United States District Court, W.D. Washington, Seattle
ORDER DENYING U.S. MOTION TO PRECLUDE EXPERT
S. Lasnik United States District Judge
matter comes before the Court on the government's motion
to preclude the testimony of defendant Bingham Fox's
proposed expert John Douglas Dixon. Dkt. # 64. Defendant
hopes to present Mr. Dixon's expert testimony about oil
pollution compliance on fishing vessels similar to the one in
this case. The government asks the Court to preclude that
testimony on the grounds that defendant's Fed. R. Crim.
P. 16(b)(1) expert disclosures were untimely and inadequate,
that Mr. Dixon lacks the requisite expertise in the relevant
field, and that defendant seeks to introduce Mr. Dixon's
testimony as to an ultimate legal issue in the case. Having
reviewed the memoranda and exhibits submitted by the parties,
Court finds as follows.
Rule of Criminal Procedure 16(b)(1) requires defendants to
disclose certain information, including the results of any
scientific test or experiment related to the trial testimony
of a witness, Fed. R. Crim. P. 16(b)(1)(B), and a written
summary of the basis for any expert witness opinion
testimony, Fed. R. Crim. P. 16(b)(1)(C). The government
argues that defendant's expert witness disclosure of
October 11, 2016 was provided too close to the former trial
date of October 31, 2016, and that in any event the written
summary inadequately discloses the basis for Mr. Dixon's
opinion testimony. Given the Court's continuance of
defendant's trial until March 20, 2017, Dkt. # 73, the
government's untimeliness argument is now moot. And the
Court concludes that defendant's written summary
adequately summarizes both the testimony that Mr. Dixon hopes
to present and the basis for that testimony - namely, Mr.
Dixon's forty-year career as an engineer focusing on
shipboard safety and environmental issues. Dkt. # 64-1 at 1,
government also argues that Mr. Dixon's proposed
testimony is irrelevant and unreliable. To be admissible,
expert testimony must be both relevant and reliable.
Estate of Barabin v. AstenJohnson, Inc., 740 F.3d
457, 463-64 (9th Cir. 2014). “Relevance” requires
only that the evidence “logically advance a material
aspect of the party's case.” Cooper v.
Brown, 510 F.3d 870, 942 (9th Cir. 2007).
“Reliability” requires that the expert's
testimony have “a reliable basis in the knowledge and
experience of the relevant discipline.” Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999)
(citing Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592 (1993)). It is the Court's
responsibility to act as gatekeeper, excluding “junk
science” that does not meet those standards. Ellis
v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.
offers Mr. Dixon, a licensed marine engineer, for his expert
testimony on common environmental practices aboard fishing
vessels like defendant's. The government argues that Mr.
Dixon should not be permitted to testify as to what
environmental practices are permitted by federal law, or that
it is common practice for fishing vessels to discharge oily
water overboard in violation of that law. The Court agrees
that an expert witness may not give his opinion on legal
conclusions, such as what conduct federal law permits.
See Hangarter v. Provident Life & Acc. Ins. Co.,
373 F.3d 998, 1016 (9th Cir. 2004). But testimony regarding
the common environmental practices of fishing vessels may be
both relevant and helpful to the fact-finder in understanding
the complex technical facts of this case, see
Fed.R.Evid. 702, and so Mr. Dixon may express his opinion on
those practices without commenting on whether they comply
with or violate federal law. The government may object to Mr.
Dixon's testimony during trial and the Court will make
its determination regarding the propriety of the testimony at
government also argues that Mr. Dixon's background does
not qualify him to testify regarding the chemical and
biological characteristics of oily bilge water and certain
cleaning solvents. But Mr. Dixon need not be a chemist or
biologist to develop an expert-level familiarity with
characteristics of bilge water and cleaning solvents. The
Court finds that Mr. Dixon's research on oil pollution
compliance and his experience conducting environmental audits
of fishing vessels qualifies him to testify on the basis of
his familiarity with oily bilge water and bio-remedial
cleaning solvents. This experience also qualifies Mr. Dixon
to testify regarding whether, in his experience, fishing
vessels pump oily bilge water overboard when the vessel holds
contain live seafood. All of this testimony may well help the
fact-finder understand technical aspects of this case.
See Fed.R.Evid. 702. The government may test the
basis for Mr. Dixon's opinions on cross-examination, and
to the extent Mr. Dixon's testimony veers outside the
scope of his experience, the government may object.
Court is also unpersuaded by the government's argument
that Mr. Dixon's testimony is unreliable because he never
personally inspected defendant's vessel. An expert witness
is permitted wide latitude to offer opinions, including
opinions not based on firsthand knowledge or observation, so
long as the expert's opinion has a reliable basis in the
knowledge and experience of his discipline. Jinro Am.
Inc. v. Secure Investments, Inc., 266 F.3d 993, 1004
(9th Cir. 2001); Fed.R.Evid. 703. Upon review of Mr.
Dixon's qualifications, Dkt. # 64-1 at 1-5, the Court
concludes that Mr. Dixon's experience with marine safety
and environmental practices is sufficiently reliable that
total preclusion of his testimony is unwarranted. The
government will have the opportunity to test Mr. Dixon's
opinions on cross-examination.
Court does, however, agree with the government that Mr. Dixon
may not testify as to the state of mind of defendant and
other crew members based on speculation regarding their
interpretation of a Clean Water Act placard. Federal Rule of
Evidence 704(b) explicitly provides that: “In a
criminal case, an expert witness must not state an opinion
about whether the defendant did nor did not have a mental
state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of
fact alone.” The Court will not admit expert testimony
stating an opinion on whether defendant possessed a culpable
state of mind, but to avoid precluding relevant and
admissible testimony, the Court will reserve ruling on the
admissibility of specific expert testimony until it is
presented in context.
all the foregoing reasons, the government's motion to
preclude the expert testimony of John Douglas Dixon (Dkt. #
64) is DENIED.
 The Court finds this matter suitable
for disposition based on the materials submitted by the
parties and therefore denies the parties' requests for
 Defendant argues that Mr. Dixon has,
in fact, been aboard defendant's vessel on multiple