Martensen v. Koch

Filing 344

ORDER denying 220 Motion In Limine To Preclude Expert Testimony of Louis J. Freeh by Judge Robert E. Blackburn on 2/4/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-02411-REB-CBS
KIRBY MARTENSEN,
Plaintiff,
v.
WILLIAM KOCH, and
DOES 1-25,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION IN LIMINE
TO PRECLUDE EXPERT TESTIMONY OF LOUIS J. FREEH
Blackburn, J.
The matter before me is plaintiff’s Motion In Limine To Preclude Expert
Testimony of Louis J. Freeh [#220],1 filed August 29, 2014. I deny the motion.
I. JURISDICTION
I have jurisdiction over this case pursuant to 28 U.S.C. § 1332 (diversity of
citizenship).
II. STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of
expert witness testimony, 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,
1

“[#220]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

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. The Supreme Court has described the court’s role in weighing
expert opinions against these standards as that of a “gatekeeper.” See Kumho Tire
Company, Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 142 L.Ed.2d
248 (1999).
As interpreted by the Supreme Court, Rule 702 requires that an expert’s
testimony be both reliable, in that the witness is qualified to testify regarding the subject,
and relevant, in that it will assist the trier in determining a fact in issue. Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92, 113 S.Ct. 2786, 2795-96,
125 L.Ed.2d 469 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d
1206, 1210 (10th Cir. 2004). The Tenth Circuit employs a two-step analysis when
considering the admissibility of expert testimony under Rule 702. See 103 Investors I,
L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006). Plaintiff’s motion implicates
only the first, codified in Rule 702(a), which examines, inter alia, whether the expert’s
testimony “will help the trier of fact to understand the evidence or determine a fact in
issue.” FED. R. EVID. 702(a).2 This inquiry “goes primarily to relevance,” Daubert, 113
S.Ct. at 2795, but the court also may consider other factors, such as whether the
testimony goes to a matter within the common knowledge and experience of jurors, or
2

Plaintiff does not challenge the expert’s qualifications to testify, see FED. R. EVID. 702(a) nor
suggest that his opinion is based on an unreliable methodology or an insufficient quantum of data, FED.
R. EVID. 702(b), (c) & (d).

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whether it usurps the jury’s role in determining an ultimate issue of fact or the court’s
role to instruct the jury on the law, see United States v. Rodriguez-Felix, 450 F.3d
1117, 1123 (10th Cir.), cert. denied, 127 S.Ct. 420 (2006).
The trial court has broad discretion in determining whether expert testimony is
sufficiently relevant to be admissible. See Truck Insurance Exchange, 360 F.3d at
1210; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000). The
overarching purpose of the court’s inquiry is “to make certain that the expert . . .
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Goebel v. Denver and Rio Grand Western
Railroad Co., 346 F.3d 987, 992 (10th Cir. 2003) (quoting Kumho Tire, 119 S.Ct. at
1176). However, Rule 702 is properly construed as a rule of inclusion rather than one
of exclusion, and “the rejection of expert testimony is the exception rather than the rule.”
FED. R. EVID. 702, Advisory Committee Note. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.”
Daubert, 113 S.Ct. at 2798.
III. ANALYSIS
The facts of this case are well known to the parties and need to be repeated at
length here. This motion specifically addresses the propriety vel non of the opinions of
defendant’s expert, Mr. Louis J. Freeh. Mr. Freeh has been designated to opine that
the internal investigation (and defendant’s involvement therein) into anonymous
allegations implicating plaintiff and others in corporate fraud, which ultimately led to

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plaintiff’s termination, were consistent with best corporate practices. Mr. Freeh will
testify further as to the propriety of the way in which plaintiff’s termination was handled.
These opinions are offered to countermand plaintiff’s suggestion that the investigation
was flawed, improper, and/or a pretext for silencing plaintiff as a corporate
whistleblower, as well as to give context to the events surrounding plaintiff’s termination
Plaintiff first argues that Mr. Freeh’s opinions will not be helpful to the jury
because the issue to be decided in this case is simple and does not require illumination
or explication by an expert. I disagree.
The “touchstone” of admissibility of expert testimony is its
helpfulness to the trier of fact. When the normal experiences
and qualifications of laymen jurors are sufficient for them to
draw a proper conclusion from given facts and
circumstances, an expert witness is not necessary and is
improper.
Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir. 2002) (citations and internal
quotation marks omitted). While the events that occurred at defendant’s ranch
themselves may not be difficult to understand, Mr. Freeh’s testimony is offered to put
those events in context. The prevailing practices and standards that pertain to the
conduct of internal corporate investigations are not matters within the common
knowledge of most lay people. I therefore find and conclude that the testimony is not
excludable on this basis.
In his reply,3 plaintiff suggests further that Mr. Freeh’s testimony is not helpful
because it will not go to any issue properly before the jury. This argument is curious,

3

Of course, issues raised for the first time in a reply brief generally are waived in any event. See
Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004).

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given that plaintiff consistently has avowed the relevance of defendant’s motives for
orchestrating the events at his ranch which culminated in plaintiff’s termination.
Nevertheless, although I agree with plaintiff that defendant’s motive per se is not directly
relevant to the elements of his false imprisonment claim (see Order Granting
Defendant William I. Koch’s Motion In Limine To Preclude Evidence of Oxbow’s
Organizational Structure and Alleged Tax Violations at 2 [#341], filed January 28,
2015), defendant’s intent is. Evidence related to the investigation of the charges leveled
against plaintiff and the decision to terminate plaintiff’s employment in the manner which
occurred is relevant to that inquiry.
Moreover, the jury properly may be asked to consider evidence that is not related
directly to a specific element of plaintiff’s claim, if such evidence is otherwise relevant
and admissible. See 29 Charles Alan Wright & Victor James Gold, Federal Practice &
Procedure: Evidence § 6265 (1997) [hereinafter FPP: Evidence] (“[T]he ‘assist’
requirement is satisfied where expert testimony advances the trier of fact's
understanding to any degree.”). A fact in issue here is whether the events surrounding
plaintiff’s termination were appropriate. Mr. Freeh’s testimony may help the jury
understand defendant’s position that his actions were justified. The evidence therefore
is not excludable on this basis either.
Plaintiff next argues that Mr. Freeh purports to offer legal opinions and
conclusions that would usurp the province of the court to apprise the jury of the legal
principles that will govern their deliberations. While it is true that a witness may not
properly opine on ultimate issues of law, see Specht v. Jensen, 853 F.2d 805, 808-09

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(10th Cir. ), cert. denied, 109 S.Ct. 792 (1988), Mr. Freeh’s opinions are primarily
factual, not legal, and based on his expert report, do not appear to overstep the “narrow
line” drawn in Specht:
We do not exclude all testimony regarding legal issues. We
recognize that a witness may refer to the law in expressing
an opinion without that reference rendering the testimony
inadmissible. Indeed, a witness may properly be called upon
to aid the jury in understanding the facts in evidence even
though reference to those facts is couched in legal terms.
Id. at 809. If Mr. Freeh’s testimony at trial threatens to venture beyond the permissible
bounds of expert testimony on these issues, the court is confident that timely and
appropriate objections will be sufficient to prevent such opinions from reaching the jury.4
Finally, plaintiff complains that Mr. Freeh is not objective about the evidence and
merely vouches for defendant’s credibility. Of course, “expert testimony which does
nothing but vouch for the credibility of another witness encroaches upon the jury's vital
and exclusive function to make credibility determinations, and therefore does not assist
the trier of fact as required by Rule 702.” United States v. Charley, 189 F.3d 1251,
1267 (10th Cir. 1999), cert. denied, 120 S.Ct. 842 (2000) (emphasis added; citation and
internal quotation marks omitted). Plaintiff’s argument here, however, is that Mr. Freeh
has credited categorically the accounts of defendant and his witnesses, while
disregarding evidence favorable to plaintiff’s version of events. Assuming arguendo that
this characterization is true, such matters plainly go to the weight, not the admissibility,

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Although plaintiff further invokes Rule 403, he does not explain how Mr. Freeh’s opinions might
run afoul of any of the concerns addressed by that rule. The court is neither required nor inclined to
make a party’s arguments for it. See West LB AG, New York Branch v. DT Land Development, LLC,
2010 WL 2867903 at *1 n. 1 (D. Colo. July 21, 2010) (Blackburn, J.).

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of the expert’s opinions. See FPP: Evidence § 6265 (“Gaps in an expert witness's
qualifications or knowledge generally go to the weight of the witness's testimony, not its
admissibility.”) (internal quotation marks omitted); Compton v. Subaru of America,
Inc., 82 F.3d 1513, 1518 (10th Cir.1996) (weaknesses in underpinnings of expert’s
opinion go to weight and not admissibility of testimony), overruled on other grounds
by Kumho Tire Co., 119 S.Ct. at 1174-75. Plaintiff is free to explore these alleged
gaps in Mr. Freeh’s opinions on cross-examination. See Daubert, 113 S.Ct. at 2798
(“Vigorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.”).
THEREFORE, IT IS ORDERED that plaintiff’s Motion In Limine To Preclude
Expert Testimony of Louis J. Freeh [#220], filed August 29, 2014, is DENIED.
Dated February 4, 2015, at Denver, Colorado.
BY THE COURT:

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