United States District Court, W.D. Texas, Austin Division
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
the Court are Defendants' Motion to Exclude the Expert
Testimony of Valerie Wolfe Mahfood, Ph.D. (Dkt. No. 46) and
Plaintiff's Response (Dkt. No. 48). The District Court
referred the discovery dispute to the undersigned Magistrate
Judge for resolution pursuant to 28 U.S.C. §
636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of Appendix C of
the Local Rules.
Estevan Cervantez is a former Corrections Officer at the
Texas Department of Criminal Justice. He alleges violations
of his Fourteenth Amendment rights, tortious interference,
and fraud claims related to his resignation from his position
at TDCJ. Dkt. No. 1 at 16, 27, 23. Cervantez has retained
Valerie Wolfe Mahfood, Ph.D., to testify as an expert is his
case. Dr. Mahfood possesses a doctorate in Criminal Justice
from Sam Houston State University and teaches Criminal
Justice at American Intercontinental University. Dr. Mahfood
submitted an expert report regarding Defendants' actions
in the investigation of Cervantez's alleged misconduct
and his subsequent resignation. Dkt No. 44. The report, based
upon Cervantez's Complaint, various grievances Cervantez
filed related to the handling of his resignation, and TDCJ
policy, opines that Defendants violated several TDCJ policies
in dealing with Cervantez's resignation. The parties
dispute the facts underlying the resignation.
object to Dr. Mahfood's report, and ask that her
testimony and expert report be disallowed. Defendants do not
attack Dr. Mahfood's qualifications as an expert, but
seek to exclude her testimony because: (1) it was not based
upon personal knowledge of the pertinent events; and (2) she
assumed for the purposes of her report that Cervantez's
version of the underlying facts of the case are true.
Defendants argue the report is unreliable and not helpful to
the trier of fact as required by Rule 702, and because
admission of her testimony will mislead the jury and cause
unfair prejudice in violation of Rule 403. Defendants rely on
Gage v. Jenkins, 2017 WL 2190064, at *4 (M.D. La.
May 18, 2017), in support. Cervantez responds that
Gage is inapposite to his case. Additionally, he
cites various cases supporting the notion that an expert may
assume a party's version of the facts to be true in
reaching an expert opinion. Viterbo v. Dow Chemical
Co., 826 F.2d 420, 422 (5th Cir. 1987) (challenges to
the basis of an expert's opinions generally go to the
weight of the evidence); Perez v. City of Austin,
2008 WL 1990670 at *5 (W.D. Tex. May 5, 2008); Pipitone
v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir.
Supreme Court acknowledged in Daubert v. Merrell Dow
Pharmaceuticals that Federal Rule of Evidence 702 is the
proper standard for determining the admissibility of expert
testimony. Daubert v. Merrell Dow Pharms., 509 U.S.
579, 597-98 (1993). Rule 702 provides:
A witness who is qualified as an expert by knowledge,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Under Daubert, a trial court acts
as a “gatekeeper, ” making a “preliminary
assessment of whether the reasoning or methodology properly
can be applied to the facts in issue.”
Daubert, 509 U.S. at 592-93; see also Kumho Tire
v. Carmichael, 526 U.S. 137, 147 (1999); Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002).
Daubert and its principles apply to both scientific
and non-scientific expert testimony. Kumho Tire, 526
U.S. at 147. Experts need not be highly qualified to testify,
and differences in expertise go to the weight of the
testimony, rather than admissibility. Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009). Nonetheless,
courts need not admit testimony that is based purely on the
unsupported assertions of the expert. Gen. Elec. Co. v.
Joinder, 522 U.S. 136, 146 (1997); Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
addition to being qualified, an expert's methodology for
developing the basis of her opinion must be reliable.
Daubert, 509 U.S. at 592-93; Moore, 151
F.3d at 276. “The expert's assurances that he [or
she] has utilized generally accepted scientific methodology
is insufficient.” Moore, 151 F.3d at 276. Even
if the expert is qualified and the basis of his or her
opinion is reliable, the underlying methodology must have
also been correctly applied to the case's particular
facts in order for the expert's testimony to be relevant.
Daubert, 509 U.S. at 593; Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). The
party proffering expert testimony has the burden of
establishing that the challenged testimony is ...