Opinion
Case No. 2:01CV0490 DB
May 30, 2003
ORDER
Before the Court are defendant's motion to (1) strike expert report and exclude testimony of plaintiff Scott Whatcott, (2) compel discovery and for appropriate sanctions and (3) amend the scheduling order. Having considered the parties' briefs and the applicable law, the Court issues the following Order.
I. BACKGROUND
Plaintiff was prosecuted and convicted of violating Provo City Revised Ordinance 9/76-9-201. He was sentenced to ten days in jail. Plaintiff subsequently filed an appeal challenging the constitutionality of the ordinance. The Utah Court of Appeals agreed with plaintiff and held that the ordinance was unconstitutional both facially and as applied to plaintiff.
Shortly after the Utah Court of Appeals made its ruling, plaintiff claims that he was dismissed from the law firm where he was temporarily employed. According to plaintiff, the law firm cited the court's opinion as its reason for his dismissal.
Plaintiff then brought this suit pursuant to 42 U.S.C. § 1983. Plaintiff argues that defendant deprived him of his constitutional rights under the First and Fourteenth Amendments to the United States Constitution by prosecuting him on the basis of an unconstitutional ordinance. This Court found that defendant had indeed deprived plaintiff of his constitutional rights and granted plaintiff's motion for partial summary judgment on August 21, 2002. Accordingly, the only issue remaining before this Court is the amount of damages, if any, that were proximately caused by the constitutional infringement. Primarily at issue, is whether or not defendant's conduct prevented plaintiff from obtaining his desired employment after graduating from law school.
II. MOTION TO STRIKE EXPORT REPORT AND EXCLUDE TESTIMONY
The admissibility of expert testimony is governed by the rules of evidence. Federal Rule of Evidence 702 states:
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.
Defendant first argues that plaintiff's expert report is inadmissible because plaintiff does not possess the training, education, experience or knowledge necessary to qualify him as an expert in the area of law school placement. Plaintiff, however, argues that he is qualified to testify as an expert based on his experience as part-time employee of the Georgetown University Law Center Office of Career Services. Plaintiff worked in that capacity from the summer of 1999 to spring of 2001. His duties included among others: (1) coordinating student and alumni recruitment programs, (2) advising students and alumni on resume and cover letter writing, interviewing techniques, and job search strategies and (3) developing effective relationships with law firms, corporations, government agencies and other prospective employees.
As explained in Rule 702, a person may qualify as an expert based solely on experience or training. Therefore, regardless of a lack of formal education or instruction, the pertinent question remains whether the potential expert has "some type of specialized understanding of the subject involved in the dispute." FED. R. EVID. 702, advisory committee's note ( quoting Ladd, Expert Testimony, 5 VAND. L. REV. 414, 418 (1952)).
The issues remaining in this case revolve around the question of whether defendant's prosecution and conviction of plaintiff prevented him from obtaining employment with a large law firm. Although the Court acknowledges that his time as an employee was relatively brief, the Court finds that plaintiff's experience in the career services office of a nationally recognized law school is enough to qualify plaintiff as an exert about the placement of law school students and graduates at that university. Plaintiff's experience in that capacity has undoubtedly provided him with at least some degree of specialized understanding in that area.
Next, defendant argues that plaintiff's proposed expert testimony is unhelpful and should be excluded. Rule 702 requires that the expert's testimony "assist the trier of fact." FED. R. EVID. 702. Plaintiff's proposed testimony does not meet this requirement because it fails to provide any insight into the remaining issues in this case.
Federal Rule of Civil Procedure 26(2)(B) requires an expert to submit a report "contain[ing] a complete statement of all opinions to be expressed. . . ." In response to this mandate, plaintiff's expert report — in its totality — says, "[a]s stated above, I concur in both the reasoning and opinions expressed in the expert reports submitted by attorney James Fox and Career Services Director, Carol Allemeir, and hereby adopt the same in haec verba."
James Fox and Carol Allemeier have been retained by plaintiff to testify as experts in this case.
Based on plaintiff's own description of his proposed testimony, it is clear that his testimony would not assist the trier of fact in this case. Plaintiff cannot simply testify as an expert by restating the opinions and conclusions of other experts. Instead, an expert's testimony must provide insight and understanding about the facts and issues of the case. Plaintiff's description of his own proposed testimony, however, does not even purport to contain information that would assist the jury in this case. Instead, by plaintiff's own admission, his testimony would simply restate those opinions and conclusions adopted by Mr. Fox and Ms. Allemeier.
Furthermore, although an expert is entitled to rely on the opinion of other experts in formulating his own opinion, an opinion that provides no additional insight runs afoul of Rule 403 of the Federal Rules of Evidence by causing "undue delay," a "waste of time" and "needless presentation of cumulative evidence." FED. R. EVID. 403. Therefore, because plaintiff's testimony would not be of any assistance to the finder of fact and because his testimony would be cumulative of other evidence, plaintiff's proposed testimony is contrary to the Federal Rules of Evidence. Defendant's motion to strike the expert report of Scott Whatcott and to exclude Mr. Whatcott from testifying as an expert at trial is GRANTED.
III. MOTION TO COMPEL
Defendant also asks this Court to compel plaintiff to honestly and completely respond to defendant's First Set of Interrogatories and Request for Production of Documents. Plaintiff objects to a number of defendant's interrogatories on the ground that the questions are irrelevant and inapplicable based on the procedural posture and theories of liability in this case.
At the outset, plaintiff, who is now pro se, argues that defendant's motion to compel should be denied because they failed to meet and confer with plaintiff before filing their motion. However defendant asserts that they did meet and confer about this matter with plaintiff's attorney before he withdrew. Based on that representation, plaintiff's assertion that the motion should not be considered is incorrect.
Federal Rule of Civil Procedure 26(b)(1) states:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
This rule should not be narrowly circumscribed, Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995), but should be construed to embody the rationale that "discovery . . . is designed to help define and clarify the issues." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Notwithstanding these clear explanations of the limits of the discovery, plaintiff argues that many of defendant's interrogatories exceed these limitations because they seek information related to defenses that are irrelevant to plaintiff's § 1983 claim.
A. Interrogatories 4, 6, 8, 11, 13, and 20.
Plaintiff argues that interrogatories 4, 6, 8, 11, 13 and 20 are irrelevant because (1) they seek information about plaintiff's comparative or contributory fault, (2) they seek information regarding whether defendant's conduct was the sole proximate cause of plaintiff's injuries, and (3) they seek information about plaintiff's status prior to being wrongfully prosecuted. In each case, plaintiff argues that the information sought by these interrogatories is irrelevant to the issues in this case and therefore, that defendant's motion to compel should be denied.
Plaintiff correctly argues that state comparative fault statutes are not applicable to civil rights actions. Board of Regents v. Tomanio, 446 U.S. 478, 489 (1980). However, the interrogatories to which plaintiff objects are not limited solely to information regarding the comparative fault of plaintiff. Instead, the information sought by defendant is also relevant to two questions relevant to this case: first, to what extent, if any, was defendant's conduct the proximate cause of plaintiff's injuries, and second, if the answer is yes, what are the extent of plaintiff's injuries. See Dill v. City of Edmond, 155 F.3d 1193, 1209 (10th Cir. 1998) (explaining that a constitutional violation automatically entitles a plaintiff to nominal damages, but that no compensatory damages may be awarded if the injuries were not caused by the constitutional violation).
Plaintiff however, would have the Court read Rule 26 to bar interrogatories that require the disclosure of information that could be used in an irrelevant, inadmissible way. Rule 26, and the courts' liberal reading of it, however does not allow such a reading. Indeed, such a system would require a court to attempt to divine the intent and probable use of all information requested in an interrogatory. Our system does not function that way. Instead, our system permits discovery of any information that "encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). It is up to the parties then to sift through the information and determine what is and what is not pertinent to their case. However, plaintiff would not even permit defendant to sift through the information. Instead, plaintiff would require defendant to blindly proceed to trial without the benefit of all the information afforded to them by the rules.
Based on the long-established jurisprudence governing discovery the Court finds that interrogatories 4, 6, 8, 11, 13 and 20 are proper. They "appear reasonably calculated to lead to the discovery of admissible evidence," regardless of the fact that information sought could possibly also be used for an improper defense. However, plaintiff may take solace in the fact that if the information is indeed irrelevant such information will not be allowed to be placed before the trier of fact.
Plaintiff's incorrect arguments also stem from his mistaken belief that disclosure of information in response to plaintiff's interrogatories is the equivalent of placing the information before the finder of fact. For example, plaintiff's memorandum in opposition is replete with statements such as "[d]efendant has no right to present such evidence as a defense . . ." and "requiring the production . . . will do nothing but place an undue burden on plaintiff and interject irrelevant, inadmissible and misleading information into the trial. . . ." and defendant's "attempt to introduce evidence of the prior earnings of a student . . . undervalued the assessment of a tort award." However, this is not the case and plaintiff's attempts to stiff-arm the discovery process are therefore, unnecessary.
2. Interrogatories 17 and 18
Plaintiff also argues that interrogatories 17 and 18 are irrelevant because they seek information about plaintiff's earning capacity prior to graduating from law school. He argues that this information is not relevant to his earning capacity because he is now a graduate of law school and his earning capacity has increased. In support of his argument, plaintiff cites Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83 (Mo. 1985). Besides the fact that the case is a state law case and therefore of no significance to this Court, it is also unsupportive of plaintiff's argument.
In Kenton, plaintiff was injured while attending law school. The injury prevented the plaintiff from finishing law school and she sued for lost earning capacity. At trial she introduced evidence showing that she was living in poverty prior to law school. The evidence was offered and admitted as being relevant to plaintiff's independence and drive to succeed.
This case clearly shows that evidence of plaintiff's prior earnings can be relevant to the issue of damages in this case. In Kenton, plaintiff was not prohibited from introducing evidence at trial of her previous earnings. Furthermore, questions regarding plaintiff's past earning capacity "could lead to other matters that could bear on any issue that is or may be in the case." Oppenheimer at 351. Therefore, defendant should not be precluded from inquiring about plaintiff's prior earning capacity. Plaintiff's objections to defendant's interrogatories 17 and 18 are without merit.
3. Interrogatories 4 and 6
Plaintiff also challenges defendant's interrogatories 4 and 6 on the grounds that they violate both the Rooker-Feldman and collateral estoppel doctrines. These interrogatories seek information about past legal actions in which plaintiff has been involved including whether he has been convicted of or arrested of a crime.
Interrogatory No. 4 states, "[i]f you have ever been a party to any legal action, whether civil or criminal, other than this one, state the names of the parties to the legal action or against whom the claim was made, the court in which it was filed and the date filed, the nature of the claims made, and the outcome of the action."
Interrogatory No. 6 asks plaintiff to, "[s]tate whether, other than the incident complained of, you have been convicted of or arrested for a crime. If so, state, the charges for which you were arrested, the agency making the arrest, the statute or laws you were alleged to have violated, the date and location of the arrest, whether you were convicted of the charges and if so, the date and location of the conviction."
The Rooker-Feldman doctrine rests on the principle that district courts do not have jurisdiction over judgments of state courts. Therefore, a losing party in state court is barred "from seeking what in substance would be appellate review of the state judgment in a United States district court." Kenmen Engineering v. City of Union, 314 F.3d 468, 473 (10th Cir. 2002). Similarly, the doctrine of collateral estoppel precludes relitigation of an issue of ultimate fact that has once been determined by a valid and final judgment of a court of law. United States v. Gallardo-Mendez, 150 F.3d 1240, 1242 (10th Cir. 1998).
Plaintiff argues that defendant's interrogatories 4 and 6 run afoul of the Rooker-Feldman and collateral estoppel doctrines because defendant is requesting information that has been expunged from plaintiff's record by a state court. Therefore, plaintiff argues that if this Court were to require him to accurately respond to interrogatories 4 and 6, this Court would in effect be exercising appellate jurisdiction over the state court's judgment to expunge the record. Plaintiff's argument, however, misses the mark.
Utah Code § 77-18-10(7) states that, "a person who has received expungement of an arrest under this section may respond to any inquiry as though the arrest did not occur, unless otherwise provided by law." Therefore, Utah law does not require plaintiff to disclose any prior arrest that was later expunged. However, defendant has never argued that plaintiff must disclose an arrest that has been expunged. The interrogatory simply requests him to state whether he has been "arrested or a crime." It is, therefore, within plaintiff's right to refrain from disclosing the expunged arrest. No one in this dispute has claimed otherwise. Therefore, because neither defendant nor this Court has even attempted to challenge the validity of the state court's decision to expunge plaintiff's arrest and conviction, the Rooker-Feldman and collateral estoppel doctrines do not apply in this circumstance.
The Court notes, however, that all other arrests as well as any litigation to which plaintiff has been a party must be disclosed as requested by defendant's interrogatories. There is no privilege claimed by plaintiff that would protect himself from disclosing his voluntary or involuntary participation in any other type of legal action.
Finally, plaintiff argues that interrogatories 4 and 6 are improper because they seek information about plaintiff's prior bad acts. Again plaintiff fails to distinguish between the rules governing discovery and the rules in effect at trial. Plaintiff cites a number of cases in which a plaintiff's prior bad acts were found to be inadmissable. However, proper discovery only requires that the information sought be "reasonably calculated to lead to admissible evidence;" it need not be admissible itself. FED. R. CIV. PRO. 26. Because the interrogatories at issue request information that, if disclosed, would itself be admissible or would lead to admissible evidence, the Court finds that the interrogatories are proper. On that basis alone, defendant's requests are proper.
4. Sanctions
Having found plaintiff's objections to defendant's interrogatories to be without merit the Court GRANTS defendant's motion to compel discovery. The Court must now decide whether sanctions are appropriate.
Defendant also requests the Court to award sanctions to defendant pursuant to Rule 37(c) of the Federal Rules of Civil Procedure. Rule 37 permits a Court to award sanctions as it sees fit if a party has failed to disclose information "without substantial justification." FED. R. CIV. PRO. 37(c).
In this case, plaintiff's objections to defendant's interrogatories are completely baseless. In fact, it is difficult to imagine an argument that is more substantially unjustified. The Court finds that plaintiff has taken a deliberate course of attempting to prevent defendant's from discovering evidence that might cast doubt upon his claim for damages. This position is in stark contrast to discovery's true purpose to help "define and clarify the issues." Oppenheimer, at 351. The discovery process may not be manipulated in such a manner.
Notwithstanding the egregious nature of plaintiff's conduct, however, the Court declines defendant's request to dismiss this action as permitted by Rule 37. Instead, the Court holds that plaintiff shall be required to pay all reasonable expenses, including attorney's fees, incurred by the defendant in filing this motion.
IV. MOTION TO AMEND SCHEDULING ORDER
Also before the Court is defendant's motion to amend the scheduling order in this case. Specifically, defendant asks the Court to extend the following dates: (1) defendant's designation of expert witnesses, (2) discovery cutoff, (3) deadline for dispositive motions and (4) other dates which the Court deems appropriate. The grounds for defendant's motion are that plaintiff has failed to respond to defendant's discovery request, thereby preventing defendant from evaluating the claims and defenses of this case, retaining appropriate expert witnesses and deposing plaintiff's own designated experts.
The current scheduling order, as now constituted, is outdated and incompatible with the current status of this case. And, based on this Court's finding that plaintiff has failed to properly respond to defendant's interrogatories, the Court finds that defendant's motion to amend the scheduling order should be GRANTED. The Court orders that the date for designation of defendant's experts and the cutoff deadline for discovery be fixed at forty days after plaintiff has responded to defendant's discovery requests. The Court further orders that the deadline for the filing of dispositive motions be fixed at sixty days after defendant responds to the requests.
V. CONCLUSION
The Court GRANTS defendant's motion to strike expert report and exclude testimony of Scott Whatcott [44-2]. The Court also GRANTS defendant's motion to compel discovery and for appropriate sanctions [46-2] and motion to amend scheduling order [48-1]. IT IS SO ORDERED.