United States District Court, D. Montana, Billings Division
P. WATTERS United States District Judge
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.
factual underpinnings of the case, see the Court's order
denying the Defendants' five motions to dismiss the
indictment. (Doc. 80).
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.
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
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).
government argues portions of the expert testimony of Albert
Calkin and Tom Richmond should be excluded or limited.
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.
The legal obligation placed on Defendants
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 ...