Free Order on Motion to Strike - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Value Options, Inc., Defendants. Shannon Michael Clark, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03-1344-PHX-EHC (MS) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the Court is Defendant ValueOptions' Motion to Strike Affidavit of Michael Robinson, LCSW (Doc. # 163) and Plaintiff's response thereto (Doc. # 171). Defendant seeks to strike the Robinson Affidavit as both unreliable and unrelated to scientific knowledge, as required by FED. R. EVID. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 580 (1993). In addition,

Defendant argues that the affidavit is untimely filed, as discovery ended on November 18, 2004. Plaintiff responds that he is not bound by initial disclosure requirements under Fed. R. Civ. P. 26(a), and therefore the affidavit is not untimely. The Robinson Affidavit on its face represents itself as an expert witness affidavit. As a result, the affidavit's opinions and conclusions must comport with Rule 702, which requires that [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
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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. FED. R. EVID. 702. As a result, the Court must assess the reliability and helpfulness of the proffered expert testimony. Moreover, the admissibility of all expert testimony is governed by the principles of Rule 104(a), which requires the proponent of the evidence to establish that the pertinent admissibility requirements are met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 176 (1987). The Robinson Affidavit offers opinions regarding Defendant ValueOptions' procedure and methods for administering mental health or substance abuse treatment services. Moreover, the affiant offers opinions as to Plaintiff's "mental health history relating to his mental health status, level of functioning in the community, occupational and educational background and other psychosocial impairments/symptoms based upon written documents and records [reviewed by affiant]," and how Plaintiff would have benefitted from ValueOptions' services. The affidavit clearly offers scientific opinions as to Plaintiff's mental condition, how ValueOptions' services would have benefitted Plaintiff, and ValueOptions' use of clinical methods to determine whether a prospective patient is eligible for services. As a consequence, the Court must make a determination to ensure the proffered testimony is both scientifically obtained and relevant to a fact in issue. See Daubert, 509 U.S. at 590­91. As required by Daubert, when [f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
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Daubert, 509 U.S. at 592. The Court must ensure that Robinson arrived at his conclusion using scientific methods and procedures, and that his conclusions are not the product of subjective beliefs or unsupported speculation. See Id. at 590; see also Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 502 (1994). The Robinson Affidavit does not offer any explanation or reasoning behind the conclusions it draws. It is evident from reading the affidavit that the affiant expects to testify at trial, and therefore the affidavit need not expound upon the issues, save to offer conclusions. There is no discussion regarding Plaintiff's mental condition and how he would have specifically benefitted from Defendant's services. Nor is there any discussion regarding Defendant's diagnostic practices and how they failed in this case. As a consequence, because of the affidavit's failure to offer any scientific basis for his opinions, the affidavit will be stricken. Moreover, this affidavit comes well after the discovery deadline in this case.1 While Plaintiff correctly notes that he is not bound by initial disclosure requirements found in FED. R. CIV. P. 26(a)(1), that does not absolve him of all discovery requirements in this case. That said, the Court will allow Plaintiff an opportunity to resubmit Robinson's affidavit within 30 days of the filing of this Order, with the requirement that it comports with the requirements of FED. R. EVID. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), specifically that the opinions offered be "ground[ed] in the methods and procedures of science," and not simply "subjective belief or unsupported speculation." Id. at 590. Accordingly,

This Court noted in its October 27, 2005 Order denying Plaintiff's motion to reopen discovery that the discovery deadline in this case was November 18, 2004 (Doc. # 157). This was an error, the discovery deadline was actually October 19, 2004, one month before. (Doc. # 37).
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IT IS ORDERED THAT Defendant's Motion to Strike (Doc. # 163) is GRANTED without prejudice. The Robinson Affidavit is stricken with leave to refile in strict conformity with the requirements of this Order.

DATED this 28th day of November, 2005.

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