The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court
This matter comes before the Court on defendant Department of Justice's Motion to Strike the Expert Designation and Report of Daniel J. Metcalfe . 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.
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.
A. Designation of Daniel J. Metcalfe as an Expert Witness
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., 112 F.3d 1207, 1211 (D.C. Cir. 1997) (citing Exum v. Gen. Elec. Co., 819 F.2d 1158, 1163 (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'." Id. at 1212 (citing Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985)).*fn1 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., 231 F. Supp. 2d 94, 98 (D.D.C. 2002).*fn2
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, 112 F.3d at 1212. 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, 231 F. Supp. 2d at 98. 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).
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  at 4.) Thus, based on the defendant's failure to adduce evidence that ...