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Hirata v. Southern Nevada Health District

United States District Court, D. Nevada

March 21, 2017

VALERIE HIRATA, et al., Plaintiffs,
v.
SOUTHERN NEVADA HEALTH DISTRICT, et al., Defendants.

          ORDER

          Lloyd D. George United States District Judge

         The defendants-Southern Nevada Health District (Health District), Angus MacEachern, Robert Gunne, Kimberly DiPasquale, and Lawrence Sands-move to exclude the reports and testimony of Dr. Alison Osinski and Dr. Jay Finkleman (ECF Nos. 100, 103), whom the plaintiffs Valerie Hirata, Whitnie Taylor, and Angela Jones designated as expert witnesses. The plaintiffs oppose the motions (ECF Nos. 117, 126). The Magistrate Judge issued a Report and Recommendation that recommends that the motions be granted. The plaintiffs have filed objections to the recommendations (ECF Nos. 166, 167), to which the defendants have filed replies (ECF Nos. 168, 169). After carefully reviewing the motions, the supporting memoranda of points and authorities, the plaintiffs' oppositions, as well as their objections to the Report and Recommendation, and the defendants' replies thereto, and the supporting documents and exhibits submitted by the parties, the Court will adopt the Report and Recommendation, and grant the motions.

         Expert Report and Testimony of Dr. Osinski

          The Magistrate Judge found that “[i]f Osinski's testimony was limited the [sic] quality and thoroughness of the Health District's pool inspections, she would be more than qualified. Osinski's proposed testimony however exceeds the scope of her qualifications.” ECF No. 160, p.4, ll. 3-5. In objecting to the Report and Recommendation, the plaintiffs concede that they did not retain Dr. Osinski as an expert on Human Resources. Rather, they argue that they retained Dr. Osinski “to confirm reasonable pool inspection requirements and whether the large amount of inspection quotas were attainable by pool inspectors.” ECF No. 167, p. 11, ll.16-17. They conclude that the Report and Recommendation is “clearly erroneous to exclude all of [Dr. Osinski's] testimony when he specifically held that she was ‘more than qualified' to opine on inspection related issues.” Initially, the Court must note its agreement with the Magistrate Judge's recommendation to exclude the report and testimony of Dr. Osinski to the extent that she offers opinions on matters outside of her qualifications and expertise. The closer question is whether Dr. Osinski offered expert opinions, within the areas of her expertise and qualifications, that satisfy the admissibility requirements of Fed.R.Evid. 702.

         Pursuant to Rule 702,

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (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 reliably applied the principles and methods to the facts of the case.

         Absent from the plaintiffs' objection is any argument specifically identifying any opinion by Dr. Osinski that was within her area of expertise that would help the trier of fact understand evidence or determine a fact in issue, and further showing that Dr. Osinski identified sufficient facts and evidence that supported her opinion, and further showing that her opinion was the product of reliable principles and methods, and that Dr. Osinski applied those principles and methods to the facts of this case. Rather, without pointing to any specific opinion rendered by Dr. Osinski in her report or her deposition testimony, the plaintiffs offer only the general argument that Dr. Osinski should be permitted to testify on “inspection related issues.”

         That the report and testimony of Dr. Osinski should be excluded is best exemplified by her own words. She concluded her report, stating:

Based on the above, it is my opinion that the Southern Nevada Health District and its supervisory employees tolerated an atmosphere uncondusive [sic] to work, did not properly train and oversee employees in some positions of supervision, allowed incompetent employees to remain in jobs for years, permitted delays that cost pool owners and contractors time and money. They harassed employees who brought these deficiencies to their attention and continued to escalate the level of harassment until the employees were forced to resign.
If called, I will testify to these expert opinions.

Exhibit 1 to Plaintiffs' Objection, Report of Dr. Alison Osinski, ECF No. 167-1, p. 10. The plaintiffs have conceded they did not call Dr. Osinski as a Human Relations expert, and that she is not qualified as such. The plaintiffs have not offered any argument, as to any of the proposed opinions expressed by Dr. Osinski, suggesting she was qualified as an expert as to that opinion. The plaintiffs have not identified any specific opinion of Dr. Osinski, either in her report or her deposition testimony, that satisfies each requirement of Rule 702. The Court cannot locate any such opinion by Dr. Osinski. Accordingly, the Court will adopt the Report and Recommendation and grant the motion to exclude Dr. Osinski's report and testimony.

         Expert Report and Testimony of Dr. Finkleman

         The Magistrate judge reported that the plaintiffs had not met their “burden to show that Finkleman's proposed testimony is based on a reliable methodology.” ECF No. 160, p. 5, ll. 10-11. He further explained, “Finkleman's opinions are devoid of any explanation that links a specific Health District policy to the alleged violations of this policy described in his report.” Id., at 6, ll. 12-13.

         The plaintiffs argue that the Magistrate Judge erred in concluding that Dr. Finkleman had not identified the Health District policy or general human resources practice from which the Health District's conduct deviated, that it is not appropriate to strike an “experience-based” expert for perceived deficiencies in methodology or reliability, and that any perceived deficiency goes to the weight, rather than the admissibility, of Dr. ...


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