosure as Non-Retained Expert Witnesses.

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[Doc. No. 54 at 8.] Unretained experts are persons who may be asked for expert opinion

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testimony at trial but who are not engaged or employed by a party to testify. Downey v.

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Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011). Unretained

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experts are those persons with percipient knowledge who happen to be an expert. It is

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common to list witnesses such as police officers or government investigators as

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unretained experts on a disclosure. See Phillips & Stevenson, RUTTER GROUP PRAC.

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GUIDE: FEDERAL CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) §11:386.

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Under Federal Rule of Evidence 702, expert opinion evidence must be both

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reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-

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91, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Primiano v. Cook, 598 F.3d 558, 567 (9th

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Cir. 2010). The district court functions as a gatekeeper, determining the relevance and

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reliability of expert testimony and deciding whether it will be admitted. Ellis v. Costco

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Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (citations omitted). An expert is

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generally not permitted to opine on an ultimate issue of fact except in limited

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circumstances, since such opinions may “invade the province of” the jury. See

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Nationwide Transport Finance v. Cass Information Systems, Inc., 523 F.3d 1051, 1060

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(9th Cir. 2008) (“evidence that merely tells the jury what result to reach is not sufficiently

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helpful to the trier of fact to be admissible”).

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In the Objection, Plaintiff raises legitimate concerns about whether these non-

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retained experts should be allowed to give opinions that may be in the province of the

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jury or may lack foundation. [Doc. No. 50 at 1-2.] However, as Defendants point out, at

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this point in the litigation, it is premature for the Court to rule on such issues, as

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discovery is ongoing, Defendants have not proffered any specific opinion testimony, and

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no dispositive motions have been filed. It is difficult for the Court to rule on the

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admissibility of such testimony until more specificity is provided.

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18cv259-CAB-MDD

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CONCLUSION

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For the reasons set forth above, Plaintiff’s Objection to Experts is DENIED

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WITHOUT PREJUDICE to Plaintiff refiling the motion in conjunction with any

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dispositive motions or prior to trial.

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IT IS SO ORDERED.

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Dated: March 5, 2020

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18cv259-CAB-MDD