De La Cruz v. Virgin Islands Water & Power Authority , 597 F. App'x 83 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4623
_____________
AGUEDA SARANTE DE LA CRUZ, as Personal Representative for the Estate of Jose
De La Cruz
v.
VIRGIN ISLANDS WATER AND POWER AUTHORITY
v.
MARCO A. BLACKMAN
*LEE J. ROHN; LEE J. ROHN & ASSOCIATES, LLC
Appellants
*(Pursuant to Fed. R. App. P. 12(a))
_____________
No. 13-4673
_____________
AGUEDA SARANTE DE LA CRUZ, as Personal Representative for the Estate of Jose
De La Cruz,
Appellant
v.
VIRGIN ISLANDS WATER AND POWER AUTHORITY
v.
MARCO A. BLACKMAN
Appeal from the District Court of the Virgin Islands
Division of St. Thomas / St. Croix
(No. 1-07-cv-00009)
District Judge: Hon. Anne E. Thompson
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 8, 2014
Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges.
(Filed: December 30, 2014)
____________
OPINION
____________
CHAGARES, Circuit Judge.
Aqueda De La Cruz appeals certain pre-trial and evidentiary rulings made in her
personal injury suit against the Virgin Islands Water and Power Authority. Lee J. Rohn
and Associates, LLC appeals an order disqualifying it as counsel for De La Cruz. For the
reasons that follow, we will affirm the District Court in all respects.
I.
We write solely for the parties and therefore recite only the facts that are necessary
to our disposition. On the morning of December 4, 2006, Jose De La Cruz was on the
roof of Mutual Homes Building 17 in St. Croix. A witness, Olivia Benjamin, testified De
La Cruz was painting the side of the building when his painting pole struck an electrical
wire. Appendix (“App.”) 1441. Olivia Benjamin saw a flash of light and watched De La

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Cruz fall prone on the roof. App. 1441. De La Cruz’s co-workers soon found him
unconscious and badly electrocuted. App. 1519.
One month later, De La Cruz filed suit against the Virgin Islands Water and Power
Authority (“WAPA”). His first attorney was Lee J. Rohn, whose law firm is Lee J. Rohn
and Associates, LLC (hereinafter, “Rohn”).1 App. 179. WAPA moved to disqualify
Rohn on the grounds that one of Rohn’s associates had previously performed legal work
for WAPA on another personal injury case involving contact with electrical infrastructure
— Santos de Jesus v. Virgin Islands Water and Power Authority, No. 10-CV-205. App.
423. The associate, Tab Ellison, conducted research related to motions and “strategy
issues regarding litigation against WAPA.” App. 102-03. As part of that assignment,
Ellison’s supervisors told him about the De La Cruz case, App. 70, and asked him to
evaluate a memorandum issued in De La Cruz, App. 72. Ellison had complete access to
the de Jesus case file and the confidential WAPA information contained therein. App.
99-100. Although Ellison’s supervisor could not say whether Ellison reviewed the full
file, and Ellison denied having done so, App. 99, his supervisor testified that she
communicated to Ellison what she considered to be WAPA’s confidential information.
App. 101-02.
Finding that an attorney-client relationship had existed between Ellison and
WAPA and that de Jesus was substantially related to De La Cruz, the Magistrate Judge
granted the motion to disqualify Ellison and Rohn pursuant to Model Rules of
1
At the time, Lee Rohn’s firm was the Law Offices of Rohn & Cameron, LLC.
3
Professional Conduct 1.9 and 1.10. App. 30-31. On appeal to the District Court, Rohn
argued that the two cases were not substantially related because de Jesus involved
electrocution via a faulty guy wire rather than an electrical wire. The District Court
found the difference insignificant for purposes of Model Rule 1.9 and denied Rohn’s
appeal. App. 17.
Prior to trial, WAPA retained an expert, Dr. James Nelson, to testify that De La
Cruz suffered from neurosyphilis, which might be responsible for some of De La Cruz’s
negative symptoms following the accident. App. 1118. De La Cruz moved to preclude
Nelson’s opinion on the grounds that it was unfairly prejudicial and not reliable under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See App. 1018-31.
The District Court denied De La Cruz’s motion. De La Cruz died in May 2013 and
Aqueda De La Cruz, the deceased’s widow, substituted as the named plaintiff. App.
1174. An autopsy revealed no evidence of neurosyphilis. App. 2017. Aqueda De La
Cruz (for simplicity, this Opinion will continue to refer to the plaintiff-appellant as “De
La Cruz”) renewed the motion to preclude. App. 1177. The Court again denied the
motion. App. 1358.
On the eve of trial, De La Cruz moved to disqualify WAPA’s counsel on the basis
that it had hired an investigator, Antonio Messer, who had previously worked for De La
Cruz’s original counsel. App. 1341. WAPA’s counsel argued that it only hired Messer
to serve process and assist in selecting a jury and that Messer had never seen the case file.
App. 1341. Messer testified that although he had worked for Rohn while this matter was
pending, his only involvement was serving subpoenas, locating a witness, and
4
occasionally driving De La Cruz to Rohn’s office. App. 1344-45. The District Court
denied De La Cruz’s motion to disqualify but advised WAPA’s counsel to release Messer
from further involvement in the case. App. 1357.
One major issue at trial was how De La Cruz held his painting pole at the time of
the accident. Olivia Benjamin testified that De La Cruz held the painting pole with one
end moving toward the many electrical wires near the building. App. 1436, 1441. De La
Cruz’s employer, Marco Blackman, added that he had previously observed De La Cruz
failing to take proper care around electrical wires. App. 2302. De La Cruz’s co-worker
Adrian Benjamin heard Blackman give De La Cruz multiple warnings about
electrocution. App. 2274. However, De La Cruz’s supervisor, Julian Lansiquot, testified
that he had never seen De La Cruz paint in an unsafe manner. App. 1513.
De La Cruz sought to introduce three photographs of how rooftop painters
typically paint the sides of buildings and ask Lansiquot to demonstrate how such painting
worked. App. 1493-1500. The District Court refused to admit the photographs or allow
Lansiquot’s testimony because the photographs did not depict and Lansiquot did not
observe De La Cruz painting on the day of the accident. App. 1498, 1512.
A second major issue was the positioning of the electrical wires. One of the
electrical poles supporting the wires was leaning dangerously close to the building. See,
e.g., App. 1440, 1583. Vaughn Hendricks, WAPA’s Safety Manager, testified that the
wires were closer to the building than regulations permitted and any WAPA employee
who saw the leaning pole should have reported it. App. 1616, 1620-21. Irving Francis,
WAPA’s line superintendent, testified that WAPA linesmen are instructed that when they
5
respond to a trouble call, they should survey the area for potential unreported problems as
well. App. 1888. He added that linesmen responding to a specific call on October 19,
2006 would have driven right past the leaning pole by Mutual Homes Building 17. App.
1895.
De La Cruz sought to introduce records of WAPA visits to Mutual Homes in the
five years prior to the accident. App. 1626-30. The District Court rejected the records as
cumulative, App. 1629-30, but permitted De La Cruz’s counsel to reference them in his
closing argument. App. 2456-23, 2456-24.
De La Cruz also sought to introduce a portion of Adrian Benjamin’s deposition
testimony concerning the electrical pole:
Q: Okay. And you lived in Mutual Homes your whole life, is that correct?
A: (Witness nods head.)
Q: Yes?
A: Yes.
Q: Do you remember seeing that pole leaning before the day of this accident?
A: Yeah.
Q: And was that pole leaning like that since at least after Hurricane Hugo?
A: Yeah.
App. 2845. WAPA’s counsel did not object to the form of the question during the
deposition, but the District Court chose to exclude the deposition testimony because the
questions were “not asked in a straightforward way.” App. 2456-27, 2456-28.
The jury found WAPA negligent but assigned 85% of the fault to De La Cruz.
Under the Virgin Islands’ contributory negligence rules, because De La Cruz was more
than 50% at fault, he recovered nothing. App. 5-6. The District Court entered judgment
for WAPA. De La Cruz timely appealed.
6
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction over both De La Cruz’s and Rohn’s appeals pursuant to 48 U.S.C. § 1612 and
28 U.S.C. § 1291 and § 1294(3).
We review orders disqualifying counsel in two steps. “First, we exercise plenary
review to determine whether the district court’s disqualification was arbitrary.” United
States v. Stewart, 185 F.3d 112, 120 (3d Cir. 1999). Second, “[i]f we find the district
court’s decision was not arbitrary, we then determine whether the court abused its
discretion in disqualifying the attorneys.” Id. “A court abuses its discretion in imposing
sanctions when it ‘base[s] its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.” Adams v. Ford Motor Co., 653 F.3d 299, 304 (3d
Cir. 2011). “It is the responsibility of an appellate court to accept the ultimate factual
determinations of the fact-finder unless that determination either (1) is completely devoid
of minimum evidentiary support . . . or (2) bears no rational relationship to the supportive
evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972).
We review a district court’s decision to admit or exclude evidence for abuse of
discretion. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002).2
We will affirm a District Court’s evidentiary ruling, even if it is erroneous, “if it is highly
2
Our review of a court’s interpretation of the Federal Rules of Evidence, however, is
plenary. Hirst v. Inverness Hotel Corp., 544 F.3d 221, 225 (3d Cir. 2008).
7
probable that the error[ ] did not affect the outcome of the case.” McQueeney v.
Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir. 1985).
III.
A.
Rohn argues that its disqualification was an abuse of discretion. Specifically,
Rohn contends that WAPA failed to establish a violation of the Model Rules of
Professional Conduct, and both the Magistrate Judge and the District Court gave
insufficient weight to De La Cruz’s interest in having his choice of counsel. We
disagree.
“The district court’s power to disqualify an attorney derives from its inherent
authority to supervise the professional conduct of attorneys appearing before it.” United
States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). “As a general rule, the exercise of
this authority is committed to the sound discretion of the district court and will be
overturned on appeal only for an abuse of this discretion.” Id.Under the District of the Virgin Islands’ Local Rule of Civil Procedure 83.2(a)(1),
all attorneys practicing in the Virgin Islands must comply with the ABA Model Rules of
Professional Conduct. Model Rule 1.9 forbids an attorney who has represented a client
on a matter to represent another person in “the same or a ‘substantially related’ matter in
which that person’s interest are materially adverse to the interests of the former client
unless the former client gives informed consent.” Matters are “substantially related”
when “(1) the current matter involves the work the lawyer performed for the former
client; or (2) there is a substantial risk that representation of the present client will
8
involve the use of information acquired in the course of representing the former client,
unless that information has become generally known.” Restatement (Third) of Law
Governing Lawyers § 132 (2000); see also Model Rule of Professional Conduct 1.9 cmt.
3 (“Matters are ‘substantially related’ for purposes of this Rule if they involve the same
transaction or legal dispute or if there otherwise is a substantial risk that confidential
factual information as would normally have been obtained in the prior representation
would materially advance the client's position in the subsequent matter.”). Model Rule
1.10 explains when one lawyer’s conflict of interest under Rule 1.9 should be imputed to
other members of his or her firm.
Rohn asserts, as it did before the District Court, that de Jesus and De La Cruz are
not substantially related because the former involved a faulty guy wire rather than an
electrical wire. But we agree with the District Court that the distinction between a guy
wire and an electrical line is unimportant here: WAPA’s maintenance and inspection of
its electrical infrastructure were in issue in both cases. See App. 17. The cases may not
have involved the same plaintiffs, the same locations, or the same source of electrocution,
but they were nevertheless similar enough to create a genuine risk that Ellison obtained
confidential information from WAPA during his work on the de Jesus matter. Rohn has
not shown that the District Court committed a clear error in finding that Ellison worked
for WAPA on a case substantially related to De La Cruz.
Rohn argues that even if a conflict of interest existed, the District Court gave
insufficient weight to De La Cruz’s interest in retaining his choice of counsel and
lawyers’ interest in professional mobility when it ordered disqualification. We have held
9
that a District Court deciding a disqualification motion “should consider the ends that the
[applicable] disciplinary rule is designed to serve and any countervailing policies, such as
permitting a litigant to retain the counsel of his choice and enabling attorneys to practice
without excessive restrictions.” Miller, 624 F.3d at 1201. But we have never accorded
these countervailing policies paramount weight. See id. at 1203 (holding that the risk of
an apparent conflict of interest outweighed a party’s interest in retaining the counsel of
his choice). Both the Magistrate Judge and the District Court made findings that
disqualifying Rohn posed no great risk to attorney mobility because appropriate
screening procedures could have negated the problem. App. 19. We discern no abuse of
discretion in the District Court’s conclusion that the risk of prejudice, the need for
integrity in judicial proceedings, and WAPA’s interest in the loyalty of an attorney who
had once accepted its confidence outweighed De La Cruz’s interest in retaining his
attorney of choice. In sum, the District Court did not abuse its discretion in affirming the
Magistrate Judge’s order disqualifying Rohn.
B.
De La Cruz argues that the District Court’s decision not to disqualify WAPA’s
counsel was arbitrary, because the District Court failed to develop a proper factual
record, and an abuse of discretion, because the evidence showed a conflict of interest
capable of threatening the integrity of the trial. We disagree.
“As long as the court makes a reasoned determination on the basis of a fully
prepared record, its decision will not be deemed arbitrary.” United States v. Voigt, 89
F.3d 1050, 1075 (3d Cir. 1996) (citation omitted). There is no requirement that a court
10
hold a separate evidentiary hearing and make detailed factual findings before denying a
party his or her chosen counsel. Id. at 1075. Nonetheless, the District Court heard
extensive argument from both parties and heard testimony from Messer before making its
decision. The mere fact that the District Court cut off Attorney Rohn, when she tried to
interrupt argument, does not render the District Court’s decision arbitrary.
Under Model Rule of Professional Conduct 5.3, a supervising attorney must
ensure that the conduct of any non-lawyers she employs is compatible with the
professional obligations of the lawyer. When a non-lawyer is accused of “side
switching,” a court must first determine whether the non-lawyer learned confidential
information from his previous employer. Lamb v. Pralex Corp., 333 F. Supp. 2d 361,
364 (D.V.I. 2004). If the non-lawyer learned confidential information from his or her
previous employer, “a rebuttable presumption arises that the information will be
disclosed to the new employer.” Id. The burden then shifts to the firm opposing
disqualification to show that no disclosure of confidential information has occurred.
Evidence of formal screening mechanisms can be helpful in meeting this burden. Id. In
Lamb, evidence that an employer (coincidentally, Attorney Rohn) had forbidden
employees to speak to or near a new paralegal about cases on which she had a conflict of
interest and had blocked the paralegal’s access to the relevant case files was sufficient to
rebut the presumption of contamination. Id. at 366.
Here, we do not need to consider screening mechanisms, or lack thereof, because
there was no evidence that Messer acquired confidential information during his
employment with Rohn. Messer had no access to the case file. He served subpoenas and
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occasionally drove De La Cruz to Rohn’s office. App. 1344-45. With no evidence that
Messer possessed confidential information, no presumption arose that Messer shared
such information with WAPA’s counsel. The District Court did not abuse its discretion
in denying the motion to disqualify.
IV.
A.
De La Cruz argues that the District Court erred in refusing to admit photographs of
workers painting the side of a building and a white fascia board, Lansiquot’s
demonstration of how he had seen Cruz paint in the past, and records of the many
“trouble calls” WAPA employees responded to at Mutual Homes.
Under Federal Rule of Evidence 403, a district court “may exclude relevant
evidence 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.”3 Demonstrative photographs sometimes fall
subject to this ban when they contain significant variations from the date, scene, or
subject in issue. See, e.g., Fusco v. Gen. Motors Corp., 11 F.3d 259, 263-64 (3d Cir.
1993) (explaining that staged recreations must be analyzed carefully for their
resemblance to the original events because jurors may not fully appreciate variations in
the surrounding conditions); King v. Ford Motor Co., 597 F.2d 436, 445 (5th Cir. 1979)
3
Even where a district court does not invoke Rule 403, “the trial judge’s balancing [of
maximum probative value versus likely prejudicial effect] will be subsumed in his
ruling.” United States v. Long, 574 F.2d 761, 766 (3d Cir. 1978).
12
(affirming district court’s exclusion of photographs that did not depict the chassis in issue
as they appeared at the time of the accident).
The photographs in question did not depict De La Cruz. They depicted different
painters, painting a different building, on a different day. Lansiquot did not observe De
La Cruz painting on the day of the accident. App. 1512. Offered “so the jurors
understand what type of work [the painters were] doing,” App. 1499, any relevance the
photographs or demonstration might have possessed was far outweighed by their
tendency to confuse or mislead the jury. The District Court did not abuse its discretion in
refusing to admit the photographs and demonstration.4
Nor did the District Court err in limiting De La Cruz’s use of WAPA “trouble
call” records. De La Cruz elicited the testimony of Vaughn Hendricks that any WAPA
employee who saw the leaning pole should have reported it. App. 1616, 1620-21. The
records would have shown a large number of WAPA employees passing the leaning pole.
But they would not show that the WAPA employees actually saw the pole. And for the
simpler proposition that WAPA employees had visited or driven past Mutual Homes and
should have noticed the leaning pole, De La Cruz already had the admissions of Irving
4
De La Cruz now asserts that the photographs and demonstration could have been used
to impeach Olivia Benjamin’s testimony by showing the difficulty of painting in the
posture her testimony ascribed to De La Cruz. This was not the argument De La Cruz
made at trial, see App. 1497-99, and we will not consider it for the first time on appeal.
See Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (“It is axiomatic that
arguments asserted for the first time on appeal are deemed to be waived and consequently
are not susceptible to review in this Court absent exceptional circumstances.”).
Moreover, the District Court expressly gave De La Cruz the opportunity to ask Olivia
Benjamin whether these photographs accurately depicted the way she saw De La Cruz
painting on December 4, 2006. De La Cruz declined to do so. See App. 1431–32.
13
Francis and Vaughn Hendricks. See, e.g., App. 1893-94, App. 1640. Under the
circumstances, the District Court did not abuse its discretion in rejecting the records as
needlessly cumulative.
B.
De La Cruz also argues that the District Court erred in refusing to admit the
following portion of Adrian Benjamin’s deposition transcript on the grounds that
counsel’s question to the deponent was not asked in a straightforward way:
Q: Okay. And you lived in Mutual Homes your whole life, is that correct?
A: (Witness nods head.)
Q: Yes?
A: Yes.
Q: Do you remember seeing that pole leaning before the day of this accident?
A: Yeah.
Q: And was that pole leaning like that since at least after Hurricane Hugo?
A: Yeah.
App. 2845. De La Cruz notes that under Federal Rule of Civil Procedure 32(d)(3)(B), an
objection to the form of the question is waived if it is not made during the deposition, and
WAPA’s counsel made no objection at the deposition to the question or answer De La
Cruz sought to introduce.
Any possible error in excluding this deposition testimony was harmless given the
other testimony concerning the length of time the pole had been leaning prior to the date
of the accident.
C.
Finally, De La Cruz argues that the District Court erred in permitting Dr. Nelson
to offer his expert opinion that De La Cruz suffered from neurosyphilis. At the very
14
least, De La Cruz insists, the District Court was required to hold a Daubert hearing on De
La Cruz’s renewed motion before allowing Dr. Nelson to testify.
The District Court received several rounds of motions — totaling hundreds of
pages — regarding Dr. Nelson’s opinion. See App. 114, 114-1-18, 1018-1160, 1177-
1230. The record showed that Dr. Nelson was a practiced neurologist and doctor of
internal medicine and that he had treated over 300 cases of syphilis. Prior to formulating
his opinion, Dr. Nelson examined De La Cruz and reviewed his medical records as well
as various laboratory results. App. 1114. Confronted with an autopsy result that showed
no signs of neurosyphilis, Dr. Nelson testified that the battery of antibiotics De La Cruz
received prior to his death might have masked the symptoms of or even treated De La
Cruz’s syphilis. App. 2389-90.
Federal Rule of Evidence 702 governs the use of expert testimony in federal
courts. Experts must be qualified to offer opinions, and their testimony must be reliable.
“Before an expert witness may offer an opinion . . ., [the expert] must first be qualified by
virtue of specialized expertise.” Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.
2000). We have emphasized that the “specialized expertise” requirement is a liberal one:
“a broad range of knowledge, skills, and training [may] qualify an expert as such.” In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). It is not the trial court’s
responsibility to determine the best possible training for an expert and restrict testimony
to those who possess it. Id.Even a qualified expert may only testify “so long as the process or technique the
expert used in formulating [her] opinion is reliable.” Id. at 742 (citing Daubert v. Merrell
15
Dow Pharm., Inc., 509 U.S. 579, 587 (1993)). An expert’s opinion must be “based on the
methods and procedures of science rather than on subjective belief or unsupported
speculation.” Elcock, 233 F.3d at 745 (quotation marks and citation omitted). We have
held that courts should consider the following, non-exclusive factors in evaluating an
expert’s methodology:
(1) whether a method consists of a testable hypothesis; (2) whether the method has
been subject to peer review; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the technique's operation; (5)
whether the method is generally accepted; (6) the relationship of the technique to
methods which have been established to be reliable; (7) the qualifications of the
expert witness testifying based on the methodology; and (8) the non-judicial uses
to which the method has been put.
Id. at 745-46. Imposing as this array of factors may appear, “[t]he grounds for [an]
expert’s opinion merely have to be good, they do not have to be perfect.” Paoli, 35 F.3d
at 744. “The test of admissibility is not whether a particular scientific opinion has the
best foundation, or even whether the opinion is supported by the best methodology or
unassailable research.” In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999). “Rather, the
test is whether the particular opinion is based on valid reasoning and reliable
methodology.” Id.We have also stressed the importance of in limine hearings in making the
reliability determination required under Rule 702. Padillas v. Stork-Gamco, Inc., 186
F.3d 412, 417 (3d Cir. 1999). In cases where there is a scant record supporting an
expert’s proffered opinion, a hearing may even be necessary. Id. at 417. Nonetheless,
where the evidentiary record pertaining to an expert is extensive, a court does not abuse
its discretion in ruling on a Daubert challenge without a separate hearing. Oddi v. Ford
16
Motor Co., 234 F.3d 136, 153 (3d Cir. 2000) (holding that a record consisting of a
preliminary report, an amended report, an affidavit prepared to meet the adversary’s
Daubert challenge, and multiple depositions was sufficient to obviate the need for a
Daubert hearing).
Here, De La Cruz has failed to identify a reversible error in the District Court’s
application of Rule 702 to Dr. Nelson.5 Whatever weaknesses De La Cruz’s expert might
have identified in Dr. Nelson’s methods, particularly in light of autopsy results showing
no sign of neurosyphilis, they were sufficiently grounded in science to be offered in court
and then attacked on cross-examination. The evidentiary record, like that in Oddi, was
sufficiently robust to justify ruling without a Daubert hearing on the second motion. In
sum, the District Court did not abuse its discretion in permitting Dr. Nelson to testify.
V.
For the foregoing reasons, we will affirm the District Court’s May 8, 2012 order
affirming the disqualification of Lee J. Rohn and Associates, LLC, and we will affirm the
District Court’s November 27, 2013 judgment in favor of the Virgin Islands Water and
Power Authority.
5
Nor did the District Court err in its Rule 403 analysis. Any prejudice De La Cruz might
have suffered from Dr. Nelson’s opinion — if it was credited by the jury — did not
substantially outweigh the probative value of such testimony on the issue of damages.
17