Arizona, State of et al v. Michael D Lansky LLC et al

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1Although Defendants' Motion is entitled a Motion for Order Permitting
Hybrid-Fact-Expert Testimony by Michael D. Lansky, it was docketed as a Motion for Order
Permitting Hybrid-Fact-Expert Testimony by Michael D. Lansky (Doc. 173), with the Hybrid
Expert Report lodged with a statement the document is to be filed by Clerk if Motion is
granted (Doc. 174). As the applicable rules require disclosure and not filing, see
Fed.R.Civ.P. 5(d)(1), 26(a)(2), as well as the fact the Hybrid Expert Report is attached to the
Motion for Order Permitting Hybrid-Fact-Expert Testimony (Doc. 173-1), the Court will
direct the Clerk of Court to not docket the lodged document.
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
State of Arizona, ex rel. Kristin K.
Mayes, Attorney General; et al.,
Plaintiffs,
v.
Michael D. Lansky, L.L.C., dba Avid
Telecom; et al.,
Defendants.
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No. CV-23-233-TUC-CKJ
ORDER
Pending before the Court is the Motion for Order Permitting Hybrid-Fact-Expert
Testimony by Michael D. Lansky (Doc. 173)1 and the Motion for Reconsideration (Doc. 207)
filed by Defendants Michael D. Lansky, et al ("Defendants"). Plaintiffs State of Arizona, ex
rel. Kristin K. Mayes, et al. ("Plaintiffs") have filed responses (Doc. 177, 207) and
Defendants have filed replies (Doc. 180, 221).
Case 4:23-cv-00233-CKJ-MAA Document 257 Filed 09/02/26 Page 1 of 17

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I. Applicable Procedural History
Defendants have filed a Motion for Order Permitting Hybrid-Fact-Expert Testimony
by Michael D. Lansky. Defendants assert the economic realities of this case have forced
Defendants to limit the scope of aspects of their defense and the presentation of Michael D.
Lansky ("Lansky") as a hybrid fact-expert witness is the only way in which Defendants will
be able to participate fully in the case.
In a Motion to Dismiss, Defendants sought dismissal of the claim of personal liability
against Lansky based on a common law piercing of the corporate veil, the claim of personal
liability against Defendant Stacey Reeves based on her status as an independent contractor,
and on the alleged inadequacy of Plaintiffs' claims arising under the Telecommunications
Consumer Protection Act ("TCPA") (Doc. 39). Defendants sought to supplement its Motion
to Dismiss, citing new case law which had determined no personal liability existed even
where a defendant personally participated in or directed a TCPA violation. The Court denied
the request, finding the case law was not binding precedent and was not issued before the
filing of the original Motion (or relied on those prior decisions). May 8, 2024, Order (Doc.
64). The Court denied the Motion to Dismiss, but agreed with Defendants that Plaintiffs had
failed to sufficiently allege facts in support of piercing the corporate veil.
On November 20, 2025, this Court issued an order which permitted Defendants to
docket a Motion for Reconsideration on or before November 25, 2025, and set filing
deadlines for a response and a reply. (Doc. 181). Defendants filed its Motion for
Reconsideration on February 3, 2026. (Doc. 207). This Court amended the filing deadlines
for a response and a reply and advised the parties it would also consider the timeliness of the
filing of the Motion. February 5, 2026, Order (Doc. 208).
. . . . .
. . . . .
. . . . .
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II. Motion for Order Permitting Hybrid-Fact-Expert Testimony by Lansky (Doc. 173)
A. Financial Interest in the Litigation
The parties disagree whether Lansky's financial interest in the case precludes him
from testifying as a witness in this case. Specifically, Plaintiffs assert Lansky's financial
interest in the case precludes him from testifying as an expert. Generally speaking, a party
may testify as an expert witness. 32 C.J.S. Evidence § 695 (April 2026 update) ("witness is
not disqualified as an expert by the mere fact that the witness is a party"); Larsen, Navigating
the Federal Trial § 11:16 (2025 ed.); see also Braun v. Lorillard Inc., 84 F.3d 230, 238 (7th
Cir. 1996) (CEO, although not a disinterested expert witness, could be qualified to give an
expert opinion); Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993),
cert. denied, 508 U.S. 956 (1993) (citing cases) ("Nothing in the Federal Rules of Evidence
prohibits a party from serving as an expert witness. The fact that the witness is a party is
properly considered when the court assesses the witnesses' credibility."); Brownlee v. Gay
& Taylor, Inc., 861 F.2d 1222, 1225 (10th Cir. 1988) (permitting regional vice president of
defendant to testify as an expert was not an abuse of discretion). The parties have not cited
to, nor is the Court aware of, any Ninth Circuit case law that directly addresses when a court's
inherent authority warrants the exclusion of expert testimony by a party.
Indeed, the case law in the Ninth Circuit is mixed as to whether that party's financial
interest in the case prevents that party from testifying as an expert. For example, in Sec. &
Exch. Comm'n v. Cornerstone Acquisition & Mgmt. Co. LLC, No. 22-CV-765 JLS (VET),
2025 WL 276318, at *19 (S.D. Cal. Jan. 23, 2025), quoting Perfect 10, Inc. v. Giganews,
Inc., CV 11-07098-AB (SHx), 2014 WL 10894452, at *6 (C.D. Cal. Oct. 31, 2014), the court
determined the exclusion of the testimony would "advance the 'policy objectives [of]
preventing conflicts of interest and maintaining the integrity of the judicial process' without
substantially burdening Defendants' 'access to expert witnesses who possess specialized
knowledge.'" In Maritech Marine Servs., LLC v. Bay Welding Servs., Inc., No.
3:20-CV-00231-SLG, 2022 WL 138677, at *2 (D. Alaska Jan. 14, 2022), however, the court
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distinguished Perfect 10 and declined to exercise its inherent authority to strike the expert
testimony of the owner/operator of defendant. The court stated:
In Perfect 10, the District Court for the Central District of California excluded the
testimony of Perfect 10's CEO not under Rule 702, but under its "separate, inherent
authority to exclude expert testimony that would be against public policy."17 . . .
The Court recognizes that [the owner/operator] has a financial interest in the outcome
of this litigation. However, Perfect 10 is distinguishable because [the owner/operator]
does not "almost certainly" lack the specialized knowledge relevant here, for the
reasons discussed above.19 Further, the integrity of the adversarial process and public
confidence in the legal system can be protected by Plaintiff's opportunity to cross
examine Mr. Engebretsen about his financial interest, with the ultimate question of
credibility to be determined by the trier of fact.20
17 2014 WL 10894452, at *5 (distinguishing two other cases because they did
not "address[ ] a district court's separate, inherent authority to exclude expert
testimony that would be against public policy").
19 See supra Section I.
20 [United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001)]
("Generally, evidence of bias goes toward the credibility of a witness, not his
competency to testify, and credibility is an issue for the jury.").
Maritech Marine Servs., 2022 WL 138677, at *2 (D. Alaska Jan. 14, 2022).
In excluding the testimony in Perfect 10, that district court stated:
"A district court is vested with broad discretion to make discovery and evidentiary
rulings conducive to the conduct of a fair and orderly trial." Campbell Indus. v. M/V
Gemini, 619 F.2d 24, 27 (9th Cir.1980). Encompassed within that discretion is "the
inherent power to disqualify expert witnesses to protect the integrity of the adversary
process, protect privileges that otherwise may be breached, and promote public
confidence in the legal system." Hewlett–Packard Co. v. EMC Corp., 330 F.Supp.2d
1087, 1092 (N.D.Cal.2004); accord Campbell Industries v. M/V Gemini, 619 F.3d at
27 (holding district court had "inherent power to exclude [expert's] testimony"); Koch
Ref. Co. v. Jennifer L. Boudreau M/V, 85 F.3d 1178, 1181 (5th Cir.1996) ("Federal
courts have the inherent power to disqualify experts"); see also Ross v. American Red
Cross, 567 Fed.Appx. 296, 304 (6th Cir.2014) (same). Although courts reserve the
power to disqualify an expert for rare or extreme cases, courts will exercise it to
achieve important "policy objectives ... include[ing] preventing conflicts of interest
and maintaining the integrity of the judicial process." English Feedlot, Inc. v. Norden
Laboratories, Inc., 833 F.Supp. 1498, 1504 (D.Colo.1993); accord Koch Ref. Co. v.
Jennifer L. Boudreau M/V, 85 F.3d at 1183 (same).3
3 Courts should be careful to "balance" those interests with the "policy
objectives" of "ensuring that parties have access to expert witnesses who
possess specialized knowledge and allowing experts to pursue their
professional calling." English Feedlot, Inc. v. Norden Laboratories, Inc., 833
F.Supp. at 1504. But as the Court has already discussed, on this issue the
overwhelming majority of courts, including the courts of this district, have
done that balancing, and drawn the line between the sort of conflict associated
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with an indirect incentive to reach a certain conclusion and a direct financial
stake in the substance of an opinion or the outcome of litigation.
Perfect 10, 2014 WL 10894452, at *4.
The Ninth Circuit case cited by Perfect 10 did not involve the exclusion of expert
testimony by a party, but the exclusion of an expert's testimony based on a Fed.R.Civ.P. 26
violation. Campbell Indus., 619 F.2d at 27 ("Few would question a court's inherent power
to discipline breaches of Rule 26(e), even in the absence of a court order."). Similarly, the
Fifth and Sixth Circuit authority cited by Perfect 10 did not involve the exclusion of expert
testimony by a party, but the exclusion of expert testimony based on prior relationships.
Koch Ref. Co. 85 F.3d at 1180-83 (where multiple cases were consolidated and insurance
company changed its position after some cases were settled, court did not abuse its discretion
in excluding expert that had originally been hired by insurance company); Ross, 567
Fed.Appx. at 303 (plaintiff's expert was former deputy general counsel and interim general
counsel of defendant).
However, the Perfect 10 court recognized:
. . . [T]he majority of courts, including the Courts of this district, have "held that
testimony of expert witnesses whose compensation is contingent upon the outcome
of the case must be excluded." [Citations omitted.]
Although this issue most commonly arises with experts retained on a contingency fee
basis, the underlying logic reaches further. As the Fourth Circuit has held, testimony
from experts who have a direct financial stake in the outcome of litigation is "against
public policy ...." Accrued Fin. Svcs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 300
(4th Cir.2002) (emphasis added). While experts are almost universally compensated
for their opinion, public policy has long made a distinction between paid experts who
have an indirect incentive to win the approval of their employers (the client and
attorneys) on the one hand, and experts who have a direct financial stake in the
outcome of the litigation on the other. [Citations omitted.] Public policy tolerates the
former category of expert testimony as a necessary evil: although it carries inherent
risks of witness bias, those risks can be minimized by the adversarial process and are
outweighed by the reality that the modern legal system would collapse without the aid
of expert testimony. However, courts of this country draw a line where the expert's
incentive structure crosses the threshold from an indirect incentive to reach a certain
conclusion to a direct financial interest in doing so. Once the expert obtains a direct
financial interest in the outcome of the litigation (whether by his or her status as a
party, by contingency fee agreement, or otherwise), any semblance of independence
or promise of intellectual rigor that normally adheres to an expert witness is fatally
wounded. Under those rare circumstances, the conflict of interest is so great, and
raises so many "serious questions about the integrity of [the witnesses'] expert
testimony," that to admit the conflicted testimony would violate public policy.
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[Straughter v. Raymond, No. CV 08–2170 CAS CWX, 2011 WL 1789987, at *3
(C.D.Cal. May 9, 2011)].
Perfect 10, 2014 WL 10894452, at *4, emphasis in original. Similarly, in Accrued Fin.
Servs., Inc. v. Prime Retail, Inc., 298 F.3d 291, 300 (4th Cir. 2002), the court compared
employees of plaintiff testifying as experts to a contingent fee arrangement, violating public
policy.
In this case, Defendants assert:
The economic realities of this case, which have forced Defendants to limit the scope
of many aspects of their defense, have now forced to limit their ability to provide
expert testimony. Having already spent tens of thousands of dollars to defend their
rights to date, Defendants cannot afford to hire an independent expert and continue
their defense of the complaint. The presentation of hybrid tract expertise is the only
way in which defendants will be able to participate fully in this proceeding.
Motion (Doc. 173, p. 2). Plaintiffs' response does not dispute this assertion. The Court finds
it appropriate to balance the interests of Defendants with policy objectives of "ensuring that
parties have access to expert witnesses who possess specialized knowledge and allowing
experts to pursue their professional calling." Perfect 10, 2014 WL 10894452, at *4, n. 3,
quoting English Feedlot, 833 F.Supp. at 1504.
As Plaintiffs have not disputed Defendants' assertion of a limited ability to provide
expert testimony, the Court accepts Defendants' assertion for purposes of this motion. The
Court does not find the conflict of interest demonstrated by a contingency fee expert to be
entirely comparable to a party providing testimony as an expert. Rather, excluding a party
from serving as an expert does not eliminate, reduce, or even create a financial incentive to
prevail; that incentive exists by virtue of the status as a party. A jury can simply take that
obvious interest into account when evaluating the testimony. By contrast, prohibiting
contingent-fee experts prevents the creation of an additional, outcome-dependent financial
incentive in someone whose role in the litigation is otherwise that of an ostensibly
independent expert.
Thus, the relevant distinction is not whether the witness has a financial interest in the
outcome. Both witnesses may. The relevant distinction is whether the financial interest is an
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inherent consequence of being a litigant or is affirmatively created by an agreement
conditioning an expert's compensation upon the outcome of the litigation. Unlike the
contingent fee expert, who may present a layer of reliability based solely on his expert status,
a party presents bias and an interest in the outcome simply by his status as a party. Further,
the Court recognizes a jury's ability to discount testimony for an "obvious conflict of
interest." Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988); see also Braun,
84 F.3d at 238. Lastly, "the integrity of the adversarial process and public confidence in the
legal system can be protected by Plaintiff's opportunity to cross examine [Lansky] about his
financial interest, with the ultimate question of credibility to be determined by the trier of
fact." Maritech Marine Servs., 2022 WL 138677, at *2.
B. Qualification as an Expert
Defendants request Lansky be permitted to testify as a hybrid fact-expert witness as
recognized by Fed.R.Civ.P. 26(a)(2)(C). Further, Defendants assert Lansky is eligible to
testify as an expert pursuant to Fed.R.Civ.P. 702. Additionally, Defendants have provided
a declaration setting forth Lansky's qualifications and a Statement of Anticipated Fact and
Expert Testimony (Doc. 173-1, Ex. 1). Plaintiffs assert, however, Defendants have not
shown Lansky is qualified as an expert. Alternatively, Plaintiffs request the Court defer its
ruling until after the close of expert discovery.
The Court accepts Lansky is eligible to testify as an expert pursuant to Fed.R.Civ.P.
26(a)(2)(C). See generally Sec. & Exch. Comm'n v. Cornerstone Acquisition & Mgmt. Co.
LLC, No. 22-CV-765 JLS (VET), 2025 WL 276318, at *17 (S.D. Cal. Jan. 23, 2025).
The parties disagree whether Lansky meets the requirements of Fed.R.Evid. 702,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1983) and Kumho Tire
Company v. Carmichael, 526 U.S. 137 (1999), to qualify as an expert. The rule provides
when expert testimony may be appropriate:
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
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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.
Fed.R.Evid. 702.
When an objection to an expert's testimony is raised, the court must perform Daubert
gatekeeper duties before the jury is permitted to hear the evidence. Daubert, 509 U.S. at 589,
Kumho Tire Co., 526 U.S. at 149; Elsayed Mukhtar v. California State University, Hayward,
299 F.3d 1053, 1063 (9th Cir. 2002) (amended en banc at 319 F.3d at 1073 (9th Cir. 2003)).
The Ninth Circuit has held that a trial court may make a determination as to a proposed
expert's qualifications, the relevance of the testimony, and the reliability of the testimony
without a hearing. United States v. Alatorre, 222 F.3d 1098, 1101-02 (9th Cir. 2000).
Indeed, this latitude allows a trial court to decide what proceedings, if any, are required to
determine reliability. Alatorre, 222 F.3d at 1103; see also Hangarter, 676 F.3d at 1018 (trial
court satisfied gatekeeping duties by probing the extent of expert's knowledge and experience
of expert in pre-trial rulings and during voir dire).
A witness is "qualified as an expert by knowledge, skill, experience, training, or
education[.]" Fed.R.Evid. 702. The note to the rule states:
Nothing in this amendment is intended to suggest that experience alone – or
experience in conjunction with other knowledge, skill, training or education – may not
provide a sufficient foundation for expert testimony. To the contrary, the text of Rule
702 expressly contemplates that an expert may be qualified on the basis of experience.
In certain fields, experience is the predominant, if not sole, basis for a great deal of
reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir.
1997) (no abuse of discretion in admitting the testimony of a handwriting examiner
who had years of practical experience and extensive training, and who explained his
methodology in detail); Tassin v. Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D.La.
1996) (design engineer's testimony can be admissible when the expert's opinions ''are
based on facts, a reasonable investigation, and traditional technical/mechanical
expertise, and he provides a reasonable link between the information and procedures
he uses and the conclusions he reaches''). See also Kumho Tire Co. v. Carmichael,
119 S.Ct. 1167, 1178 (1999) (stating that ''no one denies that an expert might draw a
conclusion from a set of observations based on extensive and specialized
experience.'').
Fed.R.Evid. 702, Advisory Committee Notes. An expert may testify "in the form of an
opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
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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." Kuhmo Tire, 526 U.S. at 141,
152. Factors that may be considered in determining reliability were set forth in Daubert: (1)
whether the theory can be (and has been) tested; (2) whether it has been subjected to peer
review and publication; (3) whether there is a high known or potential rate of error and
whether there are standards controlling the techniques' operation; and (4) whether the theory
or technique enjoys general acceptance within a relevant scientific community), and were
made applicable to non-scientific expert testimony, depending on the circumstances of a case,
in Kumho Tire. However, the Ninth Circuit has stated:
Thus, admissibility of expert opinion testimony generally turns on the following
preliminary question of law determinations by the trial judge under FRE 104(a).
- Whether the opinion is based on scientific, technical, or other specialized
knowledge;
- Whether the expert's opinion would assist the trier of fact in understanding
the evidence or determining a fact in issue;
- Whether the expert has appropriate qualifications - i.e., some special
knowledge, skill, experience, training or education on that subject matter
[citation omitted].
- Whether the testimony is relevant and reliable [citations omitted].
- Whether the methodology or technique the expert uses "fits" the conclusions
(the expert's credibility is for the jury) [citation omitted].
- Whether its probative value is substantially outweighed by the risk of unfair
prejudice, confusion of issues, or undue consumption of time [citations
omitted].
United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000); see also Porter v. Martinez,
68 F.4th 429, 444 (9th Cir. 2023), citations omitted. Where, as in Hankey, the reliability of
an expert's testimony "depends heavily on the knowledge and experience of the expert," the
Daubert factors "simply are not applicable." Id. at 1169; see also Hangarter v. Provident
Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004). However, the Court must still
perform its gatekeeper duties, but wide latitude is afforded to the Court in determining
whether the expert testimony should be admitted and in determining how to test reliability.
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Hangarter, 373 F.3d at 1018 (where testimony is non-scientific, district court must make
reliability determination to fulfill gatekeeping duties); United States v. Alatorre, 222 F.3d at
1101-02.
Here, Defendants assert Lansky's opinion is based on his experience in
telecommunications and its operations, regulatory compliance (e.g., STIR/SHAKEN),
robocall mitigation, and involvement in creating compliance protocols (e.g., enhanced
monitoring). In other words, Defendants are asserting Lansky is qualified as an expert based
on his knowledge and experience in the telecommunications field, rather than the Daubert
factors. Indeed, the proposed expertise of Lansky is not of the type envisioned by Daubert,
i.e., is non-scientific. Defendants assert Lansky's opinions are rooted in real-time
observations and day-to-day involvement in telecommunications; Defendants compare this
to Plaintiffs' experts who reviewed selective and unverified generic information from sources
of uncertain reliability, relied on undisclosed programs and software, and has zero real world
experience.
In his Hybrid Expert Report ("Ex. Rpt."), Lansky asserts he has spent more than two
decades in the telecom industry and has lived "day-to-day" the issues presented in a Plaintiff
expert report and Lansky's opinions are rooted in real-time observations. Motion, Ex. Rpt.
(Doc. 173-1, ECF p. 3 of 236). The Ex. Rpt. also states Lansky's resume is attached, id.,
but it is not attached to the Ex. Rpt. However, Lansky's Declaration sets forth his asserted
qualifications (e.g., CEO, day-to-day person in charge, summary of experience, reputation).
Id. (ECF pp. 71-72 of 236), (Doc. 73-2, ECF pp. 2-3 of 3).
The Ex. Rpt. also sets forth the material facts as perceived by proposed expert Lansky
and his initial expert opinion of the expert reports of Plaintiffs' experts. Additionally, the Ex.
Rpt. summarizes allegations in the Complaint which Lansky asserts are misleading and/or
false, as well as places the allegations within context which Defendants appear to assert is
relevant. Further, the Ex. Rpt. asserts the reports of Plaintiffs' experts do not contain "a
single data point or document evidencing that a call alleged to be illegal meets all of the legal
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requirements, including that it was auto dialed, pre-recorded, and that it contained a
commercial message." Id. (ECF p. 37 of 236). The Ex. Rpt. also points out what Lansky
asserts are deficiencies in Plaintiffs' expert reports (e.g., failure to identify campaigns,
analytic providers, and referrals, making it impossible to determine reliability of sources or
data).
Lansky's testimony could be helpful to the jury because it could provide information
about telecom operations. For example, "[t]he average layperson has no experience
pertaining to what is or is not common knowledge within the telecommunications field."
Bouygues Telecom, S.A. v. Tekelec, 472 F. Supp. 2d 722, 726 (E.D.N.C. 2007). Second, it
appears Lansky's opinions are based on his qualifications as well as specialized knowledge
and experience in telecom operations. Generally speaking, this testimony is relevant and
would assist the trier of fact in understanding the evidence or determining a fact in issue.
However, the Court does recognize that Lanky has presented his opinions as to the
legalities of Defendants' operations in his discussion of material facts. For example, Lansky
asserts
[A] call is only an illegal robocall in the limited circumstances when it is placed using
a computerized autodialer and the message is prerecorded (i.e., not delivered via a live
human voice). Calls that do not meet both criteria are legal and even where the call
is placed using a computerized autodialer and the message is prerecorded, a robocall
is entirely legal if it comes from a caller who is exempted from an applicable
telemarketing statute (for example, a political campaign to a landline telephone) or
where the party receiving the call has agreed in advance to receive the call.
Ex. Rpt. (Doc. 173-1, ECF pp. 4-5 of 236). Such opinions may not be particularly helpful
as "expert opinions on legal conclusions have little relevance given the Court determines
issues of law." Golden Eye Media USA, Inc. v. Trolley Bags UK Ltd., 525 F. Supp. 3d 1145,
1201 (S.D. Cal. 2021), aff'd sub nom. Golden Eye Media USA, Inc. v. Evo Lifestyle Prods.
Ltd., No. 2021-2096, 2022 WL 2232517 (Fed. Cir. June 22, 2022), citing KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 426-27 (2007).
Additionally, the record indicates that Lansky testimony could be reliable based on
his specialized knowledge and experience. Lansky has worked in the field of telecom
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operations for two decades and has been involved in the day-to-day telecom operations. As
stated by another district court:
With respect to non-scientific expert testimony in particular, the reliability of an
expert's methodology must be determined by common sense and common practices
in the area of expertise in question. As the Advisory Committee Notes make clear,
experience alone, or in conjunction with other knowledge, skill, training, or education,
may very well provide a sufficient foundation for expert testimony. Fed.R.Evid. 702
Adv. Comm. Notes. However, if a witness relies "solely or primarily on experience,
[she] must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts." Id. See also Kumho Tire, 119 S.Ct. at 1176 ("[I]t will at times
be useful to ask even of a witness whose expertise is based purely on experience, say,
a perfume tester able to distinguish among 140 odors at a sniff, whether his
preparation is of a kind that others in the field would recognize as acceptable.").
United States v. Wilkinson, No. 1:14-CR-168-BLW-1, 2015 WL 6182466, at *4 (D. Idaho
Oct. 21, 2015). The Ex. Rpt. does set forth Lansky experience and specialized knowledge
and the Ex. Rpt. sufficiently demonstrates Lansky's experience as a basis for the opinions.
Further, the Ex. Rpt. implicitly explains how Lansky's experience leads to the conclusions
reached and how that experience is reliably applied to the facts.
The Ninth Circuit has recognized that "[d]isputes 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." Kennedy v. Collagen
Corp., 161 F.3d 1226, 1231 (9th Cir. 1998), citation omitted; see also Allen v. Am. Capital
Ltd., 287 F. Supp. 3d 763, 776 (D. Ariz. 2017), citation omitted (the "qualification standard
is meant to be broad and to seek a ‘minimal foundation' justifying the expert's role as an
expert"); Gray v. LG&M Holdings LLC, No. CV-18-02543, 2020 U.S. Dist. LEXIS 188376,
*23-24 (D. Ariz. Sept. 3, 2020), citation omitted ("Rule 702 was not meant to supplant 'the
traditional and appropriate means of attacking shaky but admissible evidence,' including
'[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof.'"). Vigorous cross-examination could assist in determining the
reliability of expert testimony by Lansky.
As discussed in Hankey, the Court must also consider whether the danger of unfair
prejudice substantially outweighs the probative value. United States v. Hankey, 203 F.3d at
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2It does not appear an expert deposition of Lansky, which may provide a basis for
objections, has yet been conducted.
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1172 ("Relevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant matter under
Rule 403. Unless trials are to be conducted as scenarios, or unreal facts tailored and sanitized
for the occasion, the application of Rule 403 must be cautious and sparing. Its major
function is limited to excluding matter of scant or cumulative probative force, dragged in by
the heels for the sake of its prejudicial effect."); see also United States v. LeMay, 260 F.3d
1018, 1027 (9th Cir. 2001) ("[p]otentially devastating evidence of little or no relevance [has]
to be excluded under Rule 403"). The danger of unfair prejudice from Lansky testifying as
an expert does not substantially outweigh the probative value.
The Court finds it appropriate to preliminarily determine Lansky qualifies as an
expert. See United States v. Alatorre, 222 F.3d at 1101-02 (a trial court may make a
determination as to a proposed expert's qualifications, the relevance of the testimony, and the
reliability of the testimony without a hearing). The Court recognizes, however, the parties
have not briefed objections to specific opinions of Lansky. In other words, the Court
preliminarily finds Lansky has the knowledge and experience to qualify to present expert
testimony, but the parties have not adequately briefed whether those qualifications provide
a sufficient basis to testify to specific opinions or whether those specific opinions are
appropriately presented through expert testimony. See e.g. In re ConAgra Foods, Inc., 302
F.R.D. 537, 557 (C.D. Cal. 2014), citations omitted ("While an expert witness may not testify
to a legal conclusion, he may testify to an ultimate issue of fact."). The Court may revisit this
preliminary determination should objections (e.g., relevance, reliability), further evidence
regarding how Lansky's experience leads to the conclusions reached, or further evidence on
whether Lansky's experience is reliably applied to the facts be presented to the Court.2
. . . . .
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III. Motion for Reconsideration (Doc. 207)
In directing Defendants to docket its Motion for Reconsideration, the Court set a
deadline of November 25, 2025. Defendants filed their Motion for Reconsideration on
February 3, 2026. In their Motion for Reconsideration, Defendants state it expected to have
access to witness testimony prior to that deadline based on orders of the magistrate judge.
Defendants continued to wait for the access to witness testimony, but when it became clear
that Defendants would "not have access to [the] witnesses for at least an additional month,
[Defendants determined it was] no longer practical to put off the re-docketing further."
Motion (Doc. 207, p. 5). Defendants request the Court accept this Motion nunc pro tunc to
December 15, 2025. In its reply, Defendants state:
Defendants' Motion for Reconsideration presents the exact same arguments regarding
the legal impact of the expanded discretion allowed by the end of Chevron deference.
Indeed, other than the change in the title of the document and related confirming edits
addressing procedural issues, the Motion for Reconsideration literally contained the
exact same words as the original Further Supplemental Motion.
As the Further Motion to Dismiss and the Motion for Reconsideration are virtually
identical, Plaintiffs have had access to the arguments presented for more than five
months. Indeed, rather than causing Plaintiffs prejudice, the delay in the filing of the
Motion for Reconsideration provided Plaintiffs with several extra months to develop
and file their responsive pleading, during which period Plaintiffs gained access to
additional documents and other discovery. Moreover, no depositions have been taken,
and neither party has undertaken work that could have been avoided with an earlier
filing.
Reply (Doc. 221, pp. 3-4).
The applicable rule states:
When an act may or must be done within a specified time, the court may, for good
cause, extend the time:
* * * * *
(B) on motion made after the time has expired if the party failed to act because of
excusable neglect.
Fed.R.Civ.P. 6(b)(1). As to the Motion for Reconsideration, Defendants have not requested
an extension of time to file the motion. Rather, Defendants request the Court accept the
untimely motion nunc pro tunc. However, as the federal rules are to be construed liberally,
the Court will accept Defendants' request as a motion under Fed.R.Civ.P. 6. Ahanchian v.
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Xenon Pictures, Inc., 624 F.3d 1253, 1258-60 (9th Cir. 2010).
Excusable neglect rests on the relevant circumstances surrounding a party's failure to
meet a deadline. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
395 (1993). The Supreme Court has set forth four factors to be considered in determining
if excusable neglect exists: "(1) the danger of prejudice to the non-moving party, (2) the
length of delay and its potential impact on judicial proceedings, (3) the reason for the delay,
including whether it was within the reasonable control of the movant, and (4) whether the
moving party's conduct was in good faith." Pincay v. Andrews, 389 F.3d 853, 855-56 (9th
Cir. 2004); see also Los Altos El Granada Investors v. City of Capitola, 583 F.3d 674 (9th
Cir. 2009).
Although excusable neglect is a "flexible, equitable concept," "inadvertence,
ignorance of the rules, or mistakes construing the rules do not constitute ‘excusable' neglect.'"
Kyle v. Campbell Soup Company, 28 F.3d 928, 931 (9th Cir. 1994), quoting Pioneer, 507
U.S. at 392. However, the Ninth Circuit has determined that it is appropriate to also evaluate
whether an attorney has "otherwise been diligent, the propensity of the other side to capitalize
on petty mistakes, the quality of representation of the lawyers . . . and the likelihood of
injustice if the appeal [is] not allowed." Pincay, 389 F.3d at 859. Additionally, "[w]hile
prejudice to the party seeking an extension is not one of the Pioneer factors, it is clear from
Pincay that a district court is not limited in its analysis of a motion for extension of time to
those four factors." Mendez v. Knowles, 556 F.3d 757, 765 n. 2 (9th Cir. 2009).
In this case, the delay itself does not unduly prejudice Plaintiffs. See Gilliard v.
Gruenberg, 302 F. Supp. 3d 257, 273 (D.D.C. 2018), citation omitted ("Undue prejudice is
not mere harm to the non-movant but a denial of the opportunity to present facts or evidence
which would have been offered had the amendment been timely."); Med. Imaging Centers
of Am., Inc. v. Lichtenstein, 917 F. Supp. 717, 720 (S.D. Cal. 1996) ("undue prejudice"
means improper or unfair detriment). It does not appear the delay will impact the judicial
proceedings.
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However, it is not clear Defendants acted with diligence. While Defendants assert
they were waiting for discovery to proceed, Defendants have not presented any reason why
it could not and did not submit a request to the Court to extend the deadline. Indeed,
Defendants "clearly could have informed the Court of the situation and sought leave to
extend the . . . [filing] deadline. However, . . . rather than informing the Court and requesting
to extend the deadline, [Defendants] simply allowed the time to expire . . . Under such
circumstances, the Court finds diligence is lacking." UC Rest., LLC v. Maricopa Cty., No.
CIV 05-1602-PHX-MHM, 2007 WL 473681, at *3 (D. Ariz. Feb. 8, 2007); see also Torres
v. AutoZone, Inc., No. 2:24-CV-06103-CV (PVCX), 2025 WL 4058302, at *5 (C.D. Cal.
Dec. 31, 2025) (three week delay without providing a valid justification weighs against a
finding of excusable neglect). Further, the Court recognizes both sides assert the opposing
parties have engaged in dilatory tactics (e.g., Plaintiffs failing to timely designate witnesses
despite magistrate judge's order requiring Plaintiffs address all outstanding Fed.R.Civ.P.
30(b)(6) issues; Defendants failing to timely file adequate motions to extend deadlines
despite magistrate judge's order). While there is no basis to conclude Defendants' conduct
was not in good faith, there is also no basis to conclude it was in good faith.
Additionally, "[w]hile prejudice to the party seeking an extension is not one of the
Pioneer factors," it is clear from Pincay that a district court is not limited in its analysis of
extending a filing deadline or accepting a document nunc pro tunc. Mendez v. Knowles, 556
F.3d 757, 765 n. 2 (9th Cir. 2009). The Court finds there is not a likelihood of injustice if
the motion is not accepted nunc pro tunc. See Pincay, 389 F.3d at 859. Defendants may be
able to raise the defense of failure to state a claim "by a motion for summary judgment." 5
Cyc. of Fed. Proc. § 15:431 (3d ed. Aug. 2026 update); FRCP RC § 12:95 (June 2026
update) ("Rule 12(h)(2) explicitly preserves the defendant's ability to challenge the
sufficiency of a claim at any time 'up to, but not beyond, trial on the merits.'"); see also In re
Apple iPhone Antitrust Litig., 846 F.3d 313, 320 (9th Cir. 2017), aff'd sub nom. Apple Inc.
v. Pepper, 587 U.S. 273 (2019).
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The Court finds excusable neglect does not justify the late filing.
Accordingly, IT IS ORDERED:
1. The Motion for Order Permitting Hybrid-Fact-Expert Testimony by Michael D.
Lansky (Doc. 173) is GRANTED to the extent discussed herein.
2. The Motion for Reconsideration (Doc. 207) is DENIED as untimely.
3. The Clerk of Court shall not file the lodged document (Doc. 174)
DATED this 2nd day of September, 2026.
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