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Court transcript certifying Steve Miller's qualifications to testify as an Employability Expert Witness

*SEE BELOW FOR RULING*

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

DON BIRCH

Plaintiff(s),

vs. FMC CORPORATION, a Delaware corporation,

Defendant(s).

Case No.98-CV-269-J

REPORT AND RECOMMENDATION FOR ORDER RULING ON PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S EXPERT WITNESS, STEVE MILLER

The matter having come before the Court on the Plaintiff's Motion to Strike Defendant's Expert Witness, Steve Miller filed herein, and the Court having reviewed the motion, the response and the reply thereto and being fully advised in the premises FINDS:

1. Plaintiff seeks to strike the designation of defendant's expert witness presumably on the grounds that the designation fails to conform to U.S.D.C.L.R. 26.1 (e)(4).1. Additionally, plaintiff objects that the expert testimony fails to meet the standards of reliability described in Kumho Tire Co., Ltd. v Carmichael , 119 S.Ct. 1167, 1174 (1999) and Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).

2. Sufficiency of the Designation's Compliance with Local Rules

U.S.D.C.L.R. 26.1 (e)(4) requires a written designation of experts including a comprehensive statement of the opinions of each expert and the factual basis therefor; a written report signed by the expert or by counsel or designation of deposition testimony; a current resume; and a statement of special conditions and fees required to take the expert's testimony. The designation of Mr. Miller includes a current resume which meets the requirements of U.S.D.C.L.R. 26.1 (e)(4)(B). (Defendant's Response to Plaintiff's Motion to Strike Defendant's Expert Witness (hereinafter Response), Exhibit A). Additionally, it includes a written report, signed by Mr. Miller, that describes at length the opinions offered by the witness as to suitable employment opportunities open to plaintiff. (Response, Exhibit B at 6-10). He goes on to describe, in detail, the facts and factors on which he relied. (Id. at 1-6). Defendant's Exhibits A and B are portions of Defendant's Designation of Expert Witnesses. The designation contains a description of Mr. Miller's fees. (Response, Exhibit A at 7). Defendant's Designation sufficiently conforms to the requirements of the local rule.

3. Reliability of Expert Testimony

The Court bears the responsibility to ensure that expert testimony is both relevant and reliable. Kumho Tire Co., 119 S.Ct. at 1174. To do so it must examine the methodology employed by the specific expert at issue and determine if the proffered testimony is sufficiently reliable so as to assist the trier of fact. See Id. at 1178; Fed. R. Evid 702.

Burden and Standard of Review

It is the burden of the proponent of the proffered testimony to establish the reliability and admissibility of an expert's testimony. American Tourmaline Fields v. International Paper Co. , 1999 WL 242690 at *2 (N.D. Tex. 1999).

Application of Daubert Factors in an Examination of Expert Reliability

The Supreme Court recently made clear that the concern for reliability of expert witnesses and the Court's gatekeeping functions espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), must be applied to all experts, not just those purporting to offer "scientific testimony." ( Kumho Tire Co., Ltd. v. Carmichael ), 119 S. Ct. 1167, 1174 (1999). The crucial inquiry must be whether the expert is offering valid and reliable knowledge from the expert's field. Id . The standard for that determination is whether the expert employs in the courtroom the "same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id . at 1176. This standard applies whether the expert is basing his or her testimony on professional studies or personal experience. Id .

In determining the reliability of a particular expert, application of the Daubert factors to the analysis of the admissibility of non-science based expert testimony is proper. Id at 1174-75. However, any application of these factors should be done flexibly and on a case-by-case basis. Id . at 1175. Courts, functioning as gatekeepers, must focus on the particular expert and his expertise, not on general methodologies, techniques or theories. Id .

The touchstone for the Court's examination are the four factors outlined in Daubert : 1) Whether the theory or technique at question has (or can be) tested; 2) whether the technique or theory has been subject to peer review or testing; 3) whether there is a known or potential error rate for the technique and whether there are standards which control the operation of the technique; and 4) is the technique or theory generally accepted by experts in the relevant field of study. Daubert , 509 U.S. at 592-94. These factors may not be rigidly imposed to any issue of expert testimony and each examination must be made on the unique facts of each specific case. Kumho Tire , 119 S.Ct. at 1175. However, the Court should first examine the proffered testimony through the lens of the four factors espoused in Daubert before determining if additional, more flexible, or countervailing factors are important to the Court's analysis. See Id . at 1179 (Scalia, J. concurring); Black v. Food Lion, Inc. , 171 F.3d 308, 311 (5th Cir 1999). Each particular expert must be shown to demonstrate the specialized knowledge needed to assist the finder of fact. Kumho Tire , 119 S.Ct. at 1178. The method used by the specific individual expert at issue must be shown to be reliable. Id .

A Court's review may be phrased in terms other than those described in Daubert . For example, the Court may inquire what types of tests do experts in a field use to resolve a question of this kind, or what tests should have been performed but weren't, or what data was overlooked by the expert? See DePoepe v. General Motors, Inc. , 141 F.3d 715 (7th Cir. 1998) The Court will apply the above analysis to the remaining specific testimony properly designated in this matter.

Indices of Reliability in the Designation of Steve Miller

Mr. Miller is designated to offer opinions as to employment opportunities available to the plaintiff in and near his residence. His resume indicates lengthy experience in matching persons to job opportunities. (See Response, Exhibit A at 1). The Court finds that the ability to match potential candidates to suitable jobs is an expertise which may assist the trier of fact determine if plaintiff had employment opportunities open to him. An expert's qualifications need not be based on education, or on the rigid employment of the scientific method, rather it may be based on demonstrable "specialized knowledge" that can come from "real life" experience as much as from "scientific" training. See Fed. R. Evid. 702. Nevertheless, an expert must demonstrate the reliability of his method. To do so he cannot rely merely on subjective, ipse dixit pronouncements absent defining standards. Kumho Tire Co. , 199 S.Ct. at 1179; Black , 171 F.3d at 313. He must be able to describe the progression from his observations to his conclusions. General Electric Co. v. Joiner 118 S.Ct. 512, 519 (1997).

Mr. Miller employs a relatively simple methodology. However, the simplicity of Miller's method does not belie its reliability. Mr. Miller asserts that he conducted a "survey" of the employment marketplace to identify specific positions for which the plaintiff would have been qualified. (Response, Exhibit B at 1). Mr. Miller describes in detail factors from the plaintiff's background, education, and employment history which he considered. (Id at 1-6). Mr. Miller then applied those factors to a database of available positions. (Id. at 6-7). Plaintiff properly describes that database as reading "classified ads for jobs from January of 1997 to March of 1999." (Motion at 2; Traverse at 4). The "classified ads" which formed Mr. Miller's database included those of daily papers from two urban areas relatively near plaintiff's residence ( Salt Lake Tribune and Wyoming Tribune-Eagl e), as well as more rural newspapers (the weekly Green River Star , and the daily Rocket-Miner ). The Court recognizes that newspaper classified ads are often the first resort and primary vehicle many persons utilize in a job search. While readily available to the public these ads are, if anything, a conservative reflection of the overall job market.

Mr. Miller describes plaintiff's job history, education and background. He applied plaintiff's skills and experience to positions of a similar nature. For example, Mr. Miller indicates that plaintiff was promoted to "Traffic Manager in the Manufacturing Department." (Response, Exhibit B at 5). Miller then identified positions such as Traffic Specialist at American Stores Company and Traffic Administrator at Levolor Home Fashions as suitable for one with plaintiff's experience. (Id. at 8). As noted earlier, Mr. Miller has lengthy experience matching the qualifications of persons to job openings. (Response, Exhibit A at 1). The law does not require a rigid application of the Daubert factors, especially where the expert does not assert strictly "scientific" knowledge. The factors must be applied "flexibly". Kumho Tire , 119 S. Ct. at 1175. Applying that standard, the method utilized by Mr. Miller adequately relates to such Daubert factors as testibility and general acceptance. Daubert , 509 U.S. at 592-94. Mr. Miller adequately described the progression from his observations to his conclusions. General Electric Co. v. Joiner 118 S.Ct. 512, 519 (1997). He demonstrated use of the "same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. , 119 S.Ct. at 1176. The Court finds that the testimony of Steve Miller, proffered by the defendant, is sufficiently reliable to meet the requirements of the law.

NOW THEREFORE, IT IS RECOMMENDED that the Plaintiff's Motion to Strike Defendant's Expert Witness, Steve Miller be, and the same hereby is, DENIED.

It is,

FINALLY ORDERED that the parties may, pursuant to 28 U.S.C. section 636(b)(I), file with the Clerk of District Court, any objections to the Report and Recommendation entered by the United States Magistrate Judge. In order to preserve appellate review of the Proposed Report and Recommendation, said objections must be submitted within ten (10) days after receipt of the Report and Recommendation.

Dated this 15th day of June, 1999.

William C. Beaman, U.S. Magistrate Judge

1 Plaintiff cites to Local Rule 26(h)(3)(c). There is no such local rule in the District of Wyoming. However, U.S.D.C.L.R.26.1(e)(4) applies to plaintiff's objection.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING DON BIRCH Plaintiff, vs. FMC CORPORATION, Defendant. Case No.98-CV-269-J ORDER ADOPTING JUNE 15, 1999 REPORT AND RECOMMENDATION AND DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S EXPERT WITNESS STEVE MILLER This matter is before the Court on the Magistrate Judge's June 15, 1999, Report and Recommendation for Order Ruling on Plaintiff's Motion to Strike Expert Witness Steve Miller. The plaintiff did not file an objection to the Report and Recommendation within the time period provided by 28 U.S.C. 636(b)(1). The court being fully advised, it is therefore ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED IN FULL. It is further ORDERED that Plaintiff's Motion to Strike Defendant's Expert Witness Steve Miller is DENIED. Dated this 18th day of August, 1999 Alan B. Johnson UNITED STATES DISTRICT JUDGE

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