Caldwell v. City of S.F.
| Decision Date | 13 April 2021 |
| Docket Number | Case No. 12-cv-01892-DMR |
| Court | U.S. District Court — Northern District of California |
| Parties | MAURICE CALDWELL, Plaintiff, v. CITY OF SAN FRANCISCO, et al., Defendants. |
Plaintiff Maurice Caldwell retained Martin Cunniff to "analyze Mr. Caldwell's earning capacity had he not been wrongfully convicted, and to calculate the economic loss that Mr. Caldwell incurred due to his wrongful conviction . . . ." [Docket No. 654-6 ("Cunniff Expert Report") at 2.] Defendants move to exclude Cunniff's testimony entirely. [Docket No. 549 ("MIL").] Caldwell opposes. [Docket No. 640 ("Opp.").]
For the reasons stated below, Defendants' motion is granted, contingent on Defendants' ability to reach agreement with Plaintiff on proposed language to be read to the jury regarding the parties' positions on the cost of therapeutic services reduced to present value.
Cunniff's report offers these five opinions:
Cunniff Expert Report at 2 (emphasis in original). With respect to the first and second opinions, Cunniff explains that a loss of earnings capacity calculation is appropriate where a plaintiff has a lack of established work history. Id. at 5. Cunniff states that his calculations look at "the earning capacity of career choices that the plaintiff had a reasonable probability of achieving." Id.
Cunniff was instructed by Caldwell's counsel to assume that Caldwell had a reasonable probability of pursuing at least three careers if he had not been incarcerated: (a) carpenter; (b) insurance salesperson; and (c) construction manager. Cunniff Expert Report at 2; see Opp. at 2. Cunniff then calculated the estimated earnings for individuals in these professions over the period that Caldwell was incarcerated to reach his ultimate opinions about Caldwell's damages for loss of earnings capacity. Cunniff acknowledges that at the time of Caldwell's 1990 imprisonment, he "had not selected a career, and had worked occasionally as a warehouseman and as a carpenter but did not have an established work history in any occupation." Cunniff Expert Report at 5.
On March 11, 2021, the court ordered Caldwell to file an offer of proof that "discloses all admissible foundational facts supporting the underlying assumptions Cunniff used to calculate Plaintiff's economic damages based on the identified professions," including a detailed explanation about how that information will be offered into evidence. [Docket No. 685.] Caldwell responded on March 16, 2021. [Docket No. 703.] The court determined that the filing went "far beyond thecourt's order" because it included "additional legal argument and citations [and] additional argumentative analysis about how the anticipated evidence meets the cited legal standards." [Docket No. 705.] It accordingly struck the filing and ordered Caldwell to file an amended offer of proof, which he did on March 17, 2021. [Docket No. 707 ("Offer of Proof").] The court found that portions of the new filing "continue to contain improper argumentative analysis" and accordingly struck the argumentative portions of the offer of proof. [Docket No. 709.] The court accepted the portions of the offer of proof that were purely factual.
The offer of proof explains that Caldwell began working a paper route when he was 12 years old. Offer of Proof at 1. He then spent close to five years in the custody of the California Youth Authority and was discharged in August 1988. During the 2-year period from August 1988 to his arrest in September 1990, Caldwell was "constantly looking for work." Id. From about November 1988 to September 1990, he worked two to three days a week, for two to four hours per day, at a hair salon. Id. From February to July 1990 he worked full-time as a warehouseman and forklift operator. Id. Caldwell "regularly took on other short-term work when possible." Id. For approximately five months from October 1988 through February 1989, Caldwell worked full-time on several remodeling projects with a family friend who had a carpentry and contracting business. Id. He continued working with that individual on an intermittent basis until his arrest in September 1990. Id. at 2. He estimates that he worked on about ten different projects between March 1989 and September 1990, and that each project took between one to eight weeks. Id. Between July or August 1989 through November 1989, Caldwell worked full-time on carpentry projects with another family friend. Id. Caldwell took on several other miscellaneous day labor jobs when such opportunities arose, including janitorial work, carpentry, and painting. Id. While he was incarcerated, Caldwell worked as a porter and doing laundry and kitchen work. Id. at 3.
Federal Rule of Evidence ("FRE") 702 governs testimony by expert witnesses. It provides that:
Fed. R. Evid. 702. FRE 702 "contemplates a broad conception of expert qualifications," which may be obtained through "knowledge, skill, experience, training, or education." Thomas v. Newton Int'l Enterprises, 42 F.3d 1266, 1269 (9th Cir. 1994) (emphasis added). "In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony." FRE 702, Advisory Committee Notes, 2000 Amendments (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). The standards outlined in Daubert apply to all expert testimony, not just testimony based in science. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156-57 (1999). However, "the rejection of expert testimony is the exception rather than the rule." FRE 702, Advisory Committee Notes, 2000 Amendments (citing cases). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 595.
Defendants move to exclude Cunniff's testimony on the basis that (1) he is not qualified to testify as an expert witness on Caldwell's earning capacity; (2) his methodologies regarding Caldwell's economic losses and hedonic damages are unreliable; and (3) his testimony is prejudicial and confusing.
Cunniff is an attorney. He graduated from Loyola University in May 1983 with a bachelor's degree in business administration and from Frederic Levin College of Law in December 1989. Cunniff Expert Report, Ex. 1. He describes himself as a "[s]easoned litigator with over thirty years of extensive, in-depth experience in all types of business litigation including antitrust, intellectualproperty, securities fraud, securities enforcement, consumer finance, and economic valuation issues." Id., Ex. 1. He states that his career has focused on the calculation of damages, and as a litigator, he has handled "the damages case for hundreds of cases including approximately two dozen commercial trials and arbitrations." Id. at 3. Cunniff is the co-author and co-editor of a treatise on damages, "Calculating and Proving Damages," which was published by Law Journal Press in 2011. Id. Cunniff avers that he has read "hundreds, if not thousands, of cases, articles and economic analyses on damages" and has "kept up with developments in the field." Id.
Cunniff has made presentations at various law firms on "building the damages case in litigation." Cunniff Expert Report at 3. He has also taught damages-related courses at the FBI Academy in Quantico, VA, the FBI National Convention of Accountants, and training programs and conferences put on by the American Institute of Certified Public Accountants. Id. He has experience in "developing competency models to evaluate employees on their skills and aptitudes," although it appears that he has only applied those skills in evaluating lawyers. Id. Finally, Cunniff states that he has "been involved in working with hundreds of economists on various pieces of complex litigation." Id. Cunniff has never served as an expert witness in a lawsuit.
Defendants argue that Cunniff is not qualified to testify as an expert on Caldwell's loss of earning capacity. MIL at 5. They point out that Cunniff is a lawyer and that his experience assessing economic damages relates exclusively to his commercial litigation practice. Id. They assert that Cunniff is not a certified vocational rehabilitation counselor,...
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