Commercial Litigation and Arbitration

Rule 701 vs. Rule 702 — Lay Opinion Testimony — Is the Absence of Expertise an Advantage?

From San Luis & Delta-Mendota Water Authority v. Salazar, 2009 U.S. Dist. LEXIS 45137 (E.D. Cal. May 29, 2009):

Federal Rule of Evidence 602 limits lay witness testimony to factual matters of which the witness has personal knowledge. Federal Rule of Evidence 701 limits opinion testimony by lay witnesses to "opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [Testimony by Experts]." "The admissibility of lay opinion testimony under Rule 701 is committed to the sound discretion of the trial judge. . . ." Nationwide Transp. Fin. v. Cass Info. Sys. Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (quoting United States v. Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992)).

Environmental Intervenors argue that each of the objected-to declarants "opines on complex subjects such as the alleged cause of unemployment in the San Joaquin Valley, increasing demand at local food banks, declining police protection, or increasing crime rates, attributing all of these social ills to reduced water deliveries caused by implementation of the 2008 [BiOp]. However, none of these witnesses demonstrates the specialized knowledge required to opine on these matters." ... Environmental Intervenors further argue that the identified paragraphs in each declaration are inadmissible because they are (1) not based on facts of which the witness has personal knowledge, and (2) the opinions offered therein are not rationally based on the witness's own perception, or helpful to the Court's determination of facts at issue.... Plaintiffs rejoin, generally, that the declarations properly contain only simple observations and logical inferences based on those observations....

As to Ms. Wilkie, Environmental Intervenors object to the following paragraph:

I believe that the increase in the number of hungry people in out southern San Joaquin counties is directly related to the restrictions on the availability of water to the farms in our area. My belief is based on the fact that the need for assistance began to increase at approximately the same time the zero water allocations for our irrigation districts were announced, and the farmers started to lay off their employees, which significantly increased unemployment in our area.

.... Plaintiffs point out that, as the CEO of a large community food bank that serves Fresno, Madera, and Kings Counties, ... she is familiar with and knowledgeable of the demands of the food bank and the individuals that it serves.... It is reasonable to infer that she is familiar with the reasons why the individuals served by the food bank are unemployed and/or undermployed. Her opinion that the increased demand for food services is caused, at least in part, by low water allocation is based upon her personal observations and knowledge, not any impermissible scientific, technical, or other specialized knowledge. This lay opinion evidence is admissible. Environmental Intervenors' objection is OVERRULED as to paragraph 7 of the Wilkie declaration.

Mr. Silva is the mayor of Mendota and has been involved in city government, education, and commerce for 20 years.... Environmental Intervenors object to the following paragraphs from his declaration:

3. The hydrologic and regulatory drought has resulted in a zero water allocation from the Bureau of Reclamation ("Reclamation") to Westlands Water District, our region's primary supplier of water. The complete lack of irrigation water has caused the majority of the farmers in and around Mendota to leave their fields fallow. As a result, there have been significant layoffs from farms and agriculture support industries, and/or practically no hiring of seasonal labor. The current unemployment rate in Mendota is 40%. This unemployment rate represents more than a 10% increase since November 2008. Mendota's current rate of unemployment is one of the highest in California and in the nation.

4. The City of Mendota contracts with the Fresno County Sheriff for police protection services. The Sheriff has recently notified the city that there has been an increase in the crime rate in the city. In 2008, there was an 11% increase in the crime rate as compared to 2007. The percent increase in certain crimes, like aggravated assault, almost doubled in 2008. The city does not have crime statistics for 2009. Since the effects of the water restrictions were already beginning to impact the farm economy last year, I believe that this increase in the crime rate can largely be attributed to the significant increase in unemployment during the same time period. The city has plans to start its own police department in an effort to increase the safety of our community. However, since the water restrictions have depressed the farm economy in our region, the availability of funding for needed city polic[e] protection is uncertain.

... As a local government official, Mr. Silva is familiar with water supply, economic, employment, and community safety issues, including availability of funding for police services, affecting the City and residents he represents. This lay opinion evidence, which is not scientific or technical in nature, is admissible. Environmental Intervenors' objection is OVERRULED as to the Silva Declaration.

Ms. Sablan, is the mayor of Firebaugh and has been involved in the community for 30 years. Doc. 44 at P1. Environmental Intervenors object to the following paragraphs of her declaration:

3. The drought and the regulatory pumping restrictions on the operation of the Central Valley Project ("CVP") have already significantly impacted the community of Firebaugh. The lack of water is causing agricultural workers in Firebaugh and the surrounding communities to lose their jobs, resulting in a loss of livelihood and inability to provide for their families, and increases in negative social and economic impacts on the communities that depend on them.

4. In response to the significant pumping restrictions, many farmers have been unable to plant large portions of the areas surrounding Firebaugh, and many of the areas planted in permanent crops are barely being sustained. The direct and indirect impact of the loss of farming has resulted in a rise in unemployment. The current unemployment rate in Firebaugh is 40%.

5. As a result of the unemployment resulting from hydrologic conditions and regulatory drought, many people in Firebaugh are hungry. In an effort to address the crisis, the City of Firebaugh has undertaken several food drives. Once a month for the last three months, the City of Firebaugh has provided, with the assistance of corporate sponsorships and large farmers, an average of 1,000 meal boxes to people in the community. As the spring and summer progress, the number of hungry people in Firebaugh could potentially increase. While the City of Firebaugh is working to provide assistance, our efforts are not likely to be enough to avoid the significant impacts of hunger, particularly if unemployment continues to increase.

6. The significant agricultural land fallowing in and around Firebaugh is a direct result of the CVP delivery restrictions. As a result of the loss of agricultural production, there has been a significant reduction in local sales tax revenue. . . . These losses . . . have caused the City of Firebaugh to lay off three of its key upper level staff. As the size of the City of Firebaugh's staff has always been small as compared to other city governments, these layoffs are significant and will greatly impact city services. If the City of Firebaugh's tax revenue continues to decrease, it is possible that fire and police protection services will be faced with substantial cuts. . . .

7. School enrollment . . . has also been affected. The Schools in the rural areas around Firebaugh have experienced declining enrollment because the significant farm layoffs have resulted in dislocation of employees that had lived in on-farm housing. Many of these families with children have moved in with family or friends in town, often increasing the number of people living in a home in Firebaugh to include two or three families. The standard of living of the families with children moving into our City of Firebaugh schools has therefore declined significantly, and the crowding and stressful home life may be impacting the children's academic performance. At the same time, the schools in the rural areas around Firebaugh are losing significant state funding as every child that leaves results in a $ 5,000 loss in annual income to the schools. . . .

... Like Mr. Silva, as an elected official of the City of Firebaugh, Ms. Sablan has a duty to be familiar with the economic, education, and water supply conditions impacting the residents of the City. Her statements are admissible lay opinion evidence based on personal knowledge. Environmental Intervenors' objections to Ms. Sablan's declaration are OVERRULED.

Finally, Environmental Intervenors object to paragraphs 2 and 6 of the declaration of Baldomero Hernandez, the principal of Westside Elementary School, located approximately 45 miles southwest of Fresno... Paragraphs 2 and 6 provide:

2. The community that surrounds Westside is rural and heavily reliant on farming. The farmers in our area are fallowing their fields because they do not have enough water to sustain their crops. As a result, many people are losing their jobs. The parents of our students are among those most affected by the layoffs. Many of the parents of our students are leaving the area to find work.

6. The families of our students are struggling. Since the farm layoffs started, I have received many requests for assistance from families. Many are hungry. There also appears to be a large number of parents separating.

... Plaintiffs are correct that, as the principal of a grade school, it is normal for Mr. Hernandez to be reasonably familiar with the academic and personal issues facing the students and families that his school serves. Nothing in his declaration is scientific or technical in nature. Rather, his statements and opinions are based his own personal observations and knowledge. Environmental Intervenors' objections to the Hernandez declaration are OVERRULED.

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