United States District Court, S.D. Florida
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO EXCLUDE TESTIMONY OF DANIEL M.
I. COHN, JUDGE
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”). 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.
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”)). 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
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).
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.
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.
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
applying Rule 702,  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.
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)).
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 ...