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Unitec States v. Woody's Trucking LLC

United States District Court, D. Montana, Billings Division

April 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WOODY'S TRUCKING, LLC, and DONALD E. WOOD, JR., Defendants.

          ORDER

          SUSAN P. WATTERS United States District Judge

         Before the Court is the government's motion to exclude or limit the testimony of two experts retained by the Defendant. (Docs. 86). For the following reasons, the Court grants in part and denies in part the motion.

         I. Background

         For the factual underpinnings of the case, see the Court's order denying the Defendants' five motions to dismiss the indictment. (Doc. 80).

         II. Standard

         Federal Rule of Evidence 702 allows a qualified expert to testify "in the form of an opinion or otherwise" where: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         Expert testimony is admissible under Rule 702 if it is both relevant and reliable. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). "[R]elevance means that the evidence will assist the trier of fact to understand or determine a fact in issue." Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007); see also Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) ("The requirement that the opinion testimony assist the trier of fact goes primarily to relevance.") (quotation omitted). Under the reliability requirement, the expert testimony must "ha[ve] a reliable basis in the knowledge and experience of the relevant discipline." Primiano, 598 F.3d at 565. To ensure reliability, the Court "assess[es] the [expert's] reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance." Id. at 564.

         "Expert testimony is properly admissible when it serves to assist the trier of fact to understand the evidence or determine a fact in issue." United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993); Fed.R.Evid. 702(a). Federal Rule of Evidence 704(a) clarifies that "[a]n opinion is not objectionable just because it embraces an ultimate issue." "That said, an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Similarly, instructing the jury as to the applicable law is the distinct and exclusive province of the court." Hangarter v. Provident Life &Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citations and quotations omitted) (emphasis in original). "It is the district court-not an expert witness-that instructs the jury on what the law is." United States v. Robertson, 875 F.3d 1281, 1294 (9th Cir. 2017) (citing Weitzenhoff, 35 F.3d at 1287).

         III. Discussion

         The government argues portions of the expert testimony of Albert Calkin and Tom Richmond should be excluded or limited.

         1. Calkin

         The government argues three specific portions of Calkin's testimony are inadmissible. First, the government argues Calkin misrepresents the legal obligation placed on the Defendants. Second, the government argues Calkin misleadingly relies on some documents but not others to form his opinion that the Defendants reasonably relied on the shipper's representations. Third, the government argues Calkin offers an inadmissible opinion on the Defendants' mental state.

         A. The legal obligation placed on Defendants

         Calkin opines that shippers have the responsibility to determine if the material being offered for transportation is hazardous and that it would have been a violation of the law for the Defendants to place placards on a vehicle unless the shipper had determined the material to be shipped was hazardous. (Doc. 87-1 at 2-5). The government contends Calkin's testimony is an erroneous statement of the Hazardous Material Transportation Act (Hazmat) and accompanying regulations. The Defendants respond that ...


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