Porras v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARISA PORRAS,

Plaintiff,

v. Case No: 8:21-cv-423-JSS

UNITED STATES OF AMERICA,

Defendant.

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ORDER

THIS MATTER is before the court on Plaintiff’s request for an evidentiary

hearing on its Motions to Exclude Expert Testimony and Defendant’s objections to

the request. On February 28, 2022, Plaintiff filed her Motion to Exclude Expert

Testimony of Dr. Jeremy Cummings (Dkt. 57), Motion to Exclude Expert Testimony

of Dr. James M. Bullock (Dkt. 59), and Motion to Exclude Expert Testimony of Dr.

Neil Schechter (Dkt. 61) (“Motions”). Plaintiff further requested that an evidentiary

hearing be held on each Motion. (Dkts. 58, 60, 62.) On March 21, 2022, the court

directed the Government to respond to the Motions and further scheduled an

evidentiary hearing for April 8, 2022. (Dkt. 72.) On March 23 and 24, 2022, the

Government filed its responses to Plaintiff’s Motions to Exclude. (Dkts. 75, 76, 77.)

In each response, the Government requests this court to cancel the scheduled

evidentiary hearing. (Id.) The Government maintains that Plaintiff’s Motions are

properly considered as motions in limine and that “the gatekeeping requirements of

Daubert are not implicated here.” (Id.) The Government further maintains that

because this case would involve a non-jury trial, “pretrial consideration of such

motions ‘weighs heavily in favor of denying the motions in limine and addressing the

issues if and when they come up at trial.’” (Dkt. 77 at 5 (quoting Johnson & Johnson

Vision Care, Inc. v. CIBA Vision Corp., 616 F. Supp. 2d 1250, 1256 (M.D. Fla. 2009)).

In federal court, expert opinions must meet the admissibility guidelines

announced by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), and Federal Rule of Evidence 702. Before permitting expert opinion

testimony, the court must make certain that the expert employs “in the courtroom the

same level of intellectual rigor that characterizes the practice of the expert in the field.”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). The court must act as

gatekeeper to prevent speculative and unreliable “expert” testimony from reaching the

jury. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (noting that the

“task of evaluating the reliability of expert testimony is uniquely entrusted to the

district court under Daubert”). The gatekeeping role is “significant” because an

“expert’s opinion ‘can be both powerful and quite misleading.’” United States v. Frazier,

387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Daubert, 509 U.S. at 595).

However, in actions set for a non-jury trial, such as this matter, “[t]here is

considerable legal support for the proposition that the Daubert gatekeeping function is

relaxed.” See SE Property Holdings, LLC v. Center, No. 15-cv-0033-WS-C, 2017 WL

242610, at *3 (S.D. Ala. Jan. 19. 2017). That is because the court, sitting as trier of

fact, is in the best position to distinguish between persuasive and insufficient expert

evidence at trial. See, e.g., United States v. Brown, 415 F.3d 1257, 1268–69 (11th Cir.

2005) (“There is less need for the gatekeeper to keep the gate when the gatekeeper is

keeping the gate only for himself.”); N.W.B. Imports & Exports, Inc. v. Eiras, No. 3:03-

cv-1071-J-2-MMH, 2005 WL 5960920, at *1 (M.D. Fla. Mar. 22, 2005) (“Because this

is a non-jury trial, the gatekeeping purpose of Daubert is not implicated. The Court

will therefore receive [the expert’s] testimony, make a final admissibility decision and,

if admissible, accord it the weight, if any, it deserves.”); see also Gibbs v. Gibbs, 210 F.3d

491, 500 (5th Cir. 2000) (“Most of the safeguards provided for in Daubert are not as

essential in a case such as this where a district judge sits as the trier of fact in place of

a jury.”). As such, an evidentiary hearing is not required at this time on Plaintiff’s

motions to exclude expert testimony.

Upon consideration, the court will defer holding an evidentiary hearing at this

time and will proceed with hearing argument from the parties on the pending Motions,

without witness testimony.

Accordingly, it is ORDERED:

1. The evidentiary hearing previously scheduled for April 8, 2022 is hereby

cancelled.

2. On April 8, 2022, the court will conduct a hearing on Defendant’s Motion

in Limine (Dkt. 40) and Plaintiff's Motions to Exclude Testimony (Dkts. 57,

59, 61).

3. Defendant’s Opposed Motion to Have Experts Appear at the Daubert

Hearing Over Video Medium (Dkt. 79) is DENIED without prejudice.

DONE and ORDERED in Tampa, Florida, on April 4, 2022.

/ . eo

JUEIE $. SNEED

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

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