United States Fidelity and Guaranty Company v. United States Sports Specialty Association

Filing 318

MEMORANDUM DECISION denying 302 Motion in Limine to Exclude Testimony of DefendantsExpert Robert Wallace and for a Daubert Hearing. Signed by Judge Ted Stewart on 2/4/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

NATIONAL INDEMNITY COMPANY and
Certain Underwriters at LLOYD’S OF
LONDON who subscribed to policy numbers
D064L0074 and D064Y00423, as subrogees
of and on behalf of UNITED STATES
FIDELITY AND GUARANTEE CO., and as
subrogee of, and on behalf of UNITED
STATES SPORTS SPECIALTY
ASSOCIATION,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION IN LIMINE TO EXCLUDE
DEFENDANTS’ EXPERT ROBERT
WALLACE AND FOR A DAUBERT
HEARING

Plaintiffs,

vs.

Case No. 2:07-CV-996 TS

NELSON, CHIPMAN & BURT, and
CLIFFORD PAYNE,
Defendants.

This matter is before the Court on Plaintiffs’ Motion in Limine to Exclude Testimony of
Defendants’ Expert Robert Wallace and for a Daubert Hearing.1 For the reasons discussed more
fully below, the Court will deny Plaintiffs’ Motion.

1

Docket No. 302.
1

I. BACKGROUND
In this action, Plaintiffs assert that Defendants Nelson, Chipman, & Burt (“NCB”)
breached the standard of care owed in their capacity as attorneys for United States Sports
Specialty Association and United States Fidelity and Guarantee Company. In anticipation of
trial, both parties have retained experts to testify as to the standard of care owed by NCB.
Through this Motion, Plaintiffs seek to exclude Defendants’ expert on this topic, Robert Wallace,
from testifying at trial. More specifically, Plaintiffs request that the Court hold a Daubert
hearing at the time Defendants call Mr. Wallace to address and exclude Mr. Wallace’s opinions.
II. STANDARD
Fed.R.Evid. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals Inc.2 and Kumho Tire Co., Ltd. v.
Carmichael,3 the Supreme Court interpreted the requirements of Rule 702. “Daubert requires a
trial judge to ‘ensure that any and all scientific testimony or evidence admitted is not only

2

509 U.S. 579 (1993).

3

526 U.S. 137 (1999).
2

relevant, but reliable.’”4 “In applying Rule 702, the trial court has the responsibility of acting as
a gatekeeper.”5
“The trial court has the discretion to determine how to perform its gatekeeping function.”6
This discretion includes reaching a determination of whether a Daubert hearing is required.7
“[T]he court’s gatekeeping role is necessarily different” if the case is tried by the court as
opposed to a jury.8 “Where the gatekeeper and the fact[-]finder are one and the same—that is,
the judge—the need to make such decisions prior to hearing the testimony is lessened.”9
III. DISCUSSION
Plaintiffs argue that Mr. Wallace’s testimony is improper on two grounds. Plaintiffs
argue that (1) Mr. Wallace is not qualified as an expert and (2) his opinions are not reliable.
A.

QUALIFICATIONS
Plaintiffs first assert that Mr. Wallace is not qualified to testify in this matter because he

lacks necessary experience. Plaintiffs take issue with the fact that Mr. Wallace has: (1) “never
been an insurance adjuster or even worked for an insurance company;” (2) “has never been a

4

Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000)
(quoting Daubert, 509 U.S. at 589).
5

In re Breast Implant Litig., 11 F. Supp. 2d 1217, 1222 (D. Colo. 1998).

6

Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1031 (10th Cir. 2007).

7

Id.

8

In re Salem, 465 F.3d 767, 777 (7th Cir. 2006).

9

Id.
3

CEO or even run a business outside of his law practice;” (3) “has never been a general counsel;”
and (4) “has only cursory experience trying cases in Utah County.”10
The Court is not persuaded that Mr. Wallace’s lack of experience in the specific roles or
fields noted by Plaintiffs necessitates a finding that Mr. Wallace is unqualified to testify in this
matter. As Defendants note, Mr. Wallace has over 40 years of experience trying cases to Utah
juries. Mr. Wallace has also tried cases to juries in Utah County. Furthermore, 70–75 percent of
Mr. Wallace’s work involved the defense of personal injury cases and, in 90–95 percent of his
civil work, Mr. Wallace was retained by insurers.
Based on this experience and that provided in his curriculum vitae, the Court finds that
Mr. Wallace is qualified to provide expert testimony in this case.
B.

RELIABILITY
Plaintiffs next assert that Mr. Wallace’s opinions are not reliable because Mr. Wallace

admitted in his deposition that he could not explain a methodology for his opinions. Defendants
contend that “Mr. Wallace did not make any such statement at his deposition.”11
The Court is persuaded that this case is not a case in which Mr. Wallace could have
reached his opinions only after performing exacting scientific experiments. Rather, the expert
witnesses in this case may give their opinions after evaluating the underlying case based on the
applicable standard of care. Each expert’s experience provides the method of evaluation. That
being said, the Court finds that Mr. Wallace’s testimony is the product of reliable principles and
methods, and will deny Plaintiffs’ Motion on this grounds.

10

Docket No. 302, at 7.

11

Docket No. 313, at 6 n.1.
4

Finally, to the extent Plaintiffs feel that Mr. Wallace’s opinions fail to take into account
necessary facts or are the result of only cursory research, these shortcomings in Mr. Wallace’s
opinions are best addressed on cross-examination.12
IV. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion in Limine to Exclude Testimony of Defendants’
Expert Robert Wallace and for a Daubert Hearing (Docket No. 302) is DENIED.
DATED February 4, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

12

See Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 994 (10th Cir. 2003)
(holding that “[v]igorous 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”).
5