United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF STATE OF WASHINGTON'S MOTION
TO EXCLUDE EXPERT TESTIMONY OF GREGORY BINGHAM
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the above-referenced motion
(Dkt. 331). The Court is familiar with the records and files
herein and documents filed in support of and in opposition to
first question raised by counsel is whether the Court should
consider this motion at all. The case schedule was orally
reset at the time this case and the Nwauzor case
(C17-5769RJB) were consolidated for liability issues (May 28,
2019). See Minutes at Docket Number 217, referencing
the Court's oral ruling. Motions in limine are
due by February 5, 2020. The motion is timely. At this point,
Local Civil Rule 7(d) has not been violated.
appears from the record that Mr. Bingham is an expert in
government contracting, generally. He is qualified to testify
about general industry customs and practices regarding
government contracting. Whether testimony within that area of
expertise and on those subjects will be relevant at trial
remains to be seen. To that extent, the motion in
limine should be denied without prejudice.
specifics of Mr. Bingham's proposed testimony is another
matter. In considering the motion in limine, the
Court has focused on Mr. Bingham's expert report at
Docket Number 332-1 (Polozola Declaration, Exhibit A). The
Court has not carefully examined Mr. Bingham's
deposition, found at Docket Number 332-2 (Polozola
Declaration, Exhibit B). In any event, the expert report sets
the parameters of expert testimony. See Federal
Rules of Civil Procedure 26(a)(2)(B) and 37(c)(1).
very difficult to determine, at this point, just how evidence
within Mr. Bingham's expertise might be relevant to the
defendant's affirmative defenses or to disgorgement for
unjust enrichment. Those questions have not been fully
examined in the briefing thus far and can be further
investigated by the Court and counsel at the pretrial
conference, or at trial, when the issues before the Court
hopefully will be more clear.
Bingham has indicated that he is not attempting to interpret
the contract between ICE and the defendant, but in many of
his proposed opinions, he does just that. The contract does
not require interpretation by expert witnesses. The contract
uses common terms and the jury can interpret those terms
without the assistance of an expert. Terms within the
contract, similarly, do not require definition or explanation
by an expert witness.
clear to the Court that it is not appropriate for Mr. Bingham
to render an opinion as to whether the contract is ambiguous.
That may be a question for the jury, but should be a subject
of testimony of witnesses with first-hand knowledge, rather
than the speculation of an expert witness based on his
interpretation of the contract and his speculation about
whether the parties to the contract themselves have found it
in some way or ways ambiguous.
not appropriate for Mr. Bingham to testify that The GEO
Group, Inc. (GEO) is limited by the contract to pay only one
dollar per hour under the Voluntary Work Program. That is an
inappropriate interpretation of the contract, and it is not
appropriate for an expert witness to testify contrary to the
request for admission referred to by counsel. 999 v
C.I.T. Corp., 776 F.2d 866, 869-70 (9th Cir.
Bingham cannot testify about the typicality of the contract
because whether the contract is a typical government contract
or not is not relevant. The language of this contract
controls. Similarly, Mr. Bingham cannot testify as to the
understanding of the expectation of the parties to the
contract. To do so would be to enter into the realm of either
hearsay or speculation.
Bingham may not testify regarding information gained from
interviews of unknown GEO personnel. To do so would be
hearsay. While there may be evidence that GEO administered
the contract in accord with its terms, and that it was not
cited for failure to follow the contract, that is not a
subject of expert testimony, but evidence on that subject
should come from witnesses with first-hand information and
from documentary evidence. Furthermore, Mr. Bingham should
not be allowed to testify that he believes that because GEO
was not criticized by ICE for failure to follow the contract,
that in fact the contract was adequately, or properly,
administered. That is an opinion that is an inference based
on hearsay according to his report.
Court will supplement the foregoing observations and rulings
with specific observations and rulings based on Mr.
3 of the report, in the first paragraph under “Summary
of Opinions, ” the conclusion “that there appears
to have been no ambiguity between ICE and GEO Voluntary Work
Program” will not be admitted. That's a conclusion
about and interpretation of what may be in the minds of the
contracting parties. The contracting parties may have
first-hand knowledge about their views of ambiguity.
4 of the report, in the first paragraph on that page,
information about what “Kendrick understands” is
hearsay and the conclusion in the same sentence regarding
whether GEO's performance was deficient is an inference
based on hearsay that ...