UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) RICHARD G. CONVERTINO, ) ) Plaintiff, ) ) v. ) Civil Action No. 04-00236 (RCL) ) UNITED STATES DEPARTMENT ) OF JUSTICE, et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

This matter comes before the Court on defendant Department of Justice’s Motion to

Strike the Expert Designation and Report of Daniel J. Metcalfe [156]. Upon consideration of the

motion, the opposition and reply thereto, the Court concludes that defendant’s motion shall be

GRANTED and the expert designation and report of Daniel J. Metcalfe shall be stricken.

I. FACTUAL BACKGROUND

Plaintiff Richard G. Convertino brought suit against his former employer, the United

States Department of Justice and the United States Attorney’s Office for the Eastern District of

Michigan, along with the Attorney General and other department officials, claiming violations of

the Privacy Act. (See generally Compl. ¶¶ 3–9, 91–143.) Specifically, plaintiff contends that

department officials gave private personnel information related to investigations by the

Department’s Office of Professional Responsibility to those with “no need to know,” both inside

and outside the U.S. Attorney’s Office, whose official duties did not require access to the

records. (See id. ¶¶ 93–4, 100.) On August 12, 2009, plaintiff notified defendants that, pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), he had designated Daniel J. Metcalfe as an

expert in the Privacy Act. (See Def. Dep’t of Justice’s Mot. to Strike the Expert Designation and

Report of Daniel J. Metcalfe Ex. 2 [156-2]; see also Ex. 1 [156-1] (email from plaintiff’s counsel

notifying of the Rule 26 filing).) In the motion before the Court, defendants seek to strike this

expert designation.

II. EXPERT TESTIMONY

A. Designation of Daniel J. Metcalfe as an Expert Witness

a. Legal Standard

Under Federal Rule of Civil Procedure 26(a)(2)(A), a party “must disclose to the

other parties the identity of any witness it may use at trial to present evidence under

Federal Rule of Evidence 702 . . . .” Federal Rule of Evidence 702 sets the standard for

the allowance of testimony by experts:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case (emphasis added).

To determine the admissibility of proffered expert testimony, this Court must look

to two factors: the witness (1) must be qualified, and (2) must be capable of assisting the

trier of fact. Burkhart v. Wash. Metro. Area Transit Auth.,

(D.C. Cir.

1997) (citing Exum v. Gen. Elec. Co.,

(D.C. Cir. 1987)). Even if

these two prerequisites are met, if the “[e]xpert testimony . . . consists of legal

conclusions,” it “cannot properly assist the trier of fact . . . and thus it is not ‘otherwise

admissible’.”

at 1212 (citing Torres v. County of Oakland,

(6th Cir.

2 1985)).1 Legal conclusions, unlike factual assessments, “intrude upon the duties of, and

effectively substitute for the judgment of, the trier of fact and the responsibility of the

Court to instruct the trier of fact on the law.” United States ex rel. Mossey v. Pal-Tech,

Inc.,

(D.D.C. 2002).2

The Burkhart court did note that “the line between an inadmissible legal

conclusion and admissible assistance to the trier of fact in understanding the evidence . . .

is not always bright.” Burkhart,

. One method of distinguishing if expert

testimony crosses the line into inadmissible legal conclusions is whether the words used

by the expert have “specialized meaning in the law different from that present in the

vernacular.” Id.; see also Mossey,

. If the words do have a different

meaning, they should be excluded; as aptly stated by the court in Burkhart: “[A]n expert

may offer his opinion as to facts that, if found, would support a conclusion that the legal

standard at issue was satisfied, but he may not testify as to whether the legal standard has

been satisfied.” Burkhart, 112 F.3d at 1212–13 (emphasis added).

b. Discussion

1. Qualification

Neither party has brought into dispute Mr. Metcalfe’s qualifications. Indeed, defendant

DOJ expressly notes that Mr. Metcalfe has extensive experience litigating cases under the

Freedom of Information Act and the Privacy Act. (See Def. Dep’t of Justice’s Mot. to Strike the

Expert Designation and Report of Daniel J. Metcalf [156] at 4.) Thus, based on the defendant’s

1 See also In Re Initial Pub. Offering Sec. Litig.,

(S.D.N.Y. 2001) (citing cases from every circuit arriving at the same conclusion). 2 For this case, this Court is the trier of fact. This does not change the calculus of whether an expert witness offering legal conclusions should be stricken. (See Def. Dep’t of Justice’s Mot. to Strike the Expert Designation and Report of Daniel J. Metcalf [156] at 3 n.2.)

3 failure to adduce evidence that would question Mr. Metcalfe’s qualifications,3 the first prong of

the Burkhart test has been satisfied.

2. Ability to Assist the Trier of Fact

Though Mr. Metcalfe is qualified in the underlying subject matter, this Court finds that,

based on the information contained in his report and his proposed testimony, any testimony

given would not be factual assessments but legal conclusions that are inadmissible.

This Court agrees with the defendants that the bulk of Mr. Metcalfe’s Declaration is

nothing more than a legal analysis of the Privacy Act and a legal conclusion that the actions of

the defendants amounted to a violation of that Act. As the plaintiff readily admits, numerous

paragraphs of Mr. Metcalfe’s Declaration come to explicit legal conclusions. (Pl.’s Opp’n to

Def.’s Mot. to Strike the Expert Designation and Report of Daniel J. Metcalfe [168] at 8

(describing paragraphs 10, 11, 13 and footnote 6).) Despite this concession by plaintiff, the

argument is made that such statements, even if explicit legal conclusions, are harmless and this

Court should not treat them as grounds for striking Mr. Metcalfe. (See id.) Plaintiff is mistaken

about the standard for expert witness testimony though—the standard is not that experts may

testify and offer legal conclusions as long as such testimony would only amount to harmless

error, the standard is that expert witnesses may not testify and offer legal conclusions at all. Cf.

Burkhart, 113 F.3d at 1214 (noting that an appellate court will not reverse the trial judge’s

erroneous allowance of expert testimony if the error is harmless).

Further, as defendants point out in their reply, plaintiff’s reliance on SEC v. Johnson,

(D.D.C 2007), is entirely misplaced. In Johnson, the court allowed an expert to

3 Defendants do assert that Mr. Metcalfe “has no expertise that could lead to an admissible expert opinion of any of [the] factual issues,” but this is a somewhat limited argument because their claim ultimately boils down to Mr. Metcalfe only offering legal conclusions rather than factual assessments. (Dep’t of Justice’s Reply in Supp. of its Mot. to Strike the Expert Designation and Report of Daniel J. Metcalfe [169] at 4.)

4 testify about the general standards followed by accountants and how the procedures used to meet

those standards.

. Beyond this limited role accorded to the expert—especially as the

average juror will not be familiar with these standards when determining a disputed factual

issue—the court went no further.

.4

This Court is inclined to agree with defendant that Mr. Metcalfe offers no contents of

standards, customs, or procedures to be applied; instead, Mr. Metcalf “jumps straight to the

conclusion” that legally, a violation of the Privacy Act has occurred. (See Dep’t of Justice’s

Reply in Supp. of its Mot. to Strike the Expert Designation and Report of Daniel J. Metcalfe

[169] at 8, 9 n.5.) Finally, this Court will not entertain plaintiff’s request to re-draft Mr.

Metcalfe’s report to transform it from inadmissible legal conclusions to admissible factual

information. (See Pl.’s Opp’n to Def.’s Mot. to Strike the Expert Designation and Report of

Daniel J. Metcalfe [168] at 8–9.) It is not the responsibility of this Court as gatekeeper to ensure

that expert reports through the door to admissibility; it is the responsibility of the parties to file

expert reports that, as written, are “not only relevant, but reliable” and that do not solely offer

legal conclusions. See Daubert v. Merrill Dow Pharms,. Inc.,

(1993). Even if

this Court followed through with plaintiff’s request, the resulting language of the report does not

change: the new, amended report merely states a legal conclusion that is inadmissible. (See Dep’t

of Justice’s Reply in Supp. of its Mot. to Strike the Expert Designation and Report of Daniel J.

Metcalfe [169] at 10.)5

4 Indeed, the court specifically disallowed any mention by the expert of a witness’s intent as that is clearly a question left to the jury; rather than aid the trier of fact in explaining the facts, such action would essentially “undertake to tell the jury what result to reach.”

at 78–79 (citing United States v. Duncan,

(2d Cir. 1994)). 5 Defendants’ in their reply specifically use paragraph 11 of Mr. Metcalfe’s report to reinforce the claim that Mr. Metcalfe’s report contains inadmissible legal conclusions even after excising the “offending” language. The other paragraphs, if amended in similar fashion, are not saved; the new, spliced text is no more fact-based than before.

5 II. CONCLUSION

For the foregoing reasons, defendant Department of Justice’s Motion to Strike the Expert

Designation and Report of Daniel J. Metcalfe [156] will be GRANTED and the expert

designation and report of Daniel J. Metcalfe shall be stricken.

.

A separate order shall issue this date.

Date

February 26, 2010.

_________/s/_____________ ROYCE C. LAMBERTH Chief Judge United States District Court

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