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Fish v. Kobach

United States District Court, D. Kansas

February 27, 2018




         Before the Court are two pretrial motions seeking to strike or limit testimony offered by Defendant Kris Kobach: Plaintiffs' Motion to Exclude Testimony, Strike Deposition Designations, and Exclude Survey of Patrick McFerron (Doc. 460); and Plaintiffs' Motion to Strike and Exclude Untimely “Additional” Expert Opinions From Dr. Jesse Richman (Doc. 448). The motions are fully briefed and the Court is prepared to rule. For the reasons explained below, the Court grants in part, denies in part, and takes under advisement in part the motion to exclude and limit McFerron's testimony and survey. The Court grants Plaintiffs' motion to exclude Richman's supplemental expert opinion and denies the motion to strike.

         I. Patrick McFerron

         On May 17, 2016, Defendant filed a Notice of Service of Rule 26(b) Expert Report, attaching the report of Hans von Spakovsky.[1] Attached to that report is a survey of 500 Kansans by CHS & Associates, conducted between May 9 and 11, 2016. Pat McFerron drafted the survey results relied on by von Spakovsky in his expert report. McFerron is listed on the CHS report as the President of CHS & Associates, which is in Oklahoma City, Oklahoma. On May 31, 2016, Plaintiffs filed a notice of deposition for McFerron, scheduled for June 7, 2016. According to Defendant's brief, this deposition lasted for about six hours. Plaintiffs' counsel asked McFerron whether he purported to testify as an expert in this case, and he testified that he did not believe so. He testified about the survey, its methodology, and its results. McFerron was never disclosed as an expert witness under Fed.R.Civ.P. 26(a)(2); he has not prepared an expert report in this matter. The Court assumes that McFerron was disclosed as a fact witness, although neither party makes clear whether he was initially disclosed as a fact witness under Rule 26(a)(1).

         Neither party relied on McFerron's deposition testimony on summary judgment, but Defendant submitted the von Spakovsky expert report, along with the attached McFerron survey, in support of his motion for summary judgment. Plaintiffs filed a motion to exclude this report and the attached survey under Fed.R.Evid. 702 and Daubert. In a January 3, 2018 ruling, the Court excluded the survey for purposes of summary judgment, finding that von Spakovsky was not qualified to opine about the McFerron survey results and methodology.

         On January 30, 2018, Defendant filed his final witness disclosures, [2] in advance of the March 6, 2018 trial date. McFerron is listed as a fact witness by written deposition. Also on that date, Defendant filed his deposition designations, which include a significant portion of McFerron's deposition.[3] Plaintiffs now move in limine to exclude McFerron's testimony, strike and exclude from trial his deposition designations, and exclude his survey. They argue that his testimony is inadmissible lay opinion, that it should be excluded as expert opinion because it was not disclosed under Rule 26(a)(2), and Defendant's failure to disclose was neither harmless nor substantially justified. Moreover, if the Court is inclined to allow McFerron's opinion testimony, Plaintiffs ask that Defendant be required to produced him as a live witness. Finally, Plaintiffs seek to exclude the survey as inadmissible hearsay.

         A. Lay versus Expert Opinion Testimony

         Plaintiffs' requested relief depends in part on whether McFerron's proposed testimony about the 2016 survey constitutes lay or expert opinion. Fed.R.Evid. 701 governs lay opinion testimony:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

         The Tenth Circuit has explained that “Rule 701 ‘does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.'”[4] Examples of lay opinion evidence are “the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.”[5]

         First, Defendant maintains that McFarron's proposed testimony qualifies as lay opinion testimony because it does not involve specialized skill or knowledge, but instead merely relays the survey's questions and results. His final witness disclosure describes McFarron's testimony as follows:

Mr. McFerron is expected to testify regarding the survey he designed and conducted of Kansans in May of 2016. Mr. McFerron will testify consistent with other subject matters addressed in his deposition given in this case on 6/07/16 including how the study was conducted and its results.
Mr. McFerron will testify that after controlling for gender, age, and geographic region in order to replicate U.S. Census information, the study revealed that requiring proof of citizenship in order to register to vote is not a concern for residents and is not hampering voter registration. Among those not registered to vote, only one (who later acknowledged having access to a birth certificate) mentioned documentation as a reason for not being registered to vote. This was far outdistanced by those who said they had no interest in voting, those with felony convictions and those who for personal reasons (having moved, just turned of age, or had not made time) had not registered to vote. Fully 96% of the respondents with legal status indicated they had ready access to a birth certificate showing them being born in the United States or on a U.S. territory. When just including a U.S. Passport option, this percentage grows to 98% having one of these two documents. This increases to 99% when including other hospital records or military records. Access to a birth certificate is nearly universal with all age and income groups reporting 95% having access. Similarly, those of Hispanic descent are just as likely to have access to a birth certificate showing U.S. birth (96%) as are those not of Hispanic descent (96%). Not only does this law not provide an obstacle to legal residents voting, it is embraced by them. Fully 77% of all respondents favor the law and only 14% oppose it. Even among those not registered to vote, 77% are supportive of the law. This group is actually less opposed (10%) than are those who are registered to vote (15%).[6]

         Plaintiffs respond that the described testimony is based on specialized knowledge in survey design and methodology, which is beyond the realm of common experience. The Court agrees.

         While it is true that McFerron has firsthand knowledge of the survey's questions and results, Rule 701 applies where the witness offers “observations that are common enough and require . . . a limited amount of expertise, if any.”[7] McFerron plainly offers testimony that requires expertise in survey design and methodology. For example, he plans to testify about the survey's attempts to control for gender, age, and geographic region based on census data. The description submitted by Defendant in paragraph 2 of McFerron's final witness disclosure plainly includes an interpretation of the survey's results. And his deposition testimony includes a recitation of his past survey experience, educational background, expertise in surveying, and an explanation of the methodology behind his survey results.

         Defendant characterizes the survey's methodology as basic math. In Bryant v. Farmers Insurance Exchange, the Tenth Circuit allowed lay opinion testimony about “a simple average of 103 numbers, ” explaining that basic mathematical calculations, “well within the ability of anyone with a grade-school education is, in our opinion, more aptly characterized as a lay opinion under Fed.R.Evid. 701.”[8] The Tenth Circuit has also approved of accountant testimony on lost profits under Rule 701 where the accountant prepares such valuations based on personal experience with the company, uses “basic arithmetic, ” and “no outside expert reports.”[9]

         The Court finds that McFerron's survey results go beyond the simple math previously allowed under Rule 701 in this circuit. Defendant hired a professional research firm to conduct this survey; his office did not conduct the survey. This witness relies on his extensive polling experience and educational background in testifying about the survey's methodology and results. McFerron's testimony, as described in the final witness disclosure, will be offered by Defendant to show that this survey is reliable and helpful to the trier of fact. The Court cannot determine admissibility of this survey without such expert testimony.[10] Because the Court finds that McFerron's testimony does not satisfy Rule 701, Defendant's prior designation of McFerron as a fact witness was insufficient under Rule 26(a)(2).

         B. Failure to Disclose

         Under Fed.R.Civ.P. 37(c)(1), when a party fails to designate a witness as required by Fed.R.Civ.P. 26(a),

the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).[11]

         In determining whether a failure to disclose is harmless or substantially justified, the Court looks to several factors: “(1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness.”[12] The burden to demonstrate that the failure to disclose is harmless or substantially justified is on the party who failed to properly disclose.[13]

         In his response brief, Defendant suggests that Plaintiffs were on notice that McFerron was to be a lay witness, not an expert witness, and therefore any error in designation was harmless. But the Court has rejected Defendant's argument that McFerron's testimony qualifies as lay testimony, and Plaintiffs' perception in June 2016 about whether McFerron would testify as a lay or expert witness does not dictate the prejudice inquiry. Instead, this Court must determine whether Defendant's failure to properly designate McFerron as an expert witness was harmless or substantially justified.

         The parties dispute the prejudice and surprise factor given Plaintiffs' extensive deposition of McFerron in June 2016, during which Plaintiffs examined McFerron about his educational background, prior survey experience, and survey methodology. As Plaintiffs have explained, the prejudice and surprise here does not necessarily stem from Plaintiffs' inability to depose the witness. Rather, the prejudice and surprise stems from Defendant's failure to follow the dictates for expert designations set forth in Rule 26(a)(2) and the Court's scheduling orders.[14] Failure to follow these rules allowed Defendant to circumvent his disclosure obligations that better allow Plaintiffs to prepare for dispositive motions, and retain a rebuttal witness. Moreover, because Defendant never designated McFerron as an expert, nor informally identified him as such prior to the pretrial Da ...

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