United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO EXCLUDE
J. BRYAN UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Safeway, Inc.,
d/b/a Haggen Food and Pharmacy's (“Haggen” or
“Defendant”) Motion to Exclude Report and
Testimony of Amy Stephson under Daubert [v.
Merrell Dow Pharms. Inc., 509 U.S. 579 (1993)] and Rule
702. Dkt. 40. The Court has considered the pleadings filed
regarding the motion and the remaining file.
14, 2018, Plaintiff Avery Simmons filed this employment
discrimination case in Thurston County, Washington, Superior
Court, in connection with her employment at Haggen's
Olympia, Washington store. Dkt. 1-2. Haggen moves for an
order excluding Plaintiff's purported expert, Amy
Stephson's, report and testimony. Dkt. 40. For the
reasons provided below, Haggen's motion to exclude (Dkt.
40) should be granted.
RULE OF EVIDENCE 702 and DAUBERT STANDARDS
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.
Daubert, the U.S. Supreme Court “held that
Federal Rule of Evidence 702 imposes a special obligation
upon a trial judge to ‘ensure that any and all
scientific testimony . . . is not only relevant, but
reliable.'” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999)(quoting
Daubert, at 589). In Kumho Tire, the Supreme
Court extended the Daubert and held that Rule 702
applies to all expert testimony, not just “scientific
expert testimony.” Id. The rule has been
interpreted within the Ninth Circuit to require that expert
testimony be “both relevant and reliable.”
Estate of Barabin v. Asten Johnson, Inc., 740 F.3d
457, 463-64 (9th Cir. 2014).
TO EXCLUDE REPORT AND TESTIMONY and RESPONSE
moves to exclude Ms. Stephson's report and testimony,
arguing that: (1) she failed to comply with a subpoena duces
tecum; (2) she “presents opinions that lack foundation
- maintaining that she has never been admitted as an expert,
held a human resources management position, and cannot
identify any published human resources standards upon which
she relies;” (3) she presents legal opinions; (4) her
opinions and “purported [human resources] standards
have never been peer reviewed; and (5) her opinions
“invade the province of the jury.” Dkts. 40 and
Plaintiff opposes the motion, and argues that: (1) Haggen
failed to meet and confer on this issue, failed to meet the
requirements of Fed.R.Civ.P. 45 regarding the subpoena, makes
no showing that Ms. Stephson's failure to provide drafts
of her report should result in exclusion of her report or
testimony, (2) she is qualified as an expert on workplace
investigations because she has been a licensed attorney for
over 40 years, has focused on employment law for the last 23,
and has conducted over 290 workplace investigations, focused
primarily on claims of harassment, discrimination and
retaliation; (3) Ms. Stephson's opinions are relevant to
the claims and defenses asserted and does not offer legal
conclusions or credibility determinations; (4) her opinions
are reliable based on her review of the records, personal
experience, training and education and “to the extent
the Court feels it does not have enough information about
Stephson's experience, personal knowledge, and the
resources she used, . . . it should allow Stephson or
Plaintiff to elaborate for the Court at a hearing
specifically for that purpose.” Dkt. 43.
Court chooses here to determine the admissibility, under Rule
702 and Daubert and Kumho, of the
information in Ms. Stephson's report (Dkt. 41) and to
bypass the other issues raised by Defendant (meet and confer,
compliance with subpoena, provision of drafts and
qualifications of Ms. Stephson).
sadly, none of the information in Ms. Stephson's report
(Dkt. 41) is admissible in evidence for the following
Although she refers to “standard human resources
practices” (Dkt. 41 at 14) and “a professional
fact-finding process, ” she does not identify a source
or foundation for such practices and processes, leaving her
views about such matters as ipse dixit, and without
any foundation to support admissibility. Her report ...