Bill Barrett Corporation v. YMC Royalty Company , 918 F.3d 760 ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH March 7, 2019
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
BILL BARRETT CORPORATION,
Plaintiff - Appellee,
v. No. 18-1067
YMC ROYALTY COMPANY, LP;
YBC MANAGERS, LLC; and
BAYSHORE ROYALTY, LP,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:15-CV-02177-DME)
Jennifer Lynn Peters (Timothy Ryan Odil with her on the briefs), Otis Bedingfield
& Peters, LLC, Greeley, Colorado, for Appellants.
Andrew K. Glenn (Karen L. Spaulding with him on the brief), Beatty & Wozniak,
P.C., Denver, Colorado, for Appellee.
Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
PER CURIAM.
The Bill Barrett Corporation and YMC Royalty Company are experienced
oil and gas companies with mineral rights in northeastern Colorado. In 2013, they
had the opportunity to jointly develop two oil wells. To facilitate the drilling
operations, YMC executed documents authorizing joint expenditures, accepting
responsibility for costs, and electing to participate and share in the revenues. But
after depositing nearly $150,000 in revenues, YMC asserted it had never entered
into an enforceable joint operating agreement with Barrett and declined to pay its
share of the costs. Barrett sued for breach of contract. A jury ultimately found in
favor of Barrett. The district court denied YMC’s motions for judgment as a
matter of law and for a new trial, and this appeal followed.
We conclude the parties formed an enforceable contract under Colorado
law and a reasonable jury could conclude the parties should be held to their
bargain. We also hold the district court properly exercised its gatekeeper
functions for the admission of expert testimony and did not abuse its discretion in
excluding YMC’s expert witness. Finally, we hold the district court’s comments
during the exclusion of YMC’s expert witness did not improperly influence the
jury.
I. Background
To further the development of drilling operations in Colorado’s
Greasewood Flats oil field, Barrett sent a proposal to YMC in January 2013. Ijaz
Rehman, controller of YMC, executed Barrett’s proposal letter and the attached
“Authorization for Expenditure” form (AFE) for the Greasewood 11-21H Well.
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The proposal letter provided that Barrett “is hereby offering [YMC] an
opportunity to participate in the [11-21 Well] . . . by paying your proportionate
share of the costs.” App. 3638. The letter further stated if YMC elected to
participate, it must “indicate [its] approval by signing in the space provided below
and as provided on the AFE.” Id. Once participation was confirmed, Barrett
would then furnish its “proposed form of Joint Operating Agreement for your
review and approval.” Id.
The space provided on the proposal letter listed three options. Mr. Rehman
checked the box “I/we elect to participate in the drilling of the Greasewood 11-
21H Well. Enclosed is my/our signed AFE.” Id. at 3639. Mr. Rehman then
signed the signature block, initialed the AFE on the first and last pages, and
notarized the instrument. The AFE listed the total estimated cost of the 11-21
Well and YMC’s proportionate share of those costs based on a proposed 12.5%
working interest.
About two months later, Mr. Rehman executed a second proposal letter and
AFE pertaining to the Greasewood 10-20 Well. This time, Barrett’s proposal
offered an 18.75% working interest in the Well. The documents contained
substantially the same terms as previously, but additionally emphasized that,
“[w]hile this is an estimate and actual costs may be higher or lower, execution of
the AFE constitutes agreement to pay the actual costs. We understand that you
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will tender your share of the costs outlined in the AFE at the time the well is
commenced.” Id. at 3654. Once again, Mr. Rehman signed the signature block,
initialed the AFEs, and notarized the instrument.
In August 2013, YMC executed two division orders that listed YMC as
owning 12.5% of the working interest in the 11-21 Well and 18.75% in the 10-20
Well. Internal YMC communications introduced at trial also indicated that YMC
believed it owned a working interest in both wells. Most tellingly, Barrett sent
monthly revenue checks and statements to YMC from September 2013 to July
2014 for YMC’s ownership interests in the wells. YMC ultimately deposited
$148,165.26 in revenue. In July 2014, however, the relationship deteriorated.
Barrett ceased paying YMC when it learned YMC refused to pay its share of the
costs and denied the existence of a contract. Barrett sued YMC for breach of
contract.
The jury found YMC breached its contracts and awarded Barrett damages.
Following the trial, YMC renewed its motion for judgment as a matter of law and
moved for a new trial, arguing there was insufficient evidence indicating
contractual formation, AFEs are unenforceable as a matter of law, and no
reasonable jury could find mutual assent to contract. YMC also argued the court
committed reversible error in excluding its expert witness on industry custom and
practice (while allowing Barrett’s expert witness) and in making unfair comments
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about the expert’s qualifications before he was excluded. The district court
denied the motions and YMC appealed.
II. Analysis
We first consider whether the parties formed an enforceable contract under
Colorado law and whether sufficient evidence supported the jury verdict for
Barrett. We then consider whether the district court erred in excluding YMC’s
expert witness testimony from trial.
A. Contract Formation
As a federal court sitting in diversity, we apply Colorado contract law to
this dispute. See Specialty Beverages, L.L.C. v. Pabst Brewing Co., 537 F.3d
1165, 1175 (10th Cir. 2008). We “look to the rulings of the highest state court”
to guide our interpretation of state law. Stickley v. State Farm Mut. Auto. Ins.
Co., 505 F.3d 1070, 1077 (10th Cir. 2007). When the highest state court has not
addressed the question, we predict how it would rule after giving “proper regard
to relevant rulings of other courts of the State.” Id. (internal quotation marks
omitted).
First, YMC argues that AFEs cannot be enforceable contracts as a matter of
law and that the instrument contained language too indefinite to constitute a
contract under Colorado law. Second, YMC says the evidence introduced at trial
was insufficient to indicate mutual assent. We disagree on both points.
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1. Motion for Judgment as a Matter of Law
“We review a district court’s denial of a Rule 50 motion de novo, applying
the same standards as the district court.” Home Loan Inv. Co. v. St. Paul Mercury
Ins. Co., 827 F.3d 1256, 1261 (10th Cir. 2016). “A party is entitled to [judgment
as a matter of law] only if the court concludes that all of the evidence in the
record reveals no legally sufficient evidentiary basis for a claim under the
controlling law.” Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237, 1244
(10th Cir. 2009) (cleaned up). The court draws “all reasonable inferences in
favor of the nonmoving party” and does not “weigh evidence, judge witness
credibility, or challenge the factual conclusions of the jury.” Id. (internal
quotation marks omitted). Judgment as a matter of law is “cautiously and
sparingly granted and then only when the court is certain the evidence
conclusively favors one party such that reasonable men could not arrive at a
contrary verdict.” Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996)
(internal quotation marks omitted).
The Colorado Supreme Court has held that “[a]lthough generally, the
question of whether a contract exists is a matter of fact to be determined by the
jury, this is only the case where the evidence is conflicting or admits of more than
one inference.” N.Y. Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 409 (10th
Cir. 1996) (internal quotation marks omitted) (citing I.M.A., Inc. v. Rocky
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Mountain Airways, Inc., 713 P.2d 882, 887 (Colo. 1986)). The “parties do not
dispute what happened,” but rather disagree about “what legal significance, if
any, can be attached to the relevant events.” Id. at 410. For us to rule as a matter
of law, YMC must demonstrate that the evidence of contractual formation does
not conflict or admit of more than one inference.
Colorado law requires parties to agree on all essential terms to form a
contract. See Fed. Lumber Co. v. Wheeler, 643 P.2d 31, 36 (Colo. 1981). Such
terms “must be sufficiently definite to enable the court to determine whether the
contract has been performed or not.” Stice v. Peterson, 355 P.2d 948, 952 (Colo.
1960). “[W]hen the language in a contract is too uncertain to gather from it what
the parties intended, the courts cannot enforce it.” Id. We construe the proposal
letters and AFEs together “as though they comprise[] a single document.”
Chambliss/Jenkins Assocs. v. Forster, 650 P.2d 1315, 1318 (Colo. App. 1982);
see also E. Ridge of Fort Collins, LLC v. Larimer & Weld Irr. Co., 109 P.3d 969,
975 (Colo. 2005).
YMC argues the documents lack essential terms, such as when the
obligation to pay arises, how payment is to be made, and the terms of payment,
relying on Stice v. Peterson, 355 P.2d at 952 (identifying these terms as relevant
for determining the existence of an alleged oral contract). But Stice does not
require precise terms related to payment to prove the formation of a valid
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contract. Stice only requires a contract to be sufficiently definite for a court to
determine whether the parties performed. The contract in Stice was too
ambiguous, since even the plaintiff “was completely uncertain as to what was
actually said by the defendant.” 355 P.2d at 952.
Here, by contrast, sufficient evidence exists to support a finding by a
reasonable jury that the proposal letters and AFEs were sufficiently definite to
constitute binding contracts under Colorado law. First, the proposal letters and
AFEs contain characteristic contractual language of offer and acceptance,
consideration, and terms of performance. The second proposal letter even stated
that “execution of the AFE constitutes agreement to pay the actual costs.”
App. 3654. It also identified when the obligation to pay arises. The documents
are labeled “Authorization for Expenditure” and Mr. Rehman executed them with
formalities such as signature, initialing, and notarization. YMC is a sophisticated
party and is expected to understand the terms contained in the proposal letters and
AFEs. On their own terms, the proposal letters and AFEs were sufficiently
definite for a reasonable jury to infer the existence of a contract and for a court to
determine whether the parties performed their obligations.
Second, besides the actual language of the documents, the existence of a
contract may also be inferred from “circumstantial evidence” of the parties’
“conduct rather than in any explicit set of words.” Agritrack Inc. v. DeJohn
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Housemoving, Inc., 25 P.3d 1187, 1193 (Colo. 2001). From its course of
performance, YMC understood the cost estimate and its proportionate share of the
costs and benefits. It also recorded its working interest and accepted associated
revenues. Mr. Rehman even acknowledged at trial that he knew YMC was on the
hook for its share of the costs. The parties’ course of performance may admit of
more than one inference, which only serves to underscore the conclusion that the
existence of the contract was a fact question appropriate for the jury.
Third, a “contract will not fail for indefiniteness if missing terms can be
supplied by law, presumption or custom.” Winston Fin. Grp., Inc. v. Fults Mgmt.,
Inc., 872 P.2d 1356, 1358 (Colo. App. 1994); see also Shull v. Sexton, 390 P.2d
313, 316 (Colo. 1964). Testimony in the district court established it is customary
for a party to pay costs before receiving revenues; obligations may be incurred
without a joint operating agreement; statements and revenues are sent monthly
without a joint operating agreement; and working interest ownership determines
the share of actual costs. The evidence considered by the jury could therefore
supply any missing terms related to payment and performance.
In response, YMC points to two cases. First, it relies on dicta in Cleverock
Energy Corp. v. Trepel, 609 F.2d 1358 (10th Cir. 1979), where we upheld a
district court’s finding that an AFE in that case was “an estimate of costs without
binding effect in the [oil and gas] industry,” id. at 1360. In a subsequent case
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citing Cleverock, the Fifth Circuit also opined that “the AFEs at bar do not, on
their faces, create a legally binding obligation . . . to pay a share of the drilling,
completion, and sidetrack expenses.” Sonat Expl. Co. v. Mann, 785 F.2d 1232,
1235 (5th Cir. 1986). Relying on these cases, YMC says that AFEs cannot be
contracts, as a matter of law, without a joint operating agreement.
But Cleverock did not question whether an AFE containing cost estimates
binds the executing party to pay the costs once incurred. Rather, it addressed
whether the amount was fraudulently represented on the AFE and the amount the
signatory was obligated to pay. See Cleverock, 609 F.2d at 1360. The Cleverock
court’s statement that AFEs are “without binding effect in the industry” simply
restated the district court’s factual findings about industry practice; we did not
announce a per se legal rule about the non-binding effect of AFEs.
Nor does Sonat persuasively advance YMC’s argument. There, the Fifth
Circuit concluded that the AFEs under consideration, standing alone, did not
constitute contracts because they lacked a promise to pay costs and because the
court found no jurisprudential support indicating that AFEs, without more, were
binding contracts. See Sonat, 785 F.2d a 1234–35. Here, however, the AFEs do
not stand alone—they are construed alongside the proposal letters. See E. Ridge
of Fort Collins, 109 P.3d at 975; Forster, 650 P.2d at 1318. The proposal letters
contain a promise to pay costs and Mr. Rehman testified he understood that
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obligation. Moreover, trial testimony indicated that these AFEs—alongside the
proposal letters—constituted binding contracts. Because the evidence admits of
more than one inference about the existence of the contracts, it was proper for the
jury to decide the question.
No doubt execution of the joint operating agreement would have added
additional terms with greater specificity and detail to the contract. And the
proposal letters did state that Barrett would furnish YMC with a joint operating
agreement if it elected to participate. But based on the terms of the documents
and the conduct of the parties, the district court did not err in denying YMC’s
motion for judgment as a matter of law. The execution of a joint operating
agreement in this instance would have simply added additional operating terms to
the existing ownership agreement between the parties, none of which were in
dispute at trial.
2. Sufficiency of the Evidence
Next, YMC argues there is no sufficient evidentiary basis for a reasonable
jury to find for Barrett on its breach of contract claim and therefore the district
court erred in denying its motion for a new trial. According to Mr. Rehman’s
testimony at trial, it was YMC’s intention to sign the cost estimates without
entering into a binding agreement. It was YMC’s understanding that a binding
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agreement to pay costs required a signed joint operating agreement, and that the
signed proposal letters and AFEs were only an agreement to negotiate further.
According to Colorado law, “[w]hether or not the parties have completed
their negotiations . . . is always dependent upon the circumstances of the
particular case.” Am. Min. Co. v. Himrod-Kimball Mines Co., 235 P.2d 804, 807
(Colo. 1951); see also DiFrancesco v. Particle Interconnect Corp., 39 P.3d 1243,
1248 (Colo. App. 2001) (“[T]here can be no binding contract if it appears that
further negotiations are required to work out important and essential terms.
Agreements to agree in the future are generally unenforceable.” (citations
omitted)).
We closely scrutinize correspondence between the parties to determine
whether “such letters are intended merely as preliminary negotiation.” N.Y. Life
Ins., 80 F.3d at 409 (quoting Pierce v. Marland Oil Co., 278 P. 804, 806 (Colo.
1929)). “The essential question is: ‘Did the parties mean to contract by their
correspondence, or were they only settling the terms of an agreement into which
they formally proposed to enter after all its particulars had been adjusted, and by
which alone they intended to be bound?’” Id. (quoting Pierce, 278 P. at 806). “If
possible, the parties’ intent is to be determined from the face of the contract
itself.” Id.
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Interpreting the parties’ intent from the face of the documents, however, we
find there is language that can be interpreted by a reasonable jury as that of offer
and acceptance. See Mestas v. Martini, 155 P.2d 161, 167 (Colo. 1944) (Mutual
assent is “arrived at by a clear and explicit acceptance of a proper and unrevoked
offer.”). The proposal letters offered participation, defined participation as
YMC’s agreement to pay its share of the costs, and prescribed the exact manner
of acceptance. Although the documents referred to the future negotiation and
execution of a joint operating agreement, a reasonable jury could conclude the
language did not condition YMC’s participation on the execution of the joint
operating agreement.
Furthermore, Mr. Rehman’s trial testimony indicates he understood the
obligation incurred by electing to participate in the wells. See App. 1705–07.
His testimony also demonstrates knowledge that multiple working owners may
participate in a well without a joint operating agreement. See id. at 1692–93.
YMC’s actions following the execution of the documents also suggests the
existence of mutual assent: YMC executed division orders confirming its working
interest ownership and deposited nearly $150,000 in revenue checks from Barrett
for the wells. Mr. Rehman affirmed at trial he would not have executed the
division orders if they did not accurately reflect YMC’s ownership interest in the
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wells. Finally, evidence admitted at trial of industry custom and practice tended
to show mutual assent between the parties.
The evidence was therefore sufficient for a reasonable jury to conclude the
parties had entered into a binding contract and that the proposal letters and AFEs
were not simply agreements to agree. The jury’s conclusion was not decidedly or
overwhelmingly against the weight of the evidence. See Elm Ridge Expl. Co.,
LLC v. Engle, 721 F.3d 1199, 1216 (10th Cir. 2013) (“In deciding a new trial
motion based on insufficiency of the evidence, a district court must analyze
whether the verdict is clearly, decidedly or overwhelmingly against the weight of
the evidence.” (internal quotation marks omitted)).
Thus, the district court did not abuse its discretion in denying YMC’s
motion for a new trial. See id. (reviewing a district court’s denial of a Rule 59(a)
motion for abuse of discretion).
B. Expert Testimony
YMC also appeals the exclusion of its expert witness on industry custom
and practice, contending that the district court’s ruling prevented it from
obtaining a fair trial. First, YMC argues the court should have allowed the
testimony of its expert under Federal Rule of Evidence 702 and Daubert v.
Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Second, YMC argues
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that in excluding its expert in open court, the district court prejudiced the jury
against it.
Prior to trial, YMC proffered a Denver oil and gas attorney, Randall
Feuerstein, as an expert witness on custom and practice in the oil and gas
industry. 1 Barrett moved in limine to exclude Mr. Feuerstein’s testimony,
alleging it contained unhelpful legal conclusions warranting exclusion under
Federal Rule of Evidence 702. The district court granted the motion in part, but
tentatively allowed Mr. Feuerstein to testify at trial on industry custom and
practice.
At trial, YMC called Mr. Feuerstein to testify. Following a lengthy voir
dire examination of Mr. Feuerstein’s credentials and proposed testimony, the
district court orally ruled in front of the jury that YMC had not satisfied its
burden under Rule 702 to provide relevant and reliable testimony that would be
helpful to the jury. YMC objected that the court should not have made its Rule
702 ruling in front of the jury, and moved for mistrial. The district court denied
the motion but nevertheless issued a curative instruction to clarify that the jury
should not draw any inference regarding the weight of the evidence from its
comments or from Mr. Feuerstein’s exclusion.
1
For reasons not relevant here, Judge Jackson presided over the pretrial
proceedings while Judge Ebel presided at trial.
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1. Admission of Expert Testimony Under Rule 702
Federal Rule of Evidence 702 requires the district court to “ensur[e] 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. 2 Under Rule 702, the court must first decide
whether the proffered expert is qualified “by knowledge, skill, experience,
training, or education” to render an opinion. See Fed. R. Evid. 702. Then “the
court must determine whether the expert’s opinion is reliable by assessing the
underlying reasoning and methodology, as set forth in Daubert.” United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc). “Where an expert
testifies based on experience, the tribunal reviews the reliability of the testimony
with reference to ‘the nature of the issue, the expert’s particular expertise, and the
subject of the testimony.’” F & H Coatings, LLC v. Acosta, 900 F.3d 1214, 1222
2
Rule 702 provides four factors relating to relevance and reliability. It
states that an expert may testify if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
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(10th Cir. 2018) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
148–50 (1999)).
The court, when faced with a party’s objection, must “adequately
demonstrate by specific findings on the record that it has performed its duty as
gatekeeper.” United States v. Avitia-Guillen, 680 F.3d 1253, 1256 (10th Cir.
2012). “This gatekeeper function requires the judge to assess the reasoning and
methodology underlying the expert’s opinion, and determine whether it is
scientifically valid and applicable to a particular set of facts.” Goebel v. Denver
& Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).
Although the gatekeeper obligation is mandatory, “[i]t is within the
discretion of the trial court to determine how to perform its gatekeeping function
under Daubert.” Id. A Daubert hearing is “not specifically mandated” and a
judge may fulfill his gatekeeper obligation when asked to rule “on an objection
during trial . . . so long as the court has sufficient evidence to perform the task”
of ensuring reliability and relevance. Id. (internal quotation marks omitted).
Before trial, Barrett moved to exclude Mr. Feuerstein, claiming his
testimony would constitute inadmissible legal opinions and therefore not be
helpful to the jury. YMC countered that his opinions were admissible because
they were based on industry custom and practice and would help the jury interpret
the AFEs and allocation agreements. The district court held a pretrial hearing and
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granted Barrett’s motion in part, drawing a line between impermissible opinion
testimony on legal matters and permissible industry custom and practice
testimony:
[The expert witness cannot] come in here and tell me and tell the jury
how to decide the case, what the law is, and how it should be
applied. As helpful as that might be, . . . that’s not his role. That’s
my role, and we won’t have a lawyer preaching to the jury about the
law.
App. 1384. But the court “tentatively” permitted Mr. Feuerstein to “express
opinions on custom and practice in the industry” to the extent such opinions were
relevant. Id. The court then identified specific opinions in Mr. Feuerstein’s
expert report that would be “potentially admissible,” including the industry
custom and importance of joint operating agreements for allocating costs, pooling
processes, and the meaning of terms in the AFEs and division orders. Id.Implicitly, the court determined that any testimony drawing legal
conclusions would not help the jury determine a fact in issue and therefore would
not be relevant. See Fed. R. Evid. 702(a) (requiring that the “specialized
knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue”); see also Pioneer Ctrs. Holding Co. ESOP & Trust v. Alerus Fin.,
N.A., 858 F.3d 1324, 1342 (10th Cir. 2017) (testimony that makes “impermissible
legal conclusions” may be excluded because it “does not aid the jury in making a
decision, but rather attempts to substitute the expert’s judgment for the jury’s”
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(cleaned up)). Despite its brevity, the district court’s determination provides an
adequate basis for this court to determine that it applied the correct legal test at
this point in the proceedings. Cf. Avitia-Guillen, 680 F.3d at 1256 (upholding a
similarly concise ruling).
At trial, YMC offered Mr. Feuerstein as an expert witness on “oil and gas
industry custom and practice in Colorado regarding partnering in joint operations
for oil and gas development, industry custom and practice in Colorado regarding
pooling and pooling declarations, and industry custom and practice regarding
forced pooling.” App. 3290–91. At that point, the court allowed Barrett to
conduct voir dire. After its questioning, Barrett argued YMC failed under Rule
702 to establish Mr. Feuerstein’s “expertise in the oil and gas industry custom and
practice as it relates to the use of joint operating agreements.” Id. 3301–02. The
district court then permitted YMC to further bolster the basis for Mr. Feuerstein’s
opinions before concluding that YMC failed to “establish[] that [Mr. Feuerstein]
meets the criteria for Rule 702 to provide expert testimony,” id. 3313.
The court made findings on both the relevance and reliability inquiries
required by Daubert and identified the reasons for excluding Mr. Feuerstein under
each of the four Rule 702 factors. Specifically, the court doubted “this witness’s
testimony will be helpful to the jury in deciding the ultimate facts” because “the
jury has sufficient facts and evidence to make those decisions for itself”; the court
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disputed whether Mr. Feuerstein “has established unique facts or data pertaining
to this case that are unique sufficient to qualify him as an expert”; the court
“found nothing in [Mr. Feuerstein’s] expert report that was tendered that even
mentions principles or methods, no criteria and principles by which his opinion
could be measured”; and the court determined Mr. Feuerstein had not
“sufficiently and reliably applied those principles and methods to the fact of this
case.” App. 3313–15.
YMC argues the court abused its discretion in the way it resolved the
challenges to YMC’s expert. First, YMC says the court should have conducted a
more robust pretrial hearing on reliability and relevance of the proposed
testimony. But the court was not required to hold a formal Daubert hearing at
that time. See Goebel, 215 F.3d at 1087 (explaining the court’s discretion in its
manner of fulfilling the gatekeeper function).
Second, YMC contends the district court’s manner of exercising the
gatekeeper function (namely, by holding an impromptu Daubert hearing in front
of the jury) was an abuse of discretion. But a judge does not abuse his discretion
by conducting a Daubert hearing in the presence of the jury through direct
examination and voir dire. See Goebel, 215 F.3d at 1087; see also 29 Charles
Alan Wright et al., Fed. Prac. & Proc. Evid. § 6270 (2d ed., Nov. 2018 update)
(The “trial court could decide to forego a formal Daubert hearing outside the
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presence of the jury. In lieu of such a hearing, the court could conduct a voir dire
examination of the witness or permit the proponent of the expert testimony to
establish the necessary foundation on direct examination, through affidavits, or in
other ways.” (footnotes omitted)). The district court’s decision to hold an
informal Daubert hearing in front of the jury was therefore not an abuse of
discretion.
Finally, YMC contends the district court’s trial decision to exclude all of
Mr. Feuerstein’s testimony was an abuse of discretion. But YMC does not
explain precisely how the court abused its discretion in excluding Mr. Feuerstein
except by reiterating its claim that Mr. Feuerstein is a qualified expert. No one
disputes Mr. Feuerstein is a well-respected and experienced oil and gas attorney.
But reasonable minds could disagree about whether his proposed testimony would
have been helpful to the jury in deciding the ultimate facts. And other than
reiterating its claim that Mr. Feuerstein had specialized expertise, YMC fails to
rebut the other three Rule 702 bases for the district court’s ruling, even though it
would have to succeed on all four to prevail. Nowhere in its opening brief does
YMC explain with any specificity what evidence its expert would have provided
to the jury, nor does it set forth in any detail the factual basis for the proposed
testimony, the methodology by which it was developed, or its application to the
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facts of the case. Without these arguments, we cannot evaluate, let alone reverse,
the reasoning of the district court.
Our review “will not disturb the [exclusion of an expert] unless it is
arbitrary, capricious, whimsical or manifestly unreasonable, or we are convinced
that the district court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” Nacchio, 555 F.3d at 1241 (internal
quotation marks omitted). Given the circumstances here, the district court did not
abuse its discretion.
2. Improper Influence on the Jury
Finally, YMC contends the district court improperly influenced the jury in
its comments excluding Mr. Feuerstein’s testimony. In particular, it objects to the
court’s comment that “the evidence that has already been before this jury is
sufficient for the jury to be able to address these issues and [they] will not need
an opinion from an outside source on those subjects.” App. 3314. YMC contends
this statement amounted to an endorsement of Barrett’s expert witness testimony,
which the jury had heard the day before and which YMC had not objected to.
YMC argues the court thus usurped the fact-finding role of the jury and the only
proper recourse is a mistrial.
We review de novo the district judge’s comments on the evidence. See
United States v. Nickl, 427 F.3d 1286, 1293 (10th Cir. 2005). “We review denial
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of a mistrial for abuse of discretion.” N. Am. Specialty Ins. Co. v. Britt Paulk Ins.
Agency, Inc., 579 F.3d 1106, 1112 (10th Cir. 2009).
“[W]e have explained that a federal district court judge has the
unquestioned right to comment reasonably upon the evidence, and to express his
opinion of it, provided it is made clear to the jury that it is not bound by his views
and that they are the sole judges of the facts.” United States v. Olea-Monarez,
908 F.3d 636, 640 (10th Cir. 2018). A judge’s statements must not “prevent a fair
and dispassionate consideration of the evidence by the jury.” United States v.
Sowards, 339 F.2d 401, 403 (10th Cir. 1964).
After the court’s ruling excluding Mr. Feuerstein’s expert testimony, the
court briefly recessed. Before the jury returned, YMC objected that the court
should not have allowed the Rule 702 proceeding to be conducted in front of the
jury. The court observed that YMC never asked it to make its Rule 702 findings
outside the presence of the jury. The court therefore denied the motion for a
mistrial. Nevertheless, upon the jury’s return from recess, the court agreed to
issue a curative instruction telling the jury not to draw any inference regarding the
weight of the evidence from its exclusion of Mr. Feuerstein’s testimony. 3
3
The curative instruction stated:
My ruling on the whether Mr. Feuerstein was an expert or not was
addressed entirely to whether he had the unique experiences that
(continued...)
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We do not think the court’s comments improperly influenced the jury for
two reasons. First, the court’s statement occurred in the context of its evaluation
of Mr. Feuerstein’s qualifications to opine on oil and gas custom and practice.
The court’s statement should be read in that context: Mr. Feuerstein’s
“specialized knowledge” would not “be helpful to the jury in deciding the
ultimate facts” because the court reasonably determined his testimony failed to
meet all of the requirements of Rule 702. In this context, the district court’s
comments on the evidence were reasonable.
3
(...continued)
would qualify him as an expert under the four very precise criteria of
Rule 702. It has nothing to do with the merits of the case. I didn’t
address the merits of the case. I truly don’t have an opinion on the
merits of the case. You have heard the evidence from two very fine
lawyers, and you are going to have to decide that. My question was
only whether this expert had some unique expert skills that could be
brought to bear that would be helpful to you, over and above what
the evidence showed, that you would need his assistance. And my
ruling was exclusively and limited to the fact that this particular
witness I did not think had the—met the four criteria that I must
apply to determine that he had unique skills to testify in a way that
would be helpful to you, over and above everything else you have
heard. So I just wanted to be very clear that I am making no
comment on this case and truly to assure you that I do not have an
opinion on the outcome of this case. That’s your prerogative, not
mine. And for that reason, because I don’t have to have an opinion, I
truly have not formed an opinion.
App. 3324–25.
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Second, the court’s curative instruction clarified that it held no view about
the persuasive value or impact of the evidence—its determination was limited to
the qualifications of the proffered expert witness. See Olea-Monarez, 908 F.3d at
640 (“The district court made no comment regarding the persuasive value or
impact of any evidence presented in the case. In essence, the district court told
the jury to go back and look at the evidence, which it was well within its
discretion to do.”). “We have held curative instructions—issued promptly . . . and
specifically addressing the precise impropriety complained of—can go far in
erasing prejudice occasioned by an improper remark.” Whittenburg v. Werner
Enters. Inc., 561 F.3d 1122, 1131 (10th Cir. 2009). Given the context, including
the court’s prompt and precise curative instruction and YMC’s failure to object to
Barrett’s expert witness, we cannot assume the court’s comments during the
Daubert hearing improperly lent weight to Barrett’s evidence at YMC’s expense.
We therefore conclude that the court’s comments during the Daubert
hearing held before the jury did not prevent a fair and dispassionate consideration
of the evidence. Furthermore, we find that the court’s curative instruction
clarified and averted any improper inference jurors might have derived from its
remarks. Because it does not “clearly appear that the challenged remarks
influenced the verdict,” denying the motion for mistrial was not an abuse of
discretion. See Britt Paulk, 579 F.3d at 1112.
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III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court
on all issues presented.
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