Charalambopoulos v. Grammer
Filing
210
MEMORANDUM OPINION AND ORDER conditionally granting #116 MOTION to Partially Modify Scheduling Order, filed by Camille Grammer; granting #133 Motion for bifurcated trial of exemplary damages, filed by Camille Grammer; granting #134 Motion to strike Charalambopoulos' designation of Dr. Ramirez, filed by Camille Grammer; granting in part and denying in part #142 Motion to Strike Francis, filed by Camille Grammer, and granting motion to strike re-designation of Francis as an affirmative expert; granting in part and denying in part #144 Motion to Strike Charalambopoulos' expert Collins, filed by Camille Grammer; granting in part and denying in part #146 Motion to Strike Charalambopoulos' expert Browning, filed by Camille Grammer; and denying #148 Motion to Strike filed Charalambopoulos' expert Dr. Gruszecki, filed by Camille Grammer. (Ordered by Judge Sidney A Fitzwater on 3/8/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIMITRI CHARALAMBOPOULOS,
§
§
Plaintiff-counterdefendant, §
§ Civil Action No. 3:14-CV-2424-D
VS.
§
§
CAMILLE GRAMMER,
§
§
Defendant-counterplaintiff. §
MEMORANDUM OPINION
AND ORDER
In this memorandum opinion and order, the court decides the following seven
motions: (1) defendant-counterplaintiff Camille Grammer’s (“Grammer’s”) motion to
partially modify scheduling order to permit defendant-counterplaintiff to re-designate Eric
Holden (“Holden”) as an expert in her case-in-chief; (2) Grammer’s motion for bifurcated
trial of exemplary damages; (3) Grammer’s motion to strike plaintiff-counterdefendant
Dimitri Charalambopoulos’ (“Charalambopoulos’”) designation of Pedro Ramirez, M.D.
(“Dr. Ramirez”) as an expert; (4) Grammer’s motion to strike Charalambopoulos’ expert
Livia Liu Francis, Esquire (“Francis”) and motion to strike re-designation of Francis as an
affirmative expert; (5) Grammer’s motion to strike Charalambopoulos’ expert Joanna Collins
(“Collins”); (6) Grammer’s motion to strike Charalambopoulos’ expert John Browning,
Esquire (“Browning”); and (7) Grammer’s motion to strike Charalambopoulos’ expert Amy
Gruszecki, D.O. (“Dr. Gruszecki”).
I
This case is the subject of several prior memorandum opinions and orders. See, e.g.,
Charalambopoulos v. Grammer, 2017 WL 606639 (N.D. Tex. Feb. 15, 2017) (Fitzwater, J.);
Charalambopoulos v. Grammer, 2015 WL 2451182 (N.D. Tex. May 22, 2015) (Fitzwater,
J.); Charalambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. Jan. 29, 2015) (Fitzwater,
J.). The court will therefore pretermit a general discussion of the background facts and
procedural history and will discuss the pertinent matters in the context of the particular
motion it is deciding.
II
The court begins with Grammer’s motion to partially modify the scheduling order to
permit defendant-counterplaintiff to re-designate Holden as an expert in her case-in-chief.
A
In its September 3, 2015 memorandum opinion and order, the court modified the
August 13, 2014 scheduling order (“Scheduling Order”) to require the parties to designate
expert witnesses by October 1, 2015 and to designate rebuttal expert witnesses by December
1, 2015. Charalambopoulos v. Grammer, 2015 WL 5165344, at *5 (N.D. Tex. Sept. 3,
2015). On December 1, 2015 Grammer designated Holden as a rebuttal expert on the subject
of polygraph examinations. On May 20, 2016, several months after the deadline to designate
expert witnesses, she filed the instant motion to partially modify the Scheduling Order to
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permit her to re-designate Holden as an affirmative expert.1
B
When deciding whether to allow late designation of an expert witness, the court’s
discretion is guided by four factors: “(1) the explanation for the failure to identify the
witness, (2) the importance of the testimony, (3) the potential prejudice in allowing the
testimony, and (4) the availability of a continuance to cure such prejudice.” Wright v.
Blythe-Nelson, 2001 WL 804529, at *2 (N.D. Tex. July 10, 2001) (Fitzwater, J.) (citing
Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). The court considers the four
factors holistically and “does not mechanically count the number of factors that favor each
side.” EEOC v. Serv. Temps, Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct. 13, 2009)
(Fitzwater, C.J.), aff’d, 679 F.3d 323 (5th Cir. 2012). When, as here, the scheduling order
prescribes the timeline for expert witness designation, the district court has “‘broad discretion
to preserve the integrity and purpose of the pretrial order.’” Geiserman, 893 F.2d at 790
(quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)).
C
1
The court initially considers Grammer’s explanation for seeking leave to re-designate
Holden as an affirmative expert witness in her case-in-chief after the deadline. Grammer
1
By “affirmative” expert, Grammer means an expert who will testify in support of a
claim or defense on which Grammer will have the burden of proof at trial and that she
intends to call as a witness in her case-in-chief rather than as a rebuttal witness.
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contends that, although she timely designated Holden as a rebuttal expert, she did not
designate him as an expert in her case-in-chief because she was unaware of the potential
affirmative expert testimony that Holden might offer to support her defenses and to establish
the elements of her affirmative claims against Charalambopoulos until after she deposed Joe
Morris (“Morris”) and Michael Park (“Park”)—the individuals who administered polygraph
examinations to Charalambopoulos in November 2013—and discovered “the highly
suspicious nature of the procurement and scoring of the two polygraph examinations.” D.
5/20/16 Br. 2.2 Grammer contends that, once this information came to light as a result of the
Morris and Park depositions, she amended her claims against Charalambopoulos to assert
that the manner of procuring the polygraph exams, the scoring methodology, and the
unsupportable conclusions afforded the exams by Park and Morris constituted evidence that
Charalambopoulos knowingly defamed her by claiming that she fabricated the allegations
of assault (the “Alleged Assault”), and that the polygraph exam results supported her
allegations of fabrication. Grammer maintains that
[a]s a result, Mr. Holden’s testimony and expert opinions were
now no longer limited to impugning [Charalambopoulos’] effort
to introduce polygraph evidence in an attempt to establish
[Charalambopoulos’] innocence of the assault, but are relevant
to explaining how egregious the polygraph exams, scoring, and
conclusions are in order to support Grammer’s claims of
defamation against [Charalambopoulos] and defend against the
claims of fabrication.
2
Due to the number of motions being decided in this memorandum opinion and order
and the number of pertinent briefs and appendixes filed, the court will cite the brief or
appendix by the party who filed it and the date filed.
-4-
Id. at 7.
Charalambopoulos responds that Grammer cannot show good cause to modify the
Scheduling Order because she knew about the polygraph examinations and their results for
at least 24 months prior to the October 1, 2015 deadline. He maintains that, despite this
knowledge, Grammer never sought to conduct any discovery regarding the methodology
used in administering the polygraphs or the reliability of these methods, and did not notice
the depositions of Morris or Park until nine months after the original expert designation
deadline.3 Charalambopoulos contends that Grammer has offered no explanation for why
she made no effort before the applicable deadline to obtain information regarding the “highly
suspicious nature of the procurement and scoring of the two polygraph examination[s],” P.
6/10/16 Br. 3, and that she has made no attempt to show that she made a diligent effort to
obtain this information or explain why she could not have procured it in a timely manner.
Grammer replies that Charalambopoulos’ argument about her lack of diligence omits
the fact that a discovery stay was in place until May 22, 2015. Grammer posits that, once the
stay was lifted, she prioritized discovery from other fact witnesses because, until she deposed
Park and Morris, she neither knew nor should have anticipated the gross irregularities in the
polygraph examinations. She further contends that, when Charalambopoulos did not
designate Park and Morris by the October 1, 2015 expert designation deadline, she
immediately initiated third-party discovery from them, serving them with subpoenas to
3
The Scheduling Order originally set a March 1, 2015 deadline for designating
experts. Grammer noticed the depositions of Morris and Park on December 8, 2015.
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produce documents on October 5, 2015 and deposition notices on November 20, 2015.
2
The court concludes that the first factor weighs slightly in favor of granting leave.
Grammer has demonstrated good cause for failing to designate Holden by the October 1,
2015 deadline: she did not know until she deposed Morris and Park that she would be able
to rely on the circumstances surrounding the two polygraph examinations to support her
defamation claim and defend against Charalambopoulous’ claims.
To the extent
Charalambopoulos argues that Grammer failed to exercise reasonable diligence in pursuing
the depositions of Holden and Park, the court disagrees. As both sides point out, the
admissibility of the polygraph examination reports themselves has been a contested issue
throughout the discovery period. Grammer explains that
[a]t the time of the October 1, 2015 deadline to designate
affirmative experts . . . [she] did not designate Holden as an
expert in her case-in-chief, because, at that time, the anticipated
use of Holden as an expert was to rebut testimony or evidence,
such as the polygraph examination reports themselves, in the
event Plaintiff succeeded in having such evidence admitted at
trial.
D. 5/20/16 Br. 2 (emphasis added). Once the October 1, 2015 deadline passed and
Charalambopoulos did not designate Morris or Park as an affirmative expert in support of his
case-in-chief, Grammer immediately served written discovery requests, and noticed
depositions of Morris and Park the following month. At that point, Grammer still believed
that she would use Holden only as rebuttal expert. Grammer maintains in her reply that,
before she deposed Morris and Park, she “neither knew of nor should have anticipated the
-6-
gross irregularities in the polygraph examinations.” D. 6/24/16 Reply 6. The court has no
basis to doubt this assertion. Without this knowledge, Grammer’s waiting until November
2015 to notice the depositions of Morris or Park does not demonstrate a lack of diligence.
Despite the foregoing conclusion, Grammer has not explained why she waited more
than five months after deposing Morris and Park4 to file her motion to modify the Scheduling
Order. Accordingly, although the court finds that the first factor weighs in Grammer’s favor,
it concludes that this factor weighs only slightly in her favor. This is because Grammer did
not promptly move to modify the Scheduling Order after she deposed Morris and Park, and
realized she would be able to rely on the circumstances surrounding the two polygraph
examinations to support her defamation claim and defend against Charalambopoulous’
claims.
D
The court next considers the importance of the testimony that Grammer seeks to
introduce.
1
Grammer contends that Holden’s testimony is relevant to explaining “how egregious
the polygraph exams, scoring, and conclusions are in order to support Grammer’s claims of
defamation against [Charalambopoulos] and defend against the claims of fabrication.” D.
5/20/16 Br. 7.
4
Morris and Park were both deposed on December 8, 2015. As noted above, Grammer
filed her motion to modify the Scheduling Order on May 20, 2016.
-7-
Charalambopoulos responds that Holden’s expert testimony regarding the polygraph
results is unimportant because the polygraph results are likely inadmissible. According to
Charalambopoulos,
[a]lthough the Court has not made . . . a ruling as to the
admissibility of the polygraph exams and conclusion[s],
[Grammer’s] own motion spends significant time enumerating
reasons why the polygraph exams and results are not
scientifically reliable. . . . Assuming arguendo, [Grammer’s]
complaints with regard to the methodology, reliability, and
conclusions of Morris and Park are convincing to this Court, it
is unlikely the polygraph result will be admitted at trial.
Therefore, any testimony regarding the polygraph and its
deficiencies has no importance.
P. 6/10/16 Br. 6.
Grammer replies that she does not seek to admit the polygraph results to prove that
the Alleged Assault took place; she instead seeks to use the polygraph examinations and
surrounding data to demonstrate that Charalambopoulos knowingly orchestrated an effort to
defame her by relying upon polygraph examinations that he and his counsel knew suffered
from various infirmities. Grammer therefore maintains that her proposed use of the
polygraph evidence does not hinge on whether the polygraph results are scientifically
reliable. She also posits that Charalambopoulos’ attorney submitted for distribution to the
grand jury the polygraph reports reciting that Charalambopoulos had “passed” the
polygraphs, and she argues that, if Charalambopoulos’ evidence of the grand jury’s no bill
is permitted, she should be entitled to introduce evidence about the polygraph examinations
themselves to demonstrate that the grand jury may have relied on manipulated polygraph
-8-
examinations in reaching its decision not to indict Charalambopoulos. Grammer contends
that her expert evidence concerning Charalambopoulos’ polygraph examinations and their
deficiencies is important, despite Charalambopoulos’ attempt to cast the polygraphs as
inadmissible.
2
The court concludes that the evidence is important. In the Fifth Circuit, there is no
per se rule against the admissibility of polygraph evidence. United States v. Posado, 57 F.3d
428, 431-36 (5th Cir. 1995). But even if the court assumes arguendo that the polygraph
results themselves are inadmissible, Grammer has still established that Holden’s testimony
is important. First, his testimony supports Grammer’s theory that Charalambopoulos
knowingly used faulty polygraph test results to defame Grammer. And, second, to the extent
Charalambopoulos intends to rely on the grand jury’s decision to return a no bill to prove that
he did not assault Grammer, and assuming that the foundation is laid that the grand jury had
the polygraph results, Grammer should be permitted to rely on Holden’s testimony to explain
why the polygraph results on which the grand jury may have relied in reaching its conclusion
were “manipulated” and otherwise infirm. D. 6/24/16 Reply 4.
E
The court considers, together, the potential prejudice to Charalambopoulos in allowing
Grammer to designate Holden as an expert, and the availability of a continuance to cure any
prejudice.
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1
Grammer contends that allowing her to designate Holden as an affirmative expert in
her case-in-chief will not prejudice Charalambopoulos because Holden does not intend to
change or add to the opinions that he would have offered as a rebuttal expert; Holden’s
opinions are set out in the expert report provided to Charalambopoulos over five months ago;
Charalambopoulos can take Holden’s deposition; and Charalambopoulos already has his
polygraph examiners (Park and Morris) to support their reports.
Charalambopoulos responds that he will be prejudiced if the court permits Holden to
testify as an affirmative expert in Grammer’s case-in-chief because he will have to take
Holden’s deposition; he will have to hire additional polygraph examiners and experts to rebut
Holden’s testimony; he will have to petition the court to extend the deadlines to designate
such experts as rebuttal experts; and he would most likely have to undergo another polygraph
to confirm the results of the first and to rebut any affirmative testimony by Holden.
Charalambopoulos maintains that granting Grammer’s motion will result in additional delay
and will significantly increase the expense of prosecuting his claims, and that this prejudice
cannot be cured by a continuance.
Grammer replies that, although Holden was available to be deposed in May 2016,
Charalambopoulos elected not to depose him during the discovery period. Nonetheless,
Grammer states that she “would not oppose Plaintiff taking Holden’s deposition outside of
the discovery period should the Court grant Grammer’s [motion].” P. 6/24/16 Reply 8. She
disputes that Charalambopoulos will have to undergo another polygraph examination,
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contending that she seeks to offer Holden’s testimony only to demonstrate the irregularities
and dubious circumstances surrounding the polygraph examinations that Park and Morris
administered in November 2013, and that Charalambopoulos then used to defame Grammer
and procure a no bill.
Finally, Grammer contends that there is ample time for
Charalambopoulos to depose Holden before trial, which has now been set for the two-week
docket of December 4, 2017,5 and that no continuance is necessary.
2
The court concludes that the last two factors weigh in favor of granting the motion.
As the court explained in Hoffman v. L & M Arts, 2013 WL 81578, at *2 (N.D. Tex. Jan. 8,
2013) (Fitzwater, C.J.):
[i]n the sense relevant here, prejudice arises, if at all, from the
timing of the disclosure rather than from the content of the
disclosure. If prejudice could be demonstrated based on the
content of the disclosure, a party could always show prejudice
when required to rebut new evidence. The timing of the
disclosure results in prejudice when, for instance, the opposing
party must incur unreasonable additional costs that could have
been avoided by an earlier disclosure, or the party is precluded
under the scheduling order from developing and presenting
rebuttal evidence. Defendant[] ha[s] not shown that [he] must
incur unreasonable additional costs that could have been
avoided by an earlier disclosure.
Id. at *2. As in Hoffman, Charalambopoulos points to no unreasonable additional costs or
delay that will result from the timing of Grammer’s designation of Holden as an expert for
5
Grammer actually cited the December 5, 2016 trial setting that was in effect when
she filed her reply. The trial setting has since been reset to the two-week docket of
December 4, 2017 for reasons unrelated to Grammer’s motion.
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her case-in-chief. To the extent Charalambopoulos contends that delay will result from the
need to depose Holden, Grammer has stated that she will not oppose Charalambopoulos’
taking Holden’s deposition outside of the discovery period. Nor has Charalambopoulous
established that granting Grammer’s motion will require him to incur significant additional
costs. The costs he cites in his brief—i.e., the costs he will incur from deposing Holden and
hiring additional polygraph examiners and experts to rebut Holden’s testimony—are costs
that Charalambopoulos would have incurred had Grammer timely designated Holden, and
Charalambopoulos has provided no reason to conclude that he will incur any additional costs
as a result of the delay.6 Finally, this case is set for trial during the two-week docket
beginning December 4, 2017. There is no indication that, if the court grants Grammer’s
motion, Charalambopoulos will be unable to obtain any additional discovery he requires well
in advance of that trial date, or that a continuance will be necessary to cure any alleged
prejudice.
F
The court now considers the four factors holistically. “It does not mechanically count
the number of factors that favor each side.” Serv. Temps, Inc., 2009 WL 3294863, at *3.
Assessing the factors as a whole, the court holds that Grammer has met the good cause
6
Nor can the court see any reason why permitting Grammer to designate Holden as
an affirmative expert (as opposed to a rebuttal expert) will necessitate Charalambopoulos’
undergoing an additional polygraph examination. Grammer intends to challenge the
methodology that Park and Morris used in administering the polygraph examinations;
Charalambopoulos should be able to respond to Grammer’s challenge without undergoing
an additional polygraph examination.
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standard for modifying the Scheduling Order. Although Grammer has failed to address why
she did not promptly move to amend the Scheduling Order after she deposed Park and
Morris, she has established good cause for failing to designate Holden as an affirmative
expert by the October 1, 2015 deadline, and she has shown that Holden’s affirmative expert
testimony is important to her case-in-chief. Additionally, Charalambopoulos has failed to
show that he will be materially prejudiced by Grammer’s re-designating Holden as an
affirmative expert.
G
Accordingly, the court grants Grammer’s motion. She may re-designate Holden as
an affirmative expert in support of her case-in-chief on the condition that she permits
Charalambopoulos to take Holden’s deposition. Charalambopoulos must notify Grammer
of this request within 28 days of the date this memorandum opinion and order is filed.
III
Grammer moves to strike Charalambopoulos’ designation of Dr. Ramirez as an expert.
Dr. Ramirez performed Grammer’s October 11, 2013 surgery to treat endometrial and uterine
cancer. On October 16, 2013, several hours after Charalambopoulos allegedly assaulted
Grammer, Dr. Ramirez examined Grammer.
A
Grammer contends that Charalambopoulos’ attempt to designate Dr. Ramirez as an
expert in his second amended Fed. R. Civ. P. 26(a) disclosures—which he filed on the day
of Dr. Ramirez’s deposition (which coincided with the close of discovery), over seven
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months after the deadline to designate affirmative experts—is untimely and otherwise
improper and should be stricken.
In his response to Grammer’s motion to strike,
Charalambopoulos addresses the four factors that this court considers when deciding a
motion to amend a scheduling order, even though Charalambopoulos does not explicitly
move to amend the Scheduling Order to permit him to designate Dr. Ramirez. Because
Charalambopoulos has adequately addressed the four factors, the court will treat his response
as if he had moved to amend the Scheduling Order to permit him to designate Dr. Ramirez,
and it will address the four factors outlined above: “(1) the explanation for the failure to
identify the witness, (2) the importance of the testimony, (3) the potential prejudice in
allowing the testimony, and (4) the availability of a continuance to cure such prejudice.”
Wright, 2001 WL 804529, at *2.
B
The court begins with the first factor: Charalambopoulos’ explanation for failing to
designate Dr. Ramirez by the October 1, 2015 deadline.
1
Charalambopoulos contends that, during Dr. Ramirez’s June 15, 2016 deposition, he
opined for the first time that Grammer’s injuries were inconsistent with abuse; that, on that
same day, based on this newly disclosed opinion, Charalambopoulos designated Dr. Ramirez
as a possible expert to testify as to Grammer’s injuries and the opinions Dr. Ramirez gave
in his deposition; and that Charalambopoulos did not intentionally delay designating Dr.
Ramirez, but “merely learned of new opinions Dr. Ramirez had not previously disclosed and
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immediately designated him as an expert.” P. 8/25/16 Br. 2.
Grammer responds that, based on the development of discovery in this case,
Charalambopoulos would have had sufficient knowledge by August 28, 2014, at the latest,
either to designate Dr. Ramirez as a combined fact/expert witness or to notice his deposition
once general discovery commenced in the case in May 2015. Grammer contends that,
although Charalambopoulos’ counsel may not have heard Dr. Ramirez testify until June 15,
2016, this does not justify Charalambopoulos’ designation seven months after the deadline
because it does not explain or address why Charalambopoulos did not attempt to discover Dr.
Ramirez’s testimony before that time.
2
The court concludes that Charalambopoulos has failed to show good cause for his
delay in designating Dr. Ramirez. Although the discovery of new evidence during a
deposition often justifies amending the scheduling order to enable the parties to address this
newly-discovered evidence—in fact, as discussed above, the discovery of new evidence has
provided
“good
cause”
for
the
late
re-designation
of
Grammer’s
expert,
Holden—Charalambopoulos does not offer any reason for waiting until the last day of the
discovery period (over eight months after the deadline for designating expert witnesses) to
depose Dr. Ramirez.
Grammer has adduced evidence that, by August 28, 2014,
Charalambopoulos’ attorney had obtained the Houston Police Department file of its
investigation of the Alleged Assault, and that the file included an audio recording of Officer
Bertha Massie’s (“Officer Massie’s”) interview of Dr. Ramirez, Officer Massie’s write-up
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of the interview, and Dr. Ramirez’s notes from his examination of Grammer on October 16,
2013, just hours after the Alleged Assault. Having this information in their possession, it
would have been reasonable for Charalambopoulos’ counsel to diligently pursue deposition
or other testimony from Dr. Ramirez so that Charalambopoulos could determine before the
October 1, 2015 deadline whether he wanted to designate Dr. Ramirez as an expert. The
court concludes that Charalambopoulos has not shown good cause for the delay.
C
The second factor considers the importance of Dr. Ramirez’s testimony.
1
Charalambopoulos contends that Dr. Ramirez’s testimony is “crucial” to his case
because, as the physician who treated Grammer within hours of the Alleged Assault, Dr.
Ramirez is in the best position to opine on the cause of Grammer’s injuries. P. 8/25/16 Br.
3.
Grammer responds that Dr. Ramirez’s expert testimony is not important because
Charalambopoulos has designated Dr. Gruszecki, a forensic pathologist, to testify regarding
the injuries that Grammer allegedly sustained; “[t]he ability to offer proof ‘through other
witnesses and medical records’ is evidence that Dr. Ramirez’s expert testimony is not
important to Plaintiffs’s case, since the topic of that purported expertise is already subsumed
in that of an expert specially retained by Plaintiff,” D. 7/14/16 Br. 3 (citation omitted); and
Charalambopoulos has not provided any reason why he requires Dr. Ramirez’s expert
opinions on a subject for which he has already designated a retained expert.
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2
The court concludes that Charalambopoulos has not shown that he needs Dr.
Ramirez’s expert testimony to prove that he did not assault Grammer. First, he can call Dr.
Ramirez as fact witness to testify about the medical care he provided Grammer.7 Second, he
has designated Dr. Gruszecki to provide expert testimony “regarding the alleged injuries
sustained by Grammer during the alleged October 16, 2013 assault,” and to opine that
“[Charalambopoulos] did not assault Grammer, and the bruises presented by Grammer on
her wrists/forearms are consistent with those sustained when she assaulted
[Charalambopoulos], or from the medical treatment she received at M.D. Anderson.” D.
7/14/16 App. 43. Under these circumstances, the court concludes that the importance of the
testimony is either neutral or weighs against granting leave.
7
Although the court has not located any controlling Fifth Circuit authority,
in the Eleventh Circuit, treating physicians who are not
designated as experts may offer ‘lay’ testimony that implicates
their specialized experience as a physician if the testimony is an
account of their observations during the course of treatment or
if it is offered for the purpose of explaining the physician’s
decision-making process or the treatment provided.
Eberhart v. Novartis Pharms. Corp., 867 F.Supp.2d 1241, 1252-53 (N.D. Ga. 2011) (citing
United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)). The court therefore
concludes that Dr. Ramirez can testify as a non-expert about his observations during the
course of treating Grammer and for the purpose of explaining his decision-making process
or the treatment provided. The availability of this fact testimony, in combination with Dr.
Gruszecki’s expert testimony, eliminates the need for Dr. Ramirez’s expert testimony.
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D
The court now turns to the potential prejudice in allowing Charalambopoulos to
designate Dr. Ramirez.
1
Charalambopoulos contends that Grammer will not be prejudiced or even unfairly
surprised by the designation of Dr. Ramirez because Grammer knows exactly what Dr.
Ramirez may testify to, considering that she also designated Dr. Ramirez as an expert witness
regarding her alleged injuries. Grammer responds that because her counsel had not been
apprised that Charalambopoulos would try to proffer Dr. Ramirez as an expert until the day
of Dr. Ramirez’s deposition, he was denied the opportunity to know what Dr. Ramirez’s
opinions would be in advance of his deposition, and thus could not fully equip himself to
explore these opinions.
2
The court concludes that this factor weighs in favor of granting leave. Grammer
contends that her counsel was inadequately prepared for Dr. Ramirez’s deposition and had
to question him “on the fly,” D. 7/14/16 Br. 4, because of Charalambopoulous’ late
designation. But she does not contend that her counsel was unable to elicit the testimony he
needed as a result. Nor does she maintain that the late designation of Dr. Ramirez will
require her to conduct additional discovery or will delay the trial.
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E
The court next considers the availability of a continuance to cure any prejudice.
Charalambopoulos does not address this factor, and Grammer contends that it is neutral. The
court accordingly assumes arguendo that the last factor is neutral.
F
Considering the four factors holistically, the court concludes that Charalambopoulos
has not demonstrated good cause to modify the Scheduling Order to permit the late
designation of Dr. Ramirez as an expert witness. Charalambopoulos has failed to offer a
satisfactory explanation for not timely designating Dr. Ramirez, and his characterization of
Dr. Ramirez’s testimony as “crucial” largely ignores the substantially similar testimony that
he will be able to obtain through a combination of Dr. Ramirez’s testimony as a fact witness
and the expert opinion testimony of Dr. Gruszecki, a forensic pathologist.
Although the court has concluded that Grammer has not demonstrated undue
prejudice, this does not effectively end the court’s analysis. As this court has previously
explained:
If the absence of undue prejudice or the availability of a
continuance to cure such prejudice were alone determinative, the
Rule 16(b)(4) standard would not be one of “good cause”; it
would be an “absence of incurable prejudice” standard. A
moving party who, for example, had shown a complete lack of
diligence and who undoubtedly could reasonably have met the
scheduling deadline would still be able to obtain an amended
scheduling order merely by demonstrating that the opposing
party would not be prejudiced. But the standard is “good
cause,” and the good cause standard focuses on the diligence of
the party seeking to modify the scheduling order. Courts deny
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motions to amend the scheduling order when the moving party
fails to demonstrate that, despite her diligence, she could not
have reasonably met the scheduling deadline.
Matamoros v. Cooper Clinic, 2015 WL 4713201, at *3 (N.D. Tex. Aug. 7, 2015) (Fitzwater,
J.) (citation omitted).
In the present case, the discovery stay was lifted on May 22, 2015. At that point,
Charalambopoulos’ counsel had in their possession documents showing that Dr. Ramirez had
examined Grammer hours after the Alleged Assault. In fact, Charalambopolous identified
Dr. Ramirez as an individual likely to have discoverable information in his September 15,
2014 initial disclosures. Charalambopoulos provides no explanation for his failure to depose
Dr. Ramirez until the last day of the discovery period. Nor does he show that, exercising
reasonable diligence, he could not have determined what Dr. Ramirez’s opinions were or that
Dr. Ramirez should have been designated as an expert by the October 1, 2015 deadline. In
deciding whether to permit the late expert designation, the court must take all four factors
into consideration. Evaluating the factors holistically, the court concludes that they weigh
against permitting Charalambopoulos to make this late designation. Accordingly, treating
the pending motion as a motion for leave to amend the Scheduling Order, the court finds that
Charalambopoulos has failed to demonstrate good cause for doing so, and, accordingly,
denies the motion.
- 20 -
IV
Grammer moves to bifurcate trial of the amount of exemplary damages. She requests
that the Court bifurcate the trial of this action so that the
determination, if necessary, of the amount of any exemplary
damages to be awarded to [Charalambopoulos] can be held in a
second phase of trial, and only after the Court determines that
there is any legal basis for an award of exemplary damages to
[Charalambopoulos] based on the findings of the jury in the first
phase of the trial, and for such other relief to which Grammer
may be entitled.
D. 7/13/16 Br. 4.
The decision whether to bifurcate a trial “is primarily procedural in nature and . . .
federal procedural law controls.” Rosales v. Honda Motor Co., 726 F.2d 259, 260 (5th Cir.
1984). Rule 42(b) provides that a court may bifurcate any claim or separate issue in a trial
in order to promote convenience or to avoid prejudice. The decision to bifurcate the damages
and liability portions of a trial under Rule 42(b) is a matter within the sound discretion of the
trial court. See Rosales, 726 F.2d at 260.
Charalambopoulos does not oppose Grammer’s motion. Accordingly, the motion to
bifurcate is granted.
V
The court now turns to Grammer’s Daubert8 motions. “The court decides these
motions in its role as gatekeeper under Fed. R. Evid. 702.” Johnson v. BAE Sys. Land &
Armaments, L.P., 2014 WL 1714487, at *25 (N.D. Tex. Apr. 30, 2014) (Fitzwater, C.J.)
8
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
- 21 -
(citations omitted). “The court may admit proffered expert testimony only if the proponent,
who bears the burden of proof, demonstrates that (1) the expert is qualified, (2) the evidence
is relevant to the suit, and (3) the evidence is reliable.” Nunn v. State Farm Mut. Auto. Ins.
Co., 2010 WL 2540754, at *2 (N.D. Tex. June 22, 2010) (Fitzwater, C.J.) (citing Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147 (1999)).
The first requirement is that the expert be qualified. “Before a district court may
allow a witness to testify as an expert, it must be assured that the proffered witness is
qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’”
United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Fed. R. Evid. 702). “A
district court should refuse to allow an expert witness to testify if it finds that the witness is
not qualified to testify in a particular field or on a given subject.” Id. (citing Wilson v.
Woods, 163 F.3d 935, 937 (5th Cir. 1999)). “Rule 702 does not mandate that an expert be
highly qualified in order to testify about a given issue. Differences in expertise bear chiefly
on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” Huss
v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citation omitted).
The second requirement is that the expert’s testimony be relevant. To be relevant,
“expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine
a fact in issue.’” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (quoting
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993)). “Relevance depends upon
‘whether [the expert’s] reasoning or methodology properly can be applied to the facts in
issue.’” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting
- 22 -
Daubert, 509 U.S. at 593); see also Rule 702(d) (requiring that “expert has reliably applied
the principles and methods to the facts of the case”).
The third requirement is that the expert’s testimony be reliable. “Reliability is
determined by assessing ‘whether the reasoning or methodology underlying the testimony
is scientifically valid.’” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-93); see
also Rule 702(c) (requiring that “testimony [be] the product of reliable principles and
methods”). Expert testimony “must constitute ‘more than subjective belief or unsupported
speculation.’” Nunn, 2010 WL 2540754, at *2 (quoting Daubert, 509 U.S. at 590). The
court focuses on the expert’s methodology, not the conclusions generated by it. Id. at *4
(citing Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997)). If, however, “there is
simply too great an analytical gap between the [basis for the expert opinion] and the opinion
proffered,” the court may exclude the testimony as unreliable. Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997); see also Johnson v. Arkema, Inc., 685 F.3d 452, 460-61 (5th Cir.
2012). This review is usually conducted by considering the five nonexclusive Daubert
factors.9 But these factors “may or may not be pertinent in assessing reliability, depending
on the nature of the issue, the expert’s particular expertise, and the subject of [the]
testimony.” Kumho, 526 U.S. at 150.
9
The five nonexclusive Daubert factors are: (1) whether the expert’s technique can
be or has been tested; (2) whether the method has been subjected to peer review and
publication; (3) the known or potential rate of error of a technique or theory when applied;
(4) the existence and maintenance of standards and controls; and (5) the degree to which the
technique or theory has been generally accepted in the scientific community. Daubert, 509
U.S. at 593-94.
- 23 -
The burden is on the proponent of the expert testimony to establish its admissibility
by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10; see also Johnson,
685 F.3d at 459. The court’s inquiry is flexible in that “[t]he relevance and reliability of
expert testimony turns upon its nature and the purpose for which its proponent offers it.”
United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citation omitted). “As a
general rule, questions relating to the bases and sources of an expert’s opinion affect the
weight to be assigned that opinion rather than its admissibility and should be left for the [trier
of fact’s] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
“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, 509 U.S. at 596; Nunn, 2010 WL 2540754, at *4.
VI
The court begins with Grammer’s motion to strike Francis, Charalambopoulos’
rebuttal expert, and to strike the re-designation of Francis as an affirmative expert.
A
Charalambopoulos is suing Grammer for defamation and malicious prosecution,
alleging, inter alia, that Grammer falsely accused him of assaulting her. To prove the falsity
of Grammer’s accusations, Charalambopoulos intends to rely, in part, on a Texas grand
jury’s decision not to indict him on criminal charges. Although Grammer disputes the
admissibility of the grand jury’s decision to return a no bill, she has proffered the testimony
and opinions of George M. Secrest, Jr., Esquire (“Secrest”), a Texas criminal attorney, to
- 24 -
provide background information on the grand jury process and the legal implications of the
grand jury’s decision to return a no bill.10 Secrest has offered no opinion on why the grand
jury may have decided not to indict Charalambopoulos.
Charalambopoulos has designated Francis, who has over twenty years of criminal law
experience as a prosecutor, judge, and defense attorney, as a rebuttal expert. In her rebuttal
Expert Report (“Francis Report”), Francis states that, in her experience, due to the low
threshold standard of probable cause and other reasons discussed in the Francis Report,
family violence cases are rarely, if ever, no billed; that having an actual complaining witness
testify on a contested family violence case “is unheard of,” D. 7/15/16 App. 22; and that
[b]y definition then and after [Grammer] testified, the resulting
NO-BILL on [Grammer’s] Family Violence allegations meant
that this low threshold of Probable Cause was NOT reached by
the Grand Jury. Thus, whatever was said by [Grammer] to the
Grand Jury (and likely under oath) must have been highly
suspect, against the great weight of the evidence and common
sense or inconsistent with the truth. Based on my experience,
there is no other realistic explanation.
Id. at 23.
Grammer moves to exclude Francis’ testimony on six grounds,11 each of which the
10
Secrest opines in his Expert Report (“Secrest Report”) that, under Texas law, the
“lack of probable cause” element of a malicious prosecution claim turns on the complainant’s
belief rather than a grand jury’s assessment of probable cause, and there are a number of
reasons—apart from the prosecution’s failure to establish probable cause—why a grand jury
might choose to return a no bill.
11
Grammer contends that (1) Francis’ testimony is not relevant to any issue in this
case; (2) Francis’ opinions on the grand jurors’ states of mind and Grammer’s credibility are
not the proper subject of expert testimony; (3) grand jury proceedings are secret, and to
protect the integrity of these proceedings, the court should exercise its inherent power to
- 25 -
court addresses below.
B
1
Grammer generally contends that a grand jury’s no bill is not relevant to the probable
cause element of a malicious prosecution claim or any other contested issue in this case. She
maintains that, “[b]ecause the grand jury decision itself is not relevant, Francis’s testimony
about the grand jury—which is even further removed insofar as it requires her to speculate
that the grand jurors concluded there was not probable cause to indict—is not relevant
either.” D. 7/15/16 Br. 8. Grammer also posits that Francis’ opinion is unreliable because,
inter alia, Francis was not privy to the secret grand jury deliberations, so her conclusion
regarding why the grand jury no billed Charalambopoulos is speculative. Finally, Grammer
contends that Francis’ testimony goes beyond the proper role of an expert and invades the
province of the jury because she offers assessments of witness credibility (by opining that
Grammer’s grand jury testimony was not credible) and opinions on state of mind
(specifically, the grand jurors’ states of mind that Grammer was not credible and that
probable cause did not exist to pursue the case against Charalambopoulos).
Charalambopoulos responds to Grammer’s relevance argument by contending that
exclude Francis’ speculative testimony on the proceedings at issue here; (4) Francis’
speculative testimony fails Rule 702’s reliability requirement; (5) Francis is not qualified as
an expert on grand jury decision-making; and (6) Francis’ testimony is not proper rebuttal
testimony, and Charalambopoulos’ untimely effort to re-designate her as an affirmative
expert is improper.
- 26 -
“Francis’ testimony is relevant to the extent this Court decides to allow Secrest to testify
about the grand jury process.” P. 8/25/16 Br. 3. He contends that Francis’ opinions about
the grand jury proceedings are reliable because they “are deductions based on what Francis
knew and observed, not simply ‘speculative’ supposition.” Id. at 5.
2
Under Rule 702, an expert’s can testify for the purpose of educating the jurors about
general principles that are pertinent to the case. See, e.g., Strauss Farms, Inc. v. Combs
Commodities, Inc., 2005 WL 946523, at *3 (D. Kan. Mar. 29, 2005) (allowing testimony
about nature of spontaneous combustion of cottonseed without applying theory to fire at issue
in case).
[I]t might also be important in some cases for an expert to
educate the factfinder about general principles, without ever
attempting to apply these principles to the specific facts of the
case. For example, experts might instruct the factfinder on the
principles of thermodynamics, or bloodclotting, or on how
financial markets respond to corporate reports, without ever
knowing about or trying to tie their testimony into the facts of
the case. The amendment does not alter the venerable practice
of using expert testimony to educate the factfinder on general
principles.
Fed. R. Evid. 702 advisory committee’s note. When an expert testifies to educate the
factfinder on general principles, “Rule 702 simply requires that: (1) the expert be qualified;
(2) the testimony address a subject matter on which the factfinder can be assisted by an
expert; (3) the testimony be reliable; and (4) the testimony ‘fit’ the facts of the case.” Id.
The second and fourth requirements merely state that an expert’s testimony must be relevant.
- 27 -
See Miller v. Holzmann, 563 F.Supp.2d 54, 91-92 (D.D.C. 2008) (citing Daubert, 509 U.S.
at 591). If an expert distills a complicated subject into language a jury can understand, and
that subject is relevant, she can be admitted as a “teaching witness.” See id. at 94.
But “[t]estimony is irrelevant . . . when an expert offers a conclusion based on
assumptions unsupported by the facts of the case.” Rolls-Royce Corp. v. Heros, Inc., 2010
WL 184313, at *6 (N.D. Tex. Jan. 14, 2010) (Fitzwater, C.J.). An opinion is unhelpful to a
trier of fact if it attempts to apply a general observation about a larger group to particular
individuals whose conduct is in question. See Rowe Entm’t, Inc. v. William Morris Agency,
Inc., 2003 WL 22272587, at *7 (S.D.N.Y. Oct. 2, 2003) (holding that opinion about
discrimination in concert promotion industry was not relevant to issues in plaintiffs’ case
because case concerned conduct of booking agencies and promoters toward other promoters,
not the industry at large, and the evidence would only inject unfair prejudice). And where
“there is simply too great an analytical gap between the [basis for the expert opinion] and the
opinion proffered,” the court may exclude the testimony as unreliable. Gen. Elec. Co., 522
U.S. at 146.
3
Francis’ opinion that the grand jury’s return of a no bill means that the grand jury
concluded that there was no probable cause and that Grammer’s grand jury testimony “must
have been highly suspect, against the great weight of the evidence and common sense or
inconsistent with the truth,” D. 7/15/16 App. 23, is neither relevant nor reliable and is
excluded. As the court has explained above, to be admitted, Francis’ testimony must be
- 28 -
“more than subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590. Francis
opines that, in her experience, having a complaining witness testify on a contested family
violence case is unheard of. She then opines that “[t]he only reason that [she] can think of
where this live testimony would occur would be that the Grand Jury had significant concerns
about the truthfulness or credibility of the Complaining Witness.” D. 7/15/16 App. 22. But
her conclusion rests on pure speculation. Nor does she provide any basis for her opinion that
Grammer’s grand jury testimony lacked credibility, or that the grand jury’s return of a no bill
means that it concluded that the “low threshold of Probable Cause was NOT reached.” Id.
at 23. Because Francis was not privy to the secret grand jury proceedings in this case, any
conclusion she has reached about why the grand jury may have made a particular decision
is necessarily based on speculation. In other words, “there is simply too great an analytical
gap between the [basis for the expert opinion] and the opinion proffered.” Gen. Elec. Co.,
522 U.S. at 146.
Accordingly, the court grants Grammer’s motion to the extent of excluding Francis’
opinion that the grand jury had significant concerns about Grammer’s credibility, that the
grand jury concluded that Grammer’s testimony lacked credibility, or that the grand jury
returned a no bill because it found that there was no probable cause. Although the court is
excluding these parts of Francis’ proposed testimony, Charalambopoulos will be permitted
to call Francis as a rebuttal “teaching witness” about the grand jury process to offer
background information relevant to the claims in this case.
- 29 -
4
Alternatively, the court excludes Francis’ opinions that the grand jury had significant
concerns about Grammer’s credibility, that the grand jury concluded that Grammer’s
testimony lacked credibility, and that the grand jury returned a no bill because it found that
there was no probable cause, because it concludes that such expert testimony goes beyond
the proper role of an expert and invades the province of the jury.12
An expert may not offer opinions that simply reiterate what “the lawyers can offer in
argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992); see also In re Air Crash
Disaster at New Orleans, 795 F.2d 1230, 1233 (5th Cir. 1986) (“[T]he trial judge ought to
insist that a proffered expert bring to the jury more than the lawyers can offer in argument.”).
Nor should an expert be permitted to draw conclusions about another’s state of mind. See
United States ex rel. Ruscher v. Omnicare, Inc., 2015 WL 5178074, at *6, *11 (S.D. Tex.
Sept. 3, 2015) (an expert “will not be permitted to testify about . . . intent, motive, or state
of mind, as that is typically held to be within the province of the jury”); Estate of Davis v.
City of N. Richland Hills, 2007 WL 628090, at *3 (N.D. Tex. Feb. 28, 2007) (Means, J.)
(“While it may be reasonably inferred based on the evidence surrounding the shooting that
Hill was startled when he encountered Troy Davis and that he subsequently fired his gun on
12
Grammer contends that Francis’ testimony exceeds the proper role of an expert and
invades the province of the jury because she offers assessments of witness credibility (by
opining that Grammer’s grand jury testimony was not credible) and opinions on state of mind
(that the grand jurors found that Grammer was not credible and that probable cause did not
exist to pursue the case against Charalambopoulos). Charalambopoulos does not specifically
respond to this argument.
- 30 -
impulse, the Court concludes that Hueske’s expert opinion regarding Hill’s state of mind and
Hill’s action based on his state of mind crosses the line from assisting the jury in
understanding the evidence and determining a fact in issue to evading the province of the
jury.”). Consequently, “a trial court may strike expert testimony that evaluates a party’s state
of mind, as that evaluation is within the province of the jury.” Fisher v. Halliburton, 2009
WL 5216949, at *2 (S.D. Tex. Dec. 21, 2009).
Here, Francis opines about why the grand jury returned a no bill and what the grand
jurors “must have” concluded about Grammer’s credibility, and she speculates about why
Grammer was called to testify before the grand jury. None of these opinions, which
represent Francis’ speculation about the states of mind of the individual grand jurors, is the
proper subject of expert testimony. Accordingly, for this additional reason, Francis’ expert
opinions on these topics are excluded.13
C
1
Grammer contends that Francis is not qualified as an expert on grand jury decisionmaking in family violence cases: she was not among the prosecutors specifically tasked with
presenting cases to grand juries; on the few occasions when she did “present” to a grand jury,
13
Grammer contends that the court should exercise its inherent power to exclude
Francis’ testimony in order to protect the integrity of grand jury proceedings. Because the
court is excluding Francis’ opinions regarding Grammer’s credibility and the reasons why
the grand jury returned a no bill in Charalambopoulos’ criminal case, it need not decide
whether to exercise its inherent power to exclude Francis’ testimony.
- 31 -
she was merely called to aid the prosecutor; during Francis’ 15 months on the bench, she
empaneled only one grand jury and did not have significant contact with it after it was
empaneled; as criminal defense counsel, she could not appear before the grand jury; she has
not conducted any studies on grand juries or reviewed any relevant literature; she has never
presented a family violence case to a grand jury; she has not looked at statistics comparing
the frequency of no bills in family violence cases with other types of cases; she has not
spoken to the single prosecutor tasked with taking family violence cases to the grand jury in
Dallas; and she bases her opinion that family violence cases are handled more thoroughly in
grand jury proceedings than other types of cases on the fact that none of her family violence
clients has been no billed.
Charalambopoulos responds that Francis’ experience qualifies her as an expert to
render opinions about the grand jury process. He maintains that
Francis started her career as a prosecutor with the Dallas County
District Attorney’s Office in February 1995. During her ten
years with the Dallas County DA’s office, she handled
thousands of cases ranging from misdemeanor offenses to
capital murders and tried over a hundred felony cases. During
her tenure with the office, she was assigned to the Child Abuse
Division, Organized Crime Division, was the legislative liaison
for the office and was the felony chief prosecutor in Criminal
District Court #4 before being appointed by Governor Perry to
a criminal district bench in Dallas County in September 2005.
As presiding judge of Criminal District Court #7, Francis
presided over hundreds of felony cases. She handled pleas,
hearings, bench trials and jury trials during her time on the
bench.
In January 2007, Francis went back to the Dallas County
DA’s Office as an administrative chief. She was head of the
misdemeanor division where she supervised 35 assistant district
- 32 -
attorneys, 13 legal assistants, and 3 investigators. It was her
responsibility to train the new attorneys employed by the office.
She held this position until leaving the office in December 2010.
P. 8/25/16 Br. 3-4.
2
“Whether an individual is qualified to testify as an expert is a question of law.”
Rolls-Royce Corp., 2010 WL 184313, at *4 (quoting Huss, 571 F.3d at 452). “Under Rule
702 a witness can be qualified as an expert due to [her] knowledge, skill, experience,
training, or education.” Am. Tourmaline Fields v. Int’l Paper Co., 1999 WL 242690, at *2
n.5 (N.D. Tex. Apr. 19, 1999) (Fitzwater, J.). “Rule 702 does not mandate that an expert be
highly qualified in order to testify about a given issue. Differences in expertise bear chiefly
on the weight to be assigned to the testimony by the trier of fact, not its admissibility.” RollsRoyce Corp., 2010 WL 184313, at *4 (quoting Huss, 571 F.3d at 452).
The court concludes that Francis’ more than 20 years’ experience in the field of
criminal law—including as a prosecutor, defense attorney, and judge—renders her qualified
to opine on grand jury proceedings, in general. To the extent Grammer contends that Francis
is unqualified to testify as an expert regarding grand jury proceedings in family violence
cases, the court concludes that Grammer’s specific challenges go to the weight of Francis’
testimony, not its admissibility. “[Q]uestions relating to the bases and sources of an expert’s
opinion affect the weight to be assigned that opinion rather than its admissibility and should
be left for the [trier of fact’s] consideration.” Viterbo, 826 F.2d at 422. “Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden
- 33 -
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596. Any deficiencies in Francis’ conclusions as a result
of her lack of personal experience or failure to consider statistical or other evidence can be
attacked at trial through the same means. Accordingly, the court denies Grammer’s motion
to exclude Francis on the basis that she is unqualified.
D
Grammer contends that Francis’ testimony on both issues for which it is
proffered—the grand jury and attorney’s fees—is not proper rebuttal testimony and must be
excluded. Charalambopoulos has not responded to this ground of Grammer’s motion.
1
This court has previously stated that it “will often be helpful to answer . . . three
questions” in assessing whether proffered evidence is rebuttal evidence:
First, what evidence does the rebuttal expert purport to
contradict or rebut? Second, is the evidence disclosed as
rebuttal evidence on the same subject matter as that identified by
another party in its Rule 26(a)(2)(B) disclosure? Third, is the
evidence disclosed as rebuttal evidence intended solely to
contradict or rebut that evidence?
Wireless Agents, L.L.C. v. Sony Ericsson Mobile Commc’ns AB, 2006 WL 5127278, at *2
(N.D. Tex. May 31, 2006) (Fitzwater, J) (quoting Poly-Am., Inc. v. Serrot Int’l, Inc., 2002
WL 1996561, at *15 (N.D. Tex. Aug. 26, 2002) (Fitzwater, J.)). Accordingly, to determine
whether Francis is offering permissible rebuttal expert opinions, the court asks whether she
is purporting to contradict or rebut expert opinions offered by Grammer as to a claim or
- 34 -
defense as to which Grammer will have the burden of proof at trial; whether her evidence is
disclosed as rebuttal evidence on the same subject matter as that identified by Grammer in
her Rule 26(a)(2)(B) disclosure; and whether the evidence disclosed as rebuttal evidence is
intended solely to contradict or rebut that evidence. Id.
2
Grammer contends that Francis’ “rebuttal” testimony on attorney’s fees does not
purport to contradict or rebut any of Grammer’s evidence; that Francis conceded during her
deposition that her testimony on attorney’s fees is not rebuttal testimony, see D. 7/15/16 App.
68-69 (“Q. Now, first, you would agree in rendering this opinion you are not rebutting
anybody else’s opinion in this case that you’re aware of, correct? You have not been shown
anybody’s opinion about the quantum of fees that you are responding to or rebutting? A.
No. But I just figured since I was asked, there must have been some sort of dispute about
it.”); and that her testimony on attorney’s fees must therefore be excluded. The court agrees,
largely for the reasons on which Grammer relies in her motion, that Francis’ testimony on
attorney’s fees is not proper rebuttal testimony, and must therefore be excluded.
3
Grammer contends that Francis’ “rebuttal” testimony on the grand jury proceedings
fails the third question in Wireless Agents because she does not actually contradict or rebut
any of Secrest’s expert opinions. Grammer maintains that
- 35 -
Francis’s report concludes the grand jury returned a no bill
because the probable cause standard was not met. To do so, she
considers two case-specific factors: (1) the fact the allegations
involved family violence and (2) the fact Grammer provided live
testimony in a high profile case. Therefore, Francis’s testimony
delving into the facts of the case does not rebut, let alone “solely
. . . rebut,” Secrest’s testimony on the grand jury.
D. 7/15/16 Br. 24 (citations omitted).
The court has already excluded Francis’ opinions to the extent she opines on the grand
jurors’ states of mind or the reasons why the grand jury may have returned a no bill in
Charalambopoulos’ case. The court declines to further exclude Francis’ testimony on the
basis that it is not proper “rebuttal” testimony. Grammer has proffered Secrest to give the
jury general background information on grand jury proceedings.
To the extent
Charalambopoulos intends to use Francis to provide the jury in this case with further detail
on grand jury proceedings in order to paint a more complete picture, or to rebut any of
Secrest’s testimony, her testimony is properly admitted as rebuttal evidence.
E
Finally, Grammer contends that Charalambopoulos’ effort to re-designate Francis as
an affirmative expert is improper. She contends that, when Charalambopoulos filed his first
amended disclosure of expert testimony on May 16, 2016, he listed Francis as an expert
without indicating that she was a rebuttal expert, and without seeking leave of court or
conferring with Grammer’s counsel. Charalambopoulos has not responded to this argument.
Charalambopoulos has not moved to amend the Scheduling Order to permit him to
designate Francis as an affirmative expert. Nor does he address in his brief any of the four
- 36 -
factors that the court considers when deciding a motion to amend the scheduling order.
Accordingly, to the extent Charalambopoulos has attempted to make an untimely redesignation of Francis as an affirmative expert without seeking leave of court, the court
grants Grammer’s motion to strike Charalambopoulos’ re-designation of Francis as an
affirmative expert. Francis will only be permitted to provide rebuttal expert testimony at
trial.
VII
Grammer moves to strike the testimony and opinions of Collins, a “forensic expert”
who opines that “the alleged assault as depicted and described by Grammer did not occur and
Charalambopoulos is being truthful in his denial of assaulting Grammer.” P. 7/15/16 Br. 1
(quoting P. 7/15/16 App. 4).
A
1
Grammer contends that Collins’ report and testimony are not based on a reliable
methodology. She maintains that, because Collins merely looked at the “totality of the
evidence” to opine that Charalambopoulos did not assault Grammer, no meaningful
methodology supports Collins’ opinion; by identifying inconsistencies and then looking at
the “totality of the evidence” to determine whether a witness is being truthful or is lying,
Collins is doing nothing more than what a juror would do, i.e., weighing the evidence and
making credibility determinations; Collins’ analysis of the evidence of Grammer’s injuries
lacks a methodological foundation since she has not engaged in any expert analysis of the
- 37 -
medical records and, instead, merely parrots what she has found in Dr. Ramirez’s records;
Collins compares the evidence of injuries to Grammer’s head (largely testimonial) versus the
evidence of injuries to Grammer’s wrists (documented in photographs), which is something
a juror could do; Collins opines that the bruises on Grammer’s wrists are consistent with
those she sustained when she struck Charalambopoulos, but Collins provides no specific
medical or scientific evidence to support this conclusion; and Collins has not offered any
methodology underlying her decision whether and in what manner to give significant weight
to the Harris County grand jury’s decision to no bill Charalambopoulos.
Charalambopoulos responds that Collins’ opinions are the product of years of
education, training, experience as a federal investigator, and her work as a forensic
investigator; that an expert is entitled to reach opinions applying her experience to specific
facts; and that the principles and methodologies underlying Collins’ opinions include her
“training and experience conducting assault investigations, which includes but is not limited
to overall case management, crime scene investigations and documentation, evidence
identification and collection, chain of custody, interpretation and application of forensic
analysis results, and interviews.” P. 8/25/16 Br. 7 (quoting P. 8/25/16 App. 42-43).
Charalambopoulos contends that Collins’ training and experience conducting assault
investigations provide sufficient reasoning or methodology for her to rely on in forming her
opinions; that Collins applied her education, training, and experience to the facts in this case
to form reliable opinions about the cause of Grammer’s injuries [P. 8/25/16 Br.; that Collins
is entitled to base her opinions on a different version of the facts than that offered by
- 38 -
Grammer; and that Collins’ opinions about the alleged physical assault are reliable because
they are deductions based on what Collins knew and observed, not simply “speculative”
supposition. Finally, Charalambopoulos contends that the true substance of Grammer’s
complaint concerns the validity of the bases on which Collins’ opinions rest, but that
Grammer’s complaint goes to the weight, not the admissibility, of Collins’ testimony.
2
In deciding whether Collins used a reliable methodology in reaching her conclusions,
the court analyzes the internal logic of Collins’ method, “determin[ing] whether the
testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.’”
Kumho, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592) (second alteration in original).
Collins explains in her September 30, 2015 report (“Collins Report”) that her conclusion that
the Alleged Assault as depicted and described by Grammer did not occur is based on her
training, knowledge, and experience as a criminal investigator and forensic sciences
consultant. Her methodology, as demonstrated in the Collins Report, is to review the
evidence of the Alleged Assault and determine, based on her experience as a criminal
investigator and forensic sciences consultant, whether there are gaps or inconsistencies in the
evidence that would tend to undermine Grammer’s version of the events. The court
concludes that Collins’ methodology is sufficiently reliable.
To the extent Grammer challenges the specific conclusions reached in Collins’ Report,
“questions relating to the bases and sources of an expert’s opinion affect the weight to be
assigned that opinion rather than its admissibility and should be left for the [trier of fact’s]
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consideration.” Viterbo, 826 F.2d at 422. In other words, Grammer’s challenges to Collins’
failure to engage in an expert analysis of the medical records, failure to provide medical or
scientific evidence to support her conclusions about the bruises on Grammer’s wrists, and
failure to adequately explain why she gave significant weight to the grand jury’s return of
no bill, all go to the weight, not the admissibility, of Collins’ opinions.
B
1
Grammer next contends that Collins’ testimony usurps the role of the jury because
Collins’ opinion turns largely on the inconsistences between various witness statements,
which is something the jury can understand without expert testimony. Charalambopoulos
has not specifically responded to this argument.
2
The court disagrees that, in evaluating the large amount of evidence gathered in
connection with the investigation of the Alleged Assault and distilling this evidence into a
format that will be useful at trial, Collins has usurped the role of the jury. “[A]n expert can
be employed if [her] testimony will be helpful to the trier of fact in understanding evidence
that is simply difficult, [though] not beyond ordinary understanding.” Total Control, Inc. v.
Danaher Corp., 338 F.Supp.2d 566, 569 (E.D. Pa. 2004) (first and third alteration in original)
(citation omitted) (rejecting contention that financial analyst’s testimony should be excluded
because his damage calculations were based on simple arithmetic; and finding that expert’s
“ability to present a vast quantity of calculations derived from disparate sources in an
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understandable format will assist the jury”); see also Gen. Elec. Capital Bus. Asset Funding
Corp. v. S.A.S.E. Military Ltd., 2004 WL 5495588, at *5 (W.D. Tex. Oct. 6, 2004) (“Given
its complexity and cumbersome nature, Stich’s compilation of this information and
documentation into a presentable format is ‘helpful’ in that it will ‘assist the trier of fact to
understand the evidence or to determine a fact in issue.’ Further, Stich’s testimony will assist
the jury in extracting relevant information from the accounting documents given and will
facilitate its understanding of the evidence presented.”). Allowing Collins to sift through the
evidence gathered in connection with the criminal investigation of the Alleged Assault,
explain the relevant evidence to the jury in a format that it can more easily follow, and point
out, based on her experience as a criminal investigator and forensic sciences consultant, why
certain statements in the evidence are inconsistent with, or are not supported by, the physical
evidence, will not usurp the role of the jury. After the jurors hear Collins’ testimony, they
will be able to decide for themselves whether the inconsistencies in the evidence that Collins
points out are sufficient to support the conclusion that the Alleged Assault, as depicted by
Grammer, did or did not occur.
C
Grammer maintains that Collins’ opinion that Charalambopoulos is being truthful and
that Grammer is not is impermissible testimony and should be excluded.
In the Collins Report, Collins opines that “the alleged assault as depicted and
described by Grammer did not occur and Charalambopoulos is being truthful in his denial
of assaulting Grammer.” D. 7/15/16 App. 4. It is clearly established that expert testimony
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may not usurp the jury’s authority to make credibility determinations. See, e.g., Skidmore
v. Precision Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (stating that
“[c]redibility determinations, of course, fall within the jury’s province” in relation to a
challenge to expert testimony); Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 883 (8th Cir.
1998) (“Weighing evidence and determining credibility are tasks exclusive to the jury, and
an expert should not offer an opinion about the truthfulness of witness testimony.”);
Amin-Akbari v. City of Austin, Tex., 52 F.Supp.3d 830, 848 (W.D. Tex. 2014) (“It is for the
jury to assess credibility, not an expert.”); Johnson, 2014 WL 1714487, at *35 (noting that
“expert testimony about plaintiffs’ truthfulness or credibility could theoretically cross the line
into inadmissibility by, for example, invading the province of the jury.”). Collins’ opinion
that “Charalambopoulos is being truthful in his denial of assaulting Grammer” goes directly
to the question of Charalambopoulos’ credibility and must therefore be excluded.
Her opinion, however, that “the alleged assault as depicted and described by Grammer
did not occur” does not so clearly and specifically opine about Grammer’s credibility as to
warrant exclusion. For example, if in the trial of an automobile accident the defendant
testifies that she applied her brakes well before she entered the intersection, and the
plaintiff’s accident reconstruction expert testifies that the skid marks left by the defendant’s
car show that she did not apply her brakes until she was just about to enter the intersection,
the expert’s opinion may call into question the credibility of the defendant’s testimony, but
it is not an opinion about the defendant’s credibility. Were the court to hold otherwise,
expert opinions that had nothing to do with a witness’ credibility would be excludable on the
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basis that they enabled the jury to infer that the witness’ testimony was not credible.
Accordingly, the court excludes that portion of Collin’s expert opinion that
“Charalambopoulos is being truthful in his denial of assaulting Grammer,” and it declines
to exclude her opinion that “the alleged assault as depicted and described by Grammer did
not occur.”
D
Grammer moves to exclude Collins’ testimony on the basis that there is too great an
analytical gap between the evidence Collins has examined and the opinions she offers.
Grammer maintains that Collins makes several statements that are unsupported by the factual
record; Collins relies on “numerous inconsistencies between the various statements provided
by Grammer,” D. 7/15/16 Br. 15, as support for her conclusion that Charalambopoulos did
not assault Grammer, but, during her deposition, Collins explained that several of the
inconsistencies she identified in her report had no impact on her opinion; and there is too
great an analytical gap between the evidence as it stands after Collins’ deposition and the
opinions Collins proffers.
The court declines to exclude Collins’ testimony on the basis that there is too great
an analytical gap between the evidence she has examined and the opinions she proffers. To
the extent Grammer objects on the basis of Collins’ opinion that “Charalambopoulos is being
truthful in his denial of assaulting Grammer,” D. 7/15/16 App. 4, the court has already
excluded this opinion. Otherwise, her objections go to the weight, not the admissibility, of
this evidence.
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E
Finally, Grammer contends that Collins is not qualified to testify on grand jury results,
relationships, and normal sexual activity. She maintains that Collins’ reliance on the Harris
County grand jury’s decision to no bill Charalambopoulos is a purely legal question that does
not implicate Collins’ purported “scientific” expertise. Grammer posits that
Collins points to text messages expressing Grammer’s love and
appreciation for [Charalambopoulos], as well as
[Charalambopoulos’] allegations that he and Grammer engaged
in “consensual sexual contact several times during
[Charalambopoulos’] visit.” However, Collins conceded that
she is not qualified as an expert on how engaging in sexual
activity impacts or is impacted by relationship issues between
couples. Accordingly, to the extent Collins intends to opine
based on the text messages and sexual activity between
[Charalambopoulos] and Grammer, the court must exclude her
testimony for the additional reason that she lacks expert
qualifications to opine about them.
D. 7/15/16 Br. 18-19 (citations omitted).
Charalambopoulos responds that Collins is qualified as an expert in forensic science,
and he lists Collins’ qualifications, but he does not specifically respond to Grammer’s
argument that Collins is not qualified to testify on grand jury results or on how engaging in
sexual activity impacts or is impacted by relationship issues between couples. And during
her deposition, Collins conceded that she lacks education and training in grand jury practice
and grand jury law, and that she is not qualified to render an opinion on what would be
considered normal sexual contact between two people. Accordingly, because neither
Charalambopoulos nor Collins appears to maintain that Collins is qualified to render an
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expert opinion on these topics, the court grants Grammer’s motion to the extent of excluding
Collins’ testimony regarding the grand jury’s return of a no bill, Grammer’s text messages
expressing her love for Charalambopoulos, and the sexual activity between Grammer and
Charalambopoulos.
VIII
The court next considers Grammer’s motion to strike the expert testimony of
Browning.
A
Charalambopoulos has designated Browning, an attorney with experience “in the area
of social media and the law,” D. 7/15/16 App. 4, to testify on “the impact that statements
made online and particularly via social media can have on an individual’s reputation,” id. at
3. Grammer moves to exclude Browning on the basis that his testimony regarding “the mere
fact of damage” is not relevant because nominal damages are presumed in a defamation per
se case, and Browning is unable to testify on the degree of Charalambopoulos’ reputational
harm, D. 7/15/16 Br. 4; his testimony on damages components that Charalambopoulos has
omitted from his second amended complaint is not relevant; his “expert” statements amount
to nothing more than uncontroversial common knowledge; and Browning lacks the necessary
expertise to provide expert testimony on the effect online statements will have on
Charalambopoulos’ interpersonal relationships or ability to earn a living.
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B
The court concludes that Browning’s expert testimony is relevant. In his response to
Grammer’s motion, Charalambopoulos contends that Browning’s testimony is “relevant to
the damages Charalambopoulos and his reputation sustained as a result” of Grammer’s
conduct. P. 8/25/16 Br. 3. In his second amended complaint, Charalambopoulos alleges
claims for defamation and defamation per se. To recover on his defamation claim,
Charalambopoulos will have to prove the fact of damages. See Tex. Disposal Sys. Landfill,
Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App. 2007, pet. denied)
(“Statements that are defamatory per quod are actionable only upon allegation and proof of
damages. Thus, before a plaintiff can recover for defamation per quod, the plaintiff must
carry his burden of proof on both the existence of and amount of damages.” (citations
omitted)). And although Charalambopoulos can recover on his defamation per se claim
without specific proof of the existence of harm, see, e.g., Bentley v. Bunton, 94 S.W.3d 561,
604 (Tex. 2002) (“Our law presumes that statements that are defamatory per se injure the
victim’s reputation and entitle him to recover general damages, including damages for loss
of reputation and mental anguish.”), in order to recover more than nominal damages,
Charalambopoulos must prove the amount of his damages, see In re Lipsky, 460 S.W.3d 593
(Tex. 2015) (“[E]ven though Texas law presumes general damages when the defamation is
per se, it does not ‘presume any particular amount of damages beyond nominal damages.’”
(quoting Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam)).
Browning’s expert testimony regarding the effect that Grammer’s public statements
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have had on Charalambopoulos’ reputation will clearly be relevant to the jury’s finding of
damages in connection with Charalambopoulos’ defamation claim (assuming that
Charalambopoulos prevails on this claim at trial) and to the jury’s assessment of the amount
of damages in connection with Charalambopoulos’ claims for defamation and for defamation
per se.14 Browning’s failure to opine on the precise amount of damages Charalambopoulos
should be awarded does not render his opinion on the fact and extent of damages irrelevant.
C
Grammer contends that, to the extent Browning intends to testify regarding
components of Charalambopoulos’ damages that he omitted from his second amended
complaint (i.e., damage to future employment opportunities, damage to credibility amongst
clients and business associates, economic damages sustained in past and future, and loss of
future earning capacity), this testimony is irrelevant, and Charalambopoulos “should not be
permitted to bring in evidence through the back door, under the auspices of Browning’s
expert testimony, on these now-abandoned components of his damages claim.” D. 7/15/16
Br. 6. Charalambopoulos has not responded to this argument.
The court agrees that Charalambopoulos cannot use Browning’s expert testimony to
recover damages that he has omitted from his second amended complaint and no longer
seeks. Accordingly, to the extent that Charalambopoulos intends to offer Browning’s expert
14
To the extent Grammer criticizes Browning’s failure to conduct a survey or any
interviews, and his failure to assess Charalambopoulos’ reputation prior to the Alleged
Assault and any related online postings, Grammer’s objection goes to the weight, not the
admissibility, of the evidence.
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testimony at trial on a matter that is only relevant to an element of damages that has been
dropped, and not otherwise relevant, the court excludes the testimony.
D
Grammer contends that Browning’s testimony will not assist the jury because it
concerns matters of common knowledge. She maintains that Browning’s expert report
“overflows with ‘expert’ statements that amount to no more than uncontroversial common
knowledge,” D. 7/15/16 Br. 8; that Browning offers no explanations as to how or why a lay
juror cannot evaluate whether, or the degree to which, a statement circulated to 198,000
Twitter followers has the potential to cause reputational damage; that jurors can determine
for themselves whether stories about domestic violence will harm the alleged batterer’s
reputation, without an expert on social media and the law telling them so; that Browning’s
discussion of specific articles and the number of social media followers is nothing more than
fact testimony masquerading as expert testimony; that running a basic Google name search
does not require any specialized background, so presenting evidence on the results of such
a search does not require expert testimony; and that Browning’s testimony that online
information about the attack will hurt Charalambopoulos’ job prospects, future business
relationships, and interpersonal relationships falls within the common knowledge of the
jurors. Grammer contends that, “[i]n sum, although Browning’s testimony has the veneer
of his purported expertise in ‘social media,’ an average juror can readily understand the
potential reputational harms arising from the alleged defamatory social-media postings.” Id.
at 11.
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As a general matter, expert testimony is not needed when issues are within the
common knowledge of the jury. Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962). And to
the extent Browning intends to offer expert testimony that “the online publicity surrounding
the false accusations of domestic violence against [Charalambopoulos], much of it
engineered, instigated, or at least encouraged by [Grammer] via social media has had a
devastating and potentially crippling effect on the reputation of [Charalambopoulos],” D.
7/15/16 App. 5, “the subject of [Browning]’s testimony does not appear to be the type that
would require expert testimony.” Saadi v. Maroun, 2009 WL 3028312, at *1 (M.D. Fla.
Sept. 17, 2009). But although some (if not most) jurors will have at least a basic
understanding of social media and the potential impact a statement on social media can have
on a person’s reputation, the use of Twitter and other forms of social media (and the
potentially far-reaching impact of statements disseminated through these means) is not so
widespread that the court can say that Browning’s expert testimony will not “help the trier
of fact to understand the evidence or to determine a fact in issue.”15 Rule 702. Accordingly,
the court declines to exclude Browning’s testimony on the basis that his expert report
contains matters that are of common knowledge.
15
For example, even if jurors are generally familiar with running a Google search, they
probably do not know the types of results that are returned when a Google search of the name
“Dimitri Charalambopoulos” is performed.
- 49 -
E
Finally, Grammer contends that because Browning has no experience or knowledge
regarding the due diligence performed before hiring employees or forming business
relationships, and because he is not an expert on interpersonal relationships, he is not
qualified to provide expert testimony on these topics. Charalambopoulos responds by listing
five articles that Browning has authored regarding social media and the law. He contends
that Browning
has also conducted countless presentations on social media and
its relationship to the law. As the author of [numerous] articles
and the leading book on social media’s impact on the law,
Browning is frequently sought out by national and international
media on the subject. He has appeared on television, radio,
podcasts and webinars discussing social networking. By virtue
of his education, training, and experience, Browning is qualified
as an expert to render opinions in the area of forensic pathology.
P. 8/25/16 Br. 4.
Although, as the court has noted above, “Rule 702 does not mandate that an expert
be highly qualified in order to testify about a given issue,” Rolls-Royce Corp., 2010 WL
184313, at *4 (quoting Huss, 571 F.3d at 452), a proffered expert must nonetheless be
qualified based on his knowledge, skill, experience, training, or education. Browning does
not appear to have any expertise or personal knowledge that would enable him to testify
regarding “the due diligence performed before hiring employees or forming business
relationships,” D. 7/15/16 Br. 11. And Browning conceded during his deposition that he is
not an expert on interpersonal relationships. See D. 7/15/16 App. 58. Accordingly, the court
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concludes that Browning is not qualified to offer expert testimony on the effect online
statements will have on Charalambopoulos’ interpersonal relationships or his ability to earn
a living.
F
The court grants in part Grammer’s Daubert motion with respect to Browning.
Browning will not be permitted to testify regarding the effect online statements will have on
Charalambopoulos’ interpersonal relationships or his ability to earn a living. But the
remaining parts of Browning’s expert report and testimony are not subject to exclusion under
Daubert.
IX
Grammer moves to strike the expert report of Dr. Gruszecki, a forensic pathologist.
In support of this motion, Grammer contends that Dr. Gruszecki’s testimony is unreliable
because, based on her own opinions, she has testified that the quality of the photographs she
reviewed makes it impossible for her to determine the extent of, and even the existence of,
any injuries to Grammer; she fails to take any of Grammer’s relevant personal characteristics
into account in rendering her opinion; and her opinion that the bruising to Grammer’s wrists
could have been caused by the placement of an IV rests on an unsupported assumption and
is therefore inadmissible under established law.
The court declines to exclude Dr. Gruszecki’s opinion based on the poor quality of
the photographs she reviewed, her failure to take any of Grammer’s personal characteristics
into account in rendering her opinion, or her assumption that an IV or venipuncture was
- 51 -
placed on the anterior aspect of either of Grammer’s arms. “[Q]uestions relating to the bases
and sources of an expert’s opinion affect the weight to be assigned that opinion rather than
its admissibility and should be left for the [trier of fact’s] consideration.” Viterbo, 826 F.2d
at 422. “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, 509 U.S. at 596. Any deficiencies in Dr.
Gruszecki’s conclusions as a result of the quality of evidence she considered, her failure to
consider other evidence in the record, or her reliance on false assumptions can be attacked
at trial through the same means.
For example, Grammer can demonstrate through
cross-examination and her own evidence the poor quality of the photographs on which Dr.
Gruszecki relied, Dr. Gruszecki’s failure to take Grammer’s relevant personal characteristics
into account, and the lack of evidence that an IV or venipuncture was placed on the anterior
aspect of either of Grammer’s arms. Accordingly, the court denies Grammer’s motion to
exclude Dr. Gruszecki.
*
*
*
For the reasons explained, Grammer’s motion to partially modify scheduling order to
permit her to re-designate Holden as an expert in her case-in-chief is granted on the
condition that she permits Charalambopoulos to take Holden’s deposition; Grammer’s
motion for bifurcated trial of exemplary damages is granted; Grammer’s motion to strike
Charalambopoulos’ designation of Dr. Ramirez is granted; Grammer’s motion to strike
Francis is granted in part and denied in part, and her motion to strike re-designation of
- 52 -
Francis as an affirmative expert is granted; Grammer’s motion to strike Charalambopoulos’
expert Collins is granted in part and denied in part; Grammer’s motion to strike
Charalambopoulos’ expert Browning is granted in part and denied in part; and Grammer’s
motion to strike Charalambopoulos’ expert Dr. Gruszecki is denied.
SO ORDERED.
March 8, 2017.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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