Opinion
Civil Action No. 99-2496 (GK).
September 15, 2004
MEMORANDUM OPINION
This matter is before the Court on the Government's Motion in Limine to Exclude the Testimony of Joseph Mulholland, Ph.D., at Trial ("Motion"). Upon consideration of the Motion, Joint Defendants' Opposition, the Reply, applicable case law, and the entire record herein, the Court concludes that the Motion should be granted in part and denied in part.
Dr. Mulholland has been an economist in the Bureau of Economics at the Federal Trade Commission ("FTC") for over 35 years. He was designated as a witness on behalf of the FTC pursuant to Federal Rule of Civil Procedure 30(b)(6). Motion, at 2. Among other topics, Joint Defendants intend to offer Dr. Mulholland as a fact witness regarding: (1) his employment and duties at the FTC; (2) FTC actions and policies concerning cigarette advertising and consumer demand; (3) his analyses of cigarette advertising and consumer demand; and (4) his evaluations of tobacco product innovations and technologies. See id. at 2-3.
The Government argues that Dr. Mulholland's purported fact witness testimony concerning his research is actually improper expert opinion testimony and should be excluded under Federal Rules of Evidence 701 and 702. See id. at 3. As an example, the Government notes that Defendants cite repeatedly to the opinions and conclusions expressed by Dr. Mulholland in four research papers which he authored but which were never published or subject to peer review. Id. at 5. In their Opposition, Joint Defendants argue that Dr. Mulholland's testimony is based on his personal knowledge arising from his research, analyses, and experiences and is therefore admissible as lay testimony under Rule 701. See Defs.' Opp'n., at 7.
The Advisory Committee Notes emphasize that the 2000 Amendment to Rule 701 "makes clear that any part of a witness' testimony that is based on scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure requirements of the Civil and Criminal Rules." Fed.R.Evid. 701 Adv. Comm. Notes.
In order to achieve that result, and to avoid a blurring of the line between expert and fact witnesses, subsection (c) was added so that Rule 701, in its entirety, now reads as follows:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Rule 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.
Fed.R.Evid. 702.
The Advisory Committee Notes to Rule 701 further emphasize, as did DIJO, Inc. v. Hilton Hotel Corp., 351 F.2d 679, 685-86 (5th Cir. 2003), that the 2000 Amendment was an attempt "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." Fed.R.Evid. 701 Adv. Comm. Notes.
Moreover, "[b]y channeling testimony that is actually expert testimony to Rule 702, the amendment also ensures that a party will not evade the expert disclosure requirements set forth in Fed.R.Civ.P. 26 . . . by simply calling an expert witness in the guise of a layperson." Fed.R.Evid. 701 Adv. Comm. Notes ("any part of a witness' testimony that is based on scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure requirements of the Civil and Criminal Rules"); see also Mueller Kirkpatrick, Federal Evidence § 347 (2d ed. Supp. July 2003).
Dr. Mulholland's analyses of cigarette advertising and consumer demand are precisely the type of evidence that the 2000 Amendment was intended to preclude. Dr. Mulholland's opinions and conclusions reached in his four unpublished research papers, particularly the effect of advertising on smoking and role of the FTC in regulating such conduct, are not "rationally based" on his perceptions as contemplated by Rule 701; rather, they are based on a review of technical, econometric data and his specialized knowledge as an economist. No such analyses could have been done without resting on a foundation of the kind of scientific, technical or specialized knowledge encompassed by Rule 702. See Gomez v. Rodriguez, 344 F.3d 103, 113-114 (1st Cir. 2003). Testimony cannot be characterized as Rule 701 lay witness opinion if it is based on expertise and specialized knowledge and involves conclusions which could not have been reached by an ordinary lay person without such expertise and knowledge. Accordingly, the Court concludes that certain of Dr. Mulholland's opinions clearly constitute impermissible expert testimony by a lay witness. See United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) ("the mere percipience of a witness to the facts on which he wishes to tender an opinion does not trump Rule 702").
Defendants rely heavily on the holding in West Tennessee Ch. of Assoc. Builders v. City of Memphis, 219 F.R.D. 587 (W.D. Tenn. 2004). Because that opinion does not seem to take into account the 2000 Amendment to Rule 701, the Court does not find its analysis persuasive.
The eight opinions specifically bulleted on pp. 7-8 of the Motion are the type of expert testimony precluded by this Order. Accordingly, Dr. Mulholland may not offer these opinions at trial.
In addition, Federal Rule of Civil Procedure 26(a)(2)(B) requires a party to disclose the identity, reports and materials of its expert witnesses as directed by the court. In Order #65, the Court directed the parties to make such disclosures no later than February 1, 2002. Joint Defendants did not identify Dr. Mulholland as an expert witness and did not serve the requisite expert report. Accordingly, under Federal Rule of Civil Procedure 37(c)(1), Dr. Mulholland's expert opinions, many of which are contained in the four research papers, must be excluded at trial.
While Joint Defendants cannot offer the expert opinions contained in the four research papers as evidence of their truth, Dr. Mulholland is a proper fact witness regarding his personal duties, observations, and experiences at the FTC. Thus, Dr. Mulholland may testify about his "personal role in the unfolding of the events at issue," so long as the questioning "seeks only to elicit knowledge of those events." Gomez, supra, 347 F.3d at 113-14.
For all the foregoing reasons, the Government's Motion to exclude the testimony of Joseph Mulholland, Ph.D., is granted in part and denied in part.
An Order will accompany this opinion.