Independence Institute, The et al v. Buescher

Filing 304

ORDER granting in part and denying in part 218 Secretary's Amended Motion to Exclude Testimony of Michael Arno Pursuant to F.R.E. 702 as indicated in this Order. By Judge Philip A. Brimmer on 3/21/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00609-PAB-MEH
THE INDEPENDENCE INSTITUTE, et al.
Plaintiffs,
v.
SCOTT GESSLER, in his official capacity as Colorado Secretary of State,
Defendant.
_____________________________________________________________________
ORDER

This matter is before the Court on the Motion to Exclude Testimony of Michael
Arno [Docket No. 218] filed by defendant Scott Gessler in his official capacity as the
Secretary of State for the State of Colorado. Pursuant to Rule 702 of the Federal Rules
of Evidence, defendant seeks to preclude Mr. Arno from offering opinions on various
topics. The motion is fully briefed and ripe for resolution.
I. FEDERAL RULE OF EVIDENCE 702
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (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.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to

give opinions in a particular subject area. Rather, the Court must “perform[] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
After determining whether the expert is qualified, the specific proffered opinions must
be assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be
“based on sufficient facts or data,” be the “product of reliable principles and methods,”
and reflect a reliable application of “the principles and methods to the facts of the
case”).
Rule 702 imposes on the district court a “gatekeeper function to ‘ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.’”
United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To execute that
function, the Court must “assess the reasoning and methodology underlying the
expert’s opinion, and determine whether it is both scientifically valid and applicable to a
particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592-93).
Although it is not always a straightforward exercise to disaggregate an expert’s
method and conclusion, when the conclusion simply does not follow from the data, a
district court is free to determine that an impermissible analytical gap exists between
premises and conclusion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). When
examining an expert’s method, however, the inquiry should not be aimed at the
“exhaustive search for cosmic understanding but for the particularized resolution of
legal disputes.” Daubert, 509 U.S. at 597. It is the specific relationship between an

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expert’s method, the proffered conclusions, and the particular factual circumstances of
the dispute that renders testimony both reliable and relevant.
In addition to the witness having appropriate qualifications and methods, the
proponent of the witness’ opinions must demonstrate that the process by which the
witness derived his or her opinions is reliable. United States v. Crabbe, 556 F. Supp.
2d 1217, 1220 (D. Colo. 2008). When assessing reliability, “the court may consider
several nondispositive factors: (1) whether the proffered theory can and has been
tested; (2) whether the theory has been subject to peer review; (3) the known or
potential rate of error; and (4) the general acceptance of a methodology in the relevant
scientific community.” 103 Investors I, 470 F.3d at 990 (citing Daubert, 509 U.S. at
593-94). These considerations are not exhaustive. Rather, “the trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kumho Tire Co., 526 U.S. at 152.
While the proponents of the challenged testimony have the burden of
establishing admissibility, their proffer is tested against the standard of reliability, not
correctness; they need only prove that “the witness has sufficient expertise to choose
and apply a methodology, that the methodology applied was reliable, that sufficient
facts and data as required by the methodology were used and that the methodology
was otherwise reliably applied.” United States v. Crabbe, 556 F. Supp. 2d 1217, 1221
(D. Colo. 2008).
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In sum, expert testimony must be excluded if the expert is unqualified to render
an opinion of the type proffered, if the opinion is unreliable, if the opinion will not assist
the trier of fact, or if the opinion is irrelevant to a material issue in the case.
II. ANALYSIS
Defendant does not challenge Mr. Arno’s qualifications to testify with regard to
pay-per-signature petition drives. Docket No. 218 at 2. Defendant does, however,
challenge Mr. Arno’s qualifications to provide opinions with regard to pay-per-hour
signature petition drives. Id. Additionally, defendant seeks to exclude Mr. Arno’s
proffered opinions regarding: (1) the management of petition drives that compensate
circulators on a pay-per-hour scheme; (2) the management of petition drives that
compensate circulators based on a hybrid pay scheme; (3) the field of handwriting
analysis or forgery detection; and (4) the rebuttal of expert opinion regarding labor
economics and statistics. Docket No. 218 at 2-3.
Before addressing defendant’s arguments, the Court notes that under a Rule
702 analysis, a showing that an expert is qualified in a particular field does not
automatically lead to the admission of his testimony. Crabbe, 556 F. Supp. 2d at 1221.
On the contrary, Rule 702 focuses on the admissibility of expert opinions and whether
those opinions are based upon reliable methodology. Id. While a witness may satisfy
the minimum requirements to qualify as an expert, his or her level of expertise may
nevertheless affect the reliability of the expert’s opinion. In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 741 (3d Cir. 1994). Thus, even if an expert is qualified to express

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an opinion on a given field or subject matter, the Court still has an independent duty to
analyze whether the opinion proffered is reliable.
A. Waiver
Plaintiffs argue that, because defendant stipulated to Mr. Arno’s qualifications
during the preliminary injunction hearing, defendant is foreclosed from challenging Mr.
Arno’s qualifications. Docket No. 228 at 5. According to defendant, plaintiffs disclosed
Mr. Arno two days before the start of the preliminary injunction hearing. The fact that
defendant chose not to challenge Mr. Arno’s qualifications on short notice at a
preliminary court hearing does not estop defendant from challenging Mr. Arno’s
qualifications after discovery for purposes of a trial.
B. Mr. Arno’s Opinions
1. Pay-per-hour Drives Double the Costs of Petition
Qualification and the Management of Petition Drives under
Either a Pay-per-hour Scheme or a Hybrid Payment Scheme
Defendant seeks to exclude Mr. Arno’s testimony relating to the economic impact
that Measure 26--an Oregon law regulating petition drives--had on proponents of ballot
initiatives. Docket No. 218 at 3-4. Specifically, defendant seeks to exclude Mr. Arno’s
opinion that “requiring petition management firms to pay circulators per-hour instead of
per-signature more than doubles the cost to proponents as a general rule.” Docket No.
237 at 7.1 Additionally, defendant seeks to exclude Mr. Arno’s broader testimony with

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In his rebuttal opinion, Mr. Arno claims that he spent $538,000 to qualify a
petition in Oregon after the passage of Measure 26, when under a pay-per-signature
model it would have cost only $217,000. Docket No. 218-4 at 2. Based on this result,
Mr. Arno concluded that pay-per-hour petition drives more than double the costs of
qualifying a measure. Id.
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regard to: (1) the creation of accurate bids under a pay-per-hour scheme; (2) the
creation and implementation of a pay scale under a pay-per-hour schedule; and (3)
effective management of pay-per-hour drives. Docket No. 218 at 2. Defendant argues
that, because Mr. Arno has only conducted two pay-per-hour signature petition drives,
Mr. Arno is not qualified to offer the opinion and the opinion is unreliable. Id. at 10.
In response, plaintiffs argue that, because Mr. Arno has “extensive experience”
conducting petition drives under “both pay-by-hour and pay-by-signature” schemes and
is “qualified to offer opinions about how Colorado’s partial per-signature pay ban will
impact” costs in Colorado. Docket No. 228 at 8.
While it is true Mr. Arno has only conducted two petition drives with a
pay-per-hour compensation scheme and there is no evidence in the record that Mr.
Arno was involved in petition gathering activities in Oregon prior to the passage of
Measure 26, the Court finds that Mr. Arno has sufficient experience to express opinions
about the cost impact of an hourly compensation scheme. Mr. Arno’s extensive
experience with pay-per-signature compensation schemes provides context rather than
bias in assessing his experience in Oregon. Docket No. 218-4 at 2. The fact that Mr.
Arno’s bids in Oregon were based on a certain amount of guesswork does not call into
question his methodology since Oregon was one of the first states to adopt an hourly
compensation model and estimates regarding the cost of signature gathering were
consequently speculative.
Defendant also argues that, because of his lack of experience, Mr. Arno may not
testify about the likely effects of H.B. 1326. Docket No. 218 at 2. Defendant claims

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that any opinion Mr. Arno formulated from two pay-per-hour signature petition drives is
based on insufficient data and lack of experience.
In response, plaintiffs argue that “although there are some variances in state
laws governing petition drives, one need not have recent experience in Colorado to
qualify as an expert in the petition circulation business.” Docket No. 228 at 10.
Plaintiffs assert that, because no other state has a hybrid system in place, plaintiffs
would have no experts because “no one has circulated petitions under the challenged
provisions.” Docket No. 228 at 9.
While it is true that Mr. Arno does not have experience with a hybrid
compensation scheme such as that embodied in H.B. 1326, plaintiffs correctly point out
that no one has such experience. That fact does not disqualify Mr. Arno, who otherwise
has extensive experience in petition gathering, from offering opinions based on his
experience with both pay-per-signature and hourly compensation schemes, including
opinions regarding the formation of bids and pay schemes.
2. Mr. Arno’s Testimony Regarding Forgery Detection
Defendant seeks to exclude Mr. Arno’s testimony regarding Measure 26’s impact
on the rate or incidence of forged signatures. Docket No. 237 at 9. Specifically,
defendant requests that the Court exclude Mr. Arno’s opinion that “the rate or incident
of forged signatures in the initiative process is low and [Mr. Arno] and his staff” can
reliably detect forged signatures based on visual inspection. Id. at 9.
In his deposition, Mr. Arno acknowledged that he does not have any handwriting
analysis training, Docket No. 218-6 at 30 (Arno Dep. 282:19-21), and his company does
not hire individuals with experience in handwriting analysis. Id. at 31 (Arno Dep. 283:27

3). Mr. Arno also admitted that he has not tested his company’s forgery results for
accuracy since 2000. Id. (Arno Dep. 283:21-25); Id. at 34 (Arno Dep. 291:20-25) (“I
look at similarities and patterns. That’s what I look at. That requires a glance.”). Mr.
Arno’s opinion that the rate or incidence of fraud is low in petition drives is based
primarily on his staff’s visual inspections of collected signatures, which are not
cross-checked with official voter registration records. Id. at 32 (Arno Dep. 329:10-14).
Mr. Arno’s opinions regarding the rate or incidence of forged signatures and his
firm’s ability to detect forged signatures through visual inspection are unreliable
because he and his staff have no formal training in the field of handwriting analysis,
they are not certified by any professional organization, and there is no evidence that
their results have recently been subjected to some process to determine accuracy. Cf.
Am. Gen. Life & Accident Ins. Co. v. Ward, 530 F. Supp. 2d 1306, 1314 (N.D. Ga.
2008) (disqualifying a handwriting expert because his observations were not empirically
tested and did not have an identified potential rate of error). Moreover, Mr. Arno’s
opinion is not based on sufficient data or upon reliable methodology. His
representation that he and his staff are able to detect fraud is a conclusory statement
that his opinions are reliable. However, nothing in either Daubert or the Federal Rules
of Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert. Joiner, 522 U.S. at 146. Thus, the
Court will exclude such opinions.

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3. Labor Economics and Statistics
Defendant seeks to exclude Mr. Arno’s testimony with regard to labor
economics, compensation and incentive schemes, statistics, the application of scientific
methodology to the social sciences, or econometrics. Docket 218 at 3. However,
defendant fails to provide a specific opinion Mr. Arno provided on any of the
aforementioned topics. Given that Rule 702 focuses on opinions, defendant’s failure to
identify the opinions he challenges does not provide the Court with any guidance as to
the possible nature of the witness’ testimony. See Practice Standards (Civil Cases),
Judge Philip A. Brimmer § III.G. (“The motion shall identify with specificity each opinion
the moving party seeks to exclude.”) (emphasis in original). Therefore, the Court
denies defendant’s motion to exclude Mr. Arno from testifying about labor economics
and statistics for failure to object to specific opinions.
III. CONCLUSION
Accordingly, it is
ORDERED that the Secretary’s Amended Motion to Exclude Testimony of
Michael Arno Pursuant to F.R.E. 702 is GRANTED in part and DENIED in part as
indicated in this Order.

DATED March 21, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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