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Mamani v. Berzain

United States District Court, S.D. Florida

February 22, 2018

ELOY ROJAS MAMANI, et al., Plaintiffs,


          JAMES I. COHN, JUDGE

         THIS CAUSE is before the Court upon Defendants' Motion to Exclude the Testimony of Daniel M. Goldstein [DE 359 in Case No. 07-22459; DE 336 in Case No. 08-21063] (“Motion”).[1] The Court has considered the Motion, Plaintiffs' Response and Defendants' Reply, the parties' related submissions, and the record in these cases, and is otherwise advised in the premises. For the reasons stated below, Defendants' Motion is granted in part and denied in part.


         Plaintiffs proffer Daniel M. Goldstein, a cultural anthropologist, as an expert on the culture and history of Bolivia's indigenous populations. See Defendants' Ex. A ¶¶ 1-3 (Opening Expert Report of Daniel M. Goldstein (“Goldstein Report”)).[3] Dr. Goldstein is a professor of anthropology at Rutgers University. Id. ¶ 7. He has spent many years studying Bolivia and has “authored or edited four books on Bolivia, law, politics, violence, human rights, and social protest.” Id. ¶ 9. His expert opinions are summarized below:

1. “The [2003 protests] w[ere] part of Bolivia's culture of protest-a long history of demonstration against and resistance to the dominance of minority rule over the indigenous majority in Bolivia.” DE 378 at 3 (citing Goldstein Report ¶¶ 13, 25-35).
2. “The [2003 protests] were not instigated, coordinated, or led by any one opposition leader, groups of leaders, or political party, but instead the organization of the demonstrations was decentralized and ‘local communities were the principal actors and decision makers' of the demonstrations.” Id. (citing Goldstein Report ¶¶ 13, 36-48).
3. “The [2003 protests] were largely economic in nature, and an ‘authentic popular uprising against economic inequality in Bolivia.'” Id. (citing Goldstein Report ¶¶ 13, 49-54).

         Put simply, Plaintiffs wish to have Dr. Goldstein opine on the unique “culture of protest” in Bolivia and, relatedly, “the way indigenous communities are decentralized and act independently to make decisions about joining protests.” Id. at 12. Such testimony would serve as his springboard to offer specific conclusory opinions about the nature and purportedly peaceful character of the protests in September and October 2003. See Goldstein Report ¶¶ 13, 25-35. For instance, Dr. Goldstein claims that “the techniques employed by protestors in the Gas War-use of dynamite and road blockades most prominently-are common features of protest . . . . [E]x-miners use dynamite (always present as a tool in mine work) not as a weapon but as a kind of public address system.” Id. ¶ 35. And he considers it “highly unlikely that many protestors had firearms, ” because “[i]n all [his] years in Bolivia, [he] ha[s] never seen or heard of a gun of any sort in a Bolivian home, and it is highly unlikely that firearms were widespread among protestors in the Gas War.” Id.

         Defendants move to preclude Dr. Goldstein's testimony for failing to satisfy the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. They offer three primary arguments, which track the Daubert elements. First, Defendants claim that Dr. Goldstein is not qualified to opine on the protests of September and October 2003, because his fact-specific conclusions about those events are not anthropological in nature. DE 359-1 at 5-7. Second, Defendants argue that Dr. Goldstein failed to observe an acceptable methodology in reaching his opinion, since, contrary to standard practice for cultural anthropologists, he performed no field work and instead relied exclusively upon secondary sources. Id. at 8-15. And third, Defendants contend that Dr. Goldstein's opinion would not prove helpful to the trier of fact, since the limited portion of the opinion that he is arguably qualified to offer-his general view of Bolivian history and culture-is irrelevant to the narrow issues in dispute, namely, whether the deaths of Plaintiffs' eight decedents meet the Torture Victim Protection Act's (“TVPA”) definition of an extrajudicial killing, and, if so, whether Defendants can be held vicariously liable for them. Id. at 16.

         Plaintiffs respond, inter alia, that cultural anthropology as a practice is broader than Defendants would characterize it, DE 378 at 4-6, that Dr. Goldstein's methodology was proper since he relied on both secondary sources and his own long history of studying Bolivia, id. at 9-11, and that Dr. Goldstein's opinion would aid the jury by providing important contextual background information, id. at 12.


         In applying Rule 702, [4] district courts are charged with “the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. This critical gatekeeping function “ensure[s] that speculative, unreliable expert testimony does not reach the jury under the mantle of reliability that accompanies the appellation ‘expert testimony.'” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (some internal quotation marks omitted). To perform this gatekeeping function, district courts engage in a “rigorous inquiry” to determine whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Id. at 1291-92. “The party offering the expert has the burden of satisfying each of these three elements by a preponderance of the evidence.” Id. at 1292.

         In addressing the reliability prong of the Daubert analysis, the Supreme Court has identified four factors that the district courts should consider: (1) whether the expert's methodology has been tested or is capable of being tested; (2) whether the theory or technique used by the expert has been subjected to peer review and publication; (3) whether there is a known or potential error rate of the methodology; and (4) whether the technique has been generally accepted in the relevant scientific community. United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013) (citing Daubert, 509 U.S. at 593-94). Yet, “these factors are not exhaustive and are intended to be applied in a ‘flexible' manner.” Id. (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).

         Finally, even expert testimony that passes muster under Rule 702 may be excluded if irrelevant or if “its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403; see Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309-10 (11th Cir. 1999). Because “expert testimony may be assigned talismanic significance in the eyes of lay jurors, ” a district court “must take care to weigh the ...

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