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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Miguel Corzo, 

Plaintiff, 

v. 

Maricopa County Community College 

District, et al., 

Defendants.

No. CV-15-02552-PHX-ESW

ORDER 

This Order sets forth the Court’s rulings on Defendants’ (i) “Notice of Motion and 

Motion for Daubert Hearing to Exclude the Testimony of Plaintiff’s Economic Expert 

Mark R. Hughes” (Doc. 221) and (ii) “Notice of Motion and Motion for Daubert Hearing 

to Preclude the Testimony of Plaintiff’s Expert Mark Kelman as to the Alleged Futility of 

Plaintiff’s Applying for Work in the IT Field” (Doc. 252). 

As the Court has previously explained (Doc. 207 at 1-2), the Court has a 

“gatekeeping responsibility” to ensure that expert testimony has “a reliable basis in the 

knowledge and experience of [the relevant] discipline.” Kumho Tire Co. Ltd. v. 

Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert v. Merrell Dow Pharm., 509 U.S. 

579, 592 (1993)). “This obligation does not, however, require the court to hold a separate 

Daubert hearing.” United States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000) 

(“Nowhere . . . does the Supreme Court mandate the form that the inquiry into reliability 

and relevance must take. . . .”); United States v. Jawara, 474 F.3d 565, 582-83 (9th Cir. 

WO
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2007). 

The Court has reviewed the briefing concerning Defendants’ “Notice of Motion and 

Motion for Daubert Hearing to Exclude the Testimony of Plaintiff’s Economic Expert 

Mark R. Hughes” (Doc. 221). Plaintiff asserts that “[b]ecause the collateral source rule 

applies to this case, Defendants’ Motion to Exclude Mark Hughes must be denied.” (Doc. 

335 at 2). In a separate Order, the Court denied Plaintiff’s Motion in Limine No. 1 (Doc. 

229) after concluding that the collateral source rule does not apply to Plaintiff’s receipt of 

payments from the Arizona State Retirement System. (Doc. 340 at 3). The Court finds 

that Mr. Hughes’ expert report is inadmissible at trial because its relevance is outweighed 

by the factors set forth in Fed. R. Evid. 403. The Court notes, however, that Defendants 

do not appear to be questioning Mr. Hughes’ qualifications, methods, or reliability, merely 

his conclusion that the collateral source rule applies to this case and his calculations made 

based upon that assumption. If necessary, counsel may voir dire Mr. Hughes at the time 

of trial regarding his knowledge and experience in his discipline as well as his 

methodology. If proper foundation is laid for Mr. Hughes’ qualifications and methodology 

within his discipline, his testimony will be admitted for calculations which are not based 

on the application of the collateral source rule. Defendants’ request for a pretrial Daubert

hearing is denied. See Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“Shaky but 

admissible evidence is to be attacked by cross examination, contrary evidence, and 

attention to the burden of proof, not exclusion.”) (citing Daubert, 509 U.S. at 596); 

Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998) (“Disputes as to the 

strength of [an expert’s] credentials, faults in his use of [a particular] methodology, or lack 

of textual authority for his opinion, go to the weight, not the admissibility, of his 

testimony.”) (internal quotation marks and citation omitted). Defendants may depose Mr. 

Hughes’ again prior to trial to determine these calculations. The Court will deny 

Defendants’ Motion (Doc. 221) to the extent set forth above. 

In its October 11, 2018 Order (Doc. 207), the Court denied Defendants’ “Motion in 

Limine to Preclude the Testimony of Plaintiff’s Expert Mark Kelman” (Doc. 154). The 
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Court subsequently dismissed the claim presented in Count I of the Second Amended 

Complaint, which alleged wrongful termination in violation of ARIZ. REV. STAT. § 23-

1501(A)(3)(c)(ii). (Doc. 208 at 4-6, 13). As Defendants’ “Notice of Motion and Motion 

for Daubert Hearing to Exclude the Testimony of Plaintiff’s Economic Expert Mark 

Kelman” (Doc. 252) correctly observes, there is no “whistleblower” claim at issue. 

Therefore, the Court will grant Defendants’ Motion (Doc. 252) to the following extent: Mr. 

Kelman is precluded from testifying regarding Plaintiff’s asserted status as a 

“whistleblower,” per se. The portions of Mr. Kelman’s report concerning causes of action 

which are dismissed are deemed inadmissible. The Court recognizes that Mr. Kelman’s 

research regarding termination may be relevant to Plaintiff’s cause of action under 42 

U.S.C. § 1983 based on an alleged violation of Plaintiff’s First Amendment rights. Plaintiff 

shall redact the report in conformity with the Court’s ruling. Defendants’ request for a 

pretrial Daubert hearing will be denied. Counsel may voir dire Mr. Kelman at the time of 

trial regarding his methodology and reliability. 

Based on the foregoing, 

IT IS ORDERED granting in part and denying in part Defendants’ “Notice of 

Motion and Motion for Daubert Hearing to Exclude the Testimony of Plaintiff’s Economic 

Expert Mark R. Hughes” (Doc. 221) as set forth herein. Mr. Hughes’ expert report is 

inadmissible at trial. Counsel may voir dire Mr. Hughes’ at trial. Defendants may depose 

Mr. Hughes prior to trial to determine his revised damages calculations which do not apply 

the collateral source rule. 

IT IS FURTHER ORDERED that Defendants’ “Notice of Motion and Motion for 

Daubert Hearing to Preclude the Testimony of Plaintiff’s Expert Mark Kelman as to the 

Alleged Futility of Plaintiff’s Applying for Work in the IT Field” (Doc. 252) is granted in 

part and denied in part as follows: Mark Kelman is precluded from testifying regarding 

Plaintiff’s asserted status as a “whistleblower,” per se. The portions of Mr. Kelman’s 

report concerning dismissed causes of action shall be redacted and provided to the Court 

for review. Counsel may voir dire Mr. Kelman at the time of trial. 
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IT IS FURTHER ORDERED setting a telephonic status conference for Friday,

February 1, 2019 at 2:00 p.m. for the Court and counsel to discuss the redacted report of 

Mr. Kelman. Plaintiff’s counsel shall provide a proposed redacted report to the Court and 

Defense counsel no later than January 25, 2019. Defense counsel shall initiate the 

conference call to Chambers. 

Dated this 17th day of January, 2019.