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James P. Mueller/SBN: 013066 Douglas V. Drury/SBN: 011461 MUELLER & DRURY, P.C. 8110 E. Cactus Road, Suite 100 Scottsdale, Arizona 85260 Telephone: (480) 368-5511 Facsimile: (480) 368-5522 jamesmueller@muellerdrury.com dougdrury@muellerdrury.com Attorney for Defendants Aubuchon and Pestalozzi IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA Gary Donahoe and Cherie Donahoe, husband and wife, Plaintiffs, vs. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al., Defendants. Donald T. Stapley, Jr. and Kathleen Stapley, husband and wife, Plaintiffs, (ORAL ARGUMENT REQUESTED) (Assigned to the Hon. Neil V. Wake) DEFENDANTS LISA AUBUCHON AND PETER R. PESTALOZZIS AND ANDREW AND ANN THOMAS JOINT MOTION TO EXCLUDE PLAINTIFF EXPERT TERRY GODDARD LEAD No. CV-10-02756-PHX-NVW CONSOLIDATED WITH: NO. CV-11-00902-PHX-NVW

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vs. Sheriff Joseph Arpaio and Ava Arpaio, husband and wife; et al. Defendants. Defendants Lisa Aubuchon and Peter R. Pestalozzi (hereinafter Aubuchon) and Defendants Andrew and Ann Thomas (hereinafter Thomas) jointly move to exclude the testimony and report of Plaintiffs Donald and Kathleen Stapleys expert

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Terry Goddard dated May 10, 2013, pursuant to LRCiv 7.2(m), FRCivP Rule 26(a)(2)(A)(B) and FRE 702, 703. The report fails to meet the relevant legal standards for admissibility on many levels, from the fact that Goddard cannot qualify as an expert on RICO, to his extensive discussion of issues excluded by the Court, to his extensive personal involvement in the underlying matters. Goddard opines extensively on the criminal actions filed by Aubuchon and Thomas against Stapley, as well the ethics of the filings and press releases. These matters are not before this Court as to Aubuchon and Thomas. Goddards extensive personal involvement in the underlying matters in this action, as well as with Thomas, calls into question his independence, methodology and ultimately prevents him from testifying as an expert witness herein. This Motion is supported by the attached Memorandum of Points and Authorities.

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RESPECTFULLY SUBMITTED this 23rd day of August, 2013. MUELLER & DRURY

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/s Douglas V. Drury Douglas V. Drury, Esq.

BROENING OBERG WOODS & WILSON, P.C.

s/ Sarah L. Barnes Sarah L. Barnes, Esq. MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL STATUS In response to Aubuchons and Thomas previous Motions to Dismiss, the Court

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dismissed Counts 2, 5 and 8 of Stapleys Second Amended Complaint to the extent they
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relied on the criminal charges filed by Aubuchon and Thomas in Stapley I and Stapley II. The Court also dismissed Counts 11 and 12 in their entirety. The Court denied Aubuchons and Thomas Motions as to Counts 1, 7 and 8 to the extent they pertained to Thomas and Aubuchons participation in the filing of the RICO action. Aubuchon and Thomas jointly took an interlocutory appeal on those counts to the Ninth Circuit,

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which remains pending.1 The Counts presently before this Court pertaining to both Aubuchon and Thomas are Counts 2 and 5 (malicious prosecution for Stapley I and Stapley II criminal charges, insofar as they pertain to investigations); Count 7 (Intentional Infliction of Emotional Distress); Count 8 (wrongful arrest and illegal search to the extent the allegations do not relate to the criminal charges or the RICO appeal), Count 10, (Section 1983 wrongful search), and Count 4 (wrongful arrest) against Aubuchon. II. LEGAL STANDARD Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) articulated two tests for admissibility of expert witness testimony; the testimony must be relevant and it must be reliable. Rule 702 further requires that the evidence or testimony

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assist the trier of fact to understand the evidence or to determine a fact in issue. This
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condition goes primarily to relevance. Presumably, this relaxation of the usual

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requirement of first-hand knowledge--a rule which represents a most pervasive manifestation of the common law insistence upon the most reliable sources of

information, (citation omitted) -- is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. Id. at 592. III. GODDARDS REPORT DOES NOT CONTAIN RELEVANT, ADMISSIBLE EVIDENCE AS TO AUBUCHON AND THOMAS. This Courts Order of April 9, 2012 made clear that Aubuchon and Thomas have absolute immunity from any claims arising from their filing criminal charges in Stapley

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I & II. To the extent Plaintiffs, particularly Stapley, has squarely grounded any claim
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on prior criminal prosecution by Thomas and Aubuchon, those claims can and must be dismissed at this time. (April 9, 2012 Order at p. 42, lines 14-16).

The appellate panel affirmed the trial court in an opinion filed August 16, 2013. Jurisdiction has not yet returned to the District Court. If and when jurisdiction returns to this Court, Goddard is still not qualified to opine on this issue for the reasons set forth in Sections III & IV below.

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While Goddards report states that it pertains to the investigation and prosecution of Donald Stapley (See Expert Report of Terry Goddard (Goddards Report, attached hereto as Exhibit 1, at paragraph 1), in reviewing the entire report, Goddard does not limit his opinions and criticisms to matters currently before the Court as to Thomas and Aubuchon. Rather, the bulk of Goddards report deals with alleged problems with the criminal filings and ethical issues.2 There are substantial, structural faults with the report. Goddard lists key facts. However, he also adopts conclusions of other investigators, particularly the Bar findings. Rule 703, Federal Rules of Evidence requires that an expert base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Goddard made no effort to confirm any of they underlying facts. For

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example, he criticizes Aubuchon for filing Stapley I charges after the statute of
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limitations, but admits that he made no effort to get her position on the issue although
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that information was readily available to him. Exhibit 2, pp. 133, ll. 16 - 134, ll. 5. The State Bar trial excluded substantial information regarding the Stapley investigations for reasons particular to that action. Goddard reviewed no investigatory material, instead rubber-stamping the Bar conclusions. Goddard begins his opinion testimony in 11, page 6, Overcharging and Statute of Limitations in Stapley I. Goddard critiques the Stapley I criminal filing, opining that too many charges were filed. Exhibit 1, 11, p. 6. He specifically criticizes some

Goddard not only spends 10 pages in his report claiming that there were ethical violations, an issue not raised by Stapley and not an element of any claim before this Court, he acknowledged throughout his deposition that the focus of many of the sections in his report was to opine on conflicts of interest in violation of the ethical rules and his ultimate opinion is that they violated their ethical duties, for which he acknowledges there is no private right of action. See Excerpts of Transcript of Terry Goddard Deposition, attached hereto as Exhibit 2, at pp. 73, 11. 5-16; 106, ll. 13-23; 107, ll. 23108, l. 2; 108, ll. 19-22; 109, ll. 19-20; 114, ll. 15-24; 118, ll. 2-6; 119, 1. 23120, l. 2; 131, l. 19132, l. 1. Yet he analyzes no ethical rules or standards except as they pertain to press releases, instead issuing conclusions without appropriate analysis and acknowledges that he has not even seen Stapleys claims herein. Exhibit 1 at pp. 1-15; Exhibit 2 at pp. 84, ll. 6-8; 110, ll. 12-15.

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charges: forgery, false swearing and perjury charges are deemed highly problematic, and that filing felony charges was overreaching. Id., 11, p. 7. In 12, Goddard again focuses on Stapley I & II criminal prosecutions, opining that there were conflicts of interest in bringing the criminal charges. Id., pp. 8-10. In 13, Goddard criticizes the RICO complaint filing as being a conflict of interest and for failing to state a claim. Id., pp. 10-11, In 14, Goddard alleges a failure to follow established oversight procedures in RICO, Stapley II criminal prosecution, and the Donahoe criminal filing, which is not before the Court. Id., pp. 11-12. In 15, Goddard opines that press releases were improper ethical violations. Id., pp. 12-13. There is no allegation in this case that Aubuchon was involved in the press releases. Goddard elides this issue by referring to releases by the Thomas/Aubuchon

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team. Moreover, there is no claim for defamation against Thomas or Aubuchon, and
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the focus again of Goddards opinion is on the ethical violations, an issue not before
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this Court. The only allegations related to press releases in connection with Stapley in Plaintiffs Complaint were that Arpaio issued a public statement asserting that the warrant was executed as part of a new investigation of a bribery case involving Don and businessman Conley Wolfswinkel, and Thomas and Arpaio announced that Thomas was dismissing Stapley II and sending the case to Gila County Attorney, Daisy Flores (Flores) for review. See Plaintiffs SAC [Dkt # 246] at paragraphs 150, 221) Goddard demonstrates bias by issuing conclusions without factual support. He includes Aubuchon in his press release analysis, but when pressed at his deposition, he admitted he had seen no evidence tying Aubuchon to the releases. Exhibit 2, pp. 144, ll. 5-12; 145, ll. 5-20. Similarly, Goddard confirms that his opinion in 16 Improper Efforts to Control Investigation After Referring to Another Prosecuting Agency, is in relation to ethical violations. Exhibit 2, pp. 117, ll. 5-7; 118, ll. 2-6. And in 17, Goddard not only

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admits that he has no personal knowledge of the crux of his opinion, that Thomas and Aubuchon did not investigate any other officials, and so they must have been fishing for crimes against Stapley, he also acknowledges that not all investigations lead to charges. Exhibit 2, pp. 121, l. 16 122, l. 2; 122, l. 21 123, l. 7. Finally, 18 states Goddards discrete opinions as to the case, which are wholly unrelated to Stapleys claims presently before this Court. He opines that Aubuchon and Thomas violated their ethical duties . . . in order to pursue their personal and political vendetta against Mr. Stapley. Exhibit 1, p. 15. He sets forth his specific bullet point opinions: 1. ignore[d] the statute of limitations (Stapley I ) 2. large number of unsustainable charges (Stapley I & II)

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3. charge as felonies crimes which should be misdemeanors.

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(Stapley I & II)

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4. Included Stapley in civil RICO. 5. Ignored charging procedures and charging reviews (Stapley I & II) Id. Every conclusion reached by Goddard is not an appropriate subject of expert testimony in this matter and is not relevant to the issues before the Court. No attempt is made to tie any of these alleged ethical violations into any of the causes of action remaining in this matter. The Court has already ruled that Aubuchon and Thomas have absolute immunity for any actions taken in connection with the filing of Stapley I and II. Goddard ignores the Courts ruling, intertwining a discussion of the two criminal filings throughout his analysis and conclusions, impermissibly tainting it and preventing its use.3

Goddards Appendix B (Materials Reviewed) does not list the Courts April 9, 2012 Order among the items reviewed.

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Goddard admitted at his deposition that he was unaware of the Courts April 9, 2012 ruling and conducted his analysis without regard to whether an act on which he opined was an immune act. Also, he has not reviewed Stapleys claims. Exhibit 2, pp. 84, ll. 3-8; 88, ll. 15-19. Goddards discussions of such immune acts are the focus of the report and inexorably intertwined throughout the report. Id., 99, ll. 11-16; 100, ll. 1324; 106, ll. 3-12; 128, ll. 9-22; 129, ll. 4-7; 137, l. 14138, l. 11; 139-144. After being told that the Stapley I and II criminal charges are off the table as to Aubuchon and Thomas, Stapley tries to bring them back by use of this report. Thomas and Aubuchon have immunity on these claims, and thus the opinions on the charges are not relevant. Similarly, the RICO issues raised and reviewed by Goddard are not presently before the Court and Goddard is not qualified to opine on RICO; thus those

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sections of the report are not appropriate for use herein.

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IV.
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GODDARDS REPORT IS NOT RELIABLE BECAUSE IT DOES NOT CONTAIN INDEPENDENT INFORMATION ARRIVED THROUGH SOUND METHODOLOGY. In addition to the fatal flaw of relying extensively on excluded information

relating to criminal prosecutions and irrelevant ethical violations to reach his conclusions, Goddards report is unreliable and biased because of his own conflicts of interest and extensive personal knowledge and involvement with Aubuchon, Thomas, MCSO and MCAO. The testimony of a witness that has a conflict of interest resulting in a bias or prejudice is not reliable. Although not directly covered by a specific rule of evidence, a witness may be impeached by showing that he or she is biased, has an interest in the outcome of the litigation, is prejudiced in some relevant way, or has a motive to testify in a particular way. Behler v. Hanlon, 199 F. D. 553, 556 (D.Md. 2001 citing United States v. Abel, 469 U.S. 45-49-52 (1984). In determining whether to disqualify an expert based on a prior relationship with a party, courts will consider the competing policy objectives inherent in disqualifying

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experts. Cordy v. The Sherwin-Williams Co., 156 F.R.D. 575,580 (D.N.J. 1994) (citing English Feedlot Inc., Norden Laboratories, Inc. 833 F.Supp. 1498, 1505 (D. Col. 1993), Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 281-282 (S.D. Ohio 1988)). The interest in the expert to pursue a trade is balanced against any prejudice that might occur if an expert is not disqualified. Access to confidential information and an objectively reasonable confidential relationship are two factors that weigh in favor of disqualification of an expert in furtherance of public policy. Procter & Gamble Co. v. Haugen, 184 F.RD. 410, 413 (D. Ut. 1999) (citing Koch Refining Co. v. Jennifer L. Boudreaux 85 F.3d 1178, 1181 (5th Cir. 1996)). .typically that analysis is applied in a situation where an expert has a prior relationship with an opposing party.

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Also, under the analysis required by Rule 702, absent independence from the
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party or its advocates, a testifying expert lacks the credibility necessary to be of

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assistance to the trier of fact. See Fed.R.Evid. 702 (Expert testimony will be admissible first if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, ....). See, also, Mondry v. Speedway Superamerica LLC, 1999 WL 1072623, *7 (N.D. Ill. 1999) (The court concludes that, while Dr. Abdul is qualified to render an expert opinion in this case, his credibility is suspect because, ... he is not truly independent of [the defendant] ....); Polsby v. Shalala, 925 F.Supp. 379, 392 (D. Md. 1996) (physician's lack of independence as an expert witness destroys his credibility); Folden v. Washington State Dept. of Social & Health Svs., 744 F.Supp. 1507, 1522 (W.D. Wash. 1990) (listing a number of points that undermined the expert's credibility, including the fact that the expert held an interest in the outcome and was therefore not independent), aff'd, 981 F.2d 1054 (9th Cir. 1992). Under that circumstance, the testimony of experts simply cannot assist the trier of the fact to understand the evidence or to determine a

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fact in issue. That, of course, is the sine qua non of admissibility of expert testimony. Trigon Ins. Co. v. United States, 204 F.R.D. 277, 295 (E.D. Va. 2001). Goddards independence is squarely at issue. In reviewing this notion of independence, one court noted that: Black's Law Dictionary is of little help since its definitions reach only the obvious. Common to the several definitions, however, is the trait of impartiality, which constitutes a distinguishing characteristic of an expert. One aspect given by Black is one who can see all sides of a subject. Another aspect is, persons selected by the Court or parties in a cause, on account of their knowledge and skill . . .. It is evident from the definitions that an expert is expected to owe his allegiance to his calling and not to the party employing him. In order to be an expert one must be in a position to testify as an expert and not as a partisan. (Emphasis supplied). Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D.

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397, 406 (E.D. Va. 1975).

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A.
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Goddard Has Had Extensive Involvement With The Parties

First, Goddard was personally involved in many of the matters giving rise to the disputes at issue. His Attorney Generals Office refused to take referrals from MCAO/MCSO and stopped doing business with them altogether. Exhibit 2, pp. 149, ll. 21-25. Goddard also acknowledges that the MCAO/MCSO investigated the Arizona Attorney Generals Office while he was in office, and that he sent a letter to Mr. Thomas demanding he drop his investigation because Thomas had lost to Goddard in the 2002 Attorney General race. Exhibit 2, pp. 41, ll. 11-24; 42, ll. 2-13. In fact, the Bar opinion (p. 23), on which Goddard relied heavily in preparing his report (Exhibit 1 throughout; Exhibit 2, pp. 85, l. 21-86, l. 1; 87, ll. 4-6; 95, ll. 15-17; 139, ll. 14-18), noted that multiple exhibits revealed that Mr. Thomas and the Sheriff often proclaimed their criminal investigations of this same Mr. Goddard as Attorney General, but none

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were prosecuted.

Goddard even admitted that he declared the MCAO/MCSO

investigation of his office as a political witch hunt. Exhibit 2, p. 150, ll. 4-10. Goddard also admitted he was involved in the Sandra Dowling case, where he was a political ally of Stapley. Exhibit 2, pp. 55, ll. 5-7; 59, ll. 3-14; 154, ll. 12-17. In that matter, Sandra Dowling, former Superintendent of Public Instruction for the State of Arizona, was indicted with 25 felony counts in connection with alleged misappropriations of funds. See Dowling v. Arpaio, 858 F. Supp. 2d 1063, 1073 n.12 (D. Ariz. 2012). This indictment stemmed from tips from the Maricopa County Board of Supervisors office, and followed ongoing disputes between Stapley and Dowling. Stapley threatened Dowling with turning her over to the Attorney General (Goddard) if she did not comply, showing Goddard and Stapleys ongoing coordination. Id.

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Goddard was also a political opponent of Thomas in the 2002 Attorney General race,
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which Goddard won. Since that time, Goddard admits to maintaining a file on
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Thomas in his home with various information on Thomas. Exhibit 2, p. 76, l. 2477, l. 10. And Goddard believed the Bar should have acted far more swiftly in disbarring Mr. Thomas. Exhibit 2, p. 68, l. 14 69, l. 4. Goddard was heavily involved in another of the underlying disputes between Stapley and Thomas, the competing methamphetamine campaigns, for which Goddard was a very close ally of Stapley and critical of Thomas. Exhibit 1, p. 3; Exhibit 2, pp. 32, l. 18- 37, l. 24; 38, l.17 39, l. 20. Further solidifying his bias, Goddard acknowledges that he endorsed and actively supported a candidate running against Thomas in the 2008 county attorney election, because he believed strongly that Thomas should not be county attorney. Exhibit 2, pp. 60, l. 12 62, l. 21. He admits that this was in part because Thomas often rebuffed Goddards efforts to coordinate with him and discontinued numerous longstanding cooperative efforts between their offices, which they felt keenly and

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caused his office to suffer, including costing them added expense. Exhibit 2, pp. 39, ll. 4-20; 41, ll. 11-19; 150, l. 21 151, l. 15. Goddard is also a long time friend of Tom Irvine, who was a central target of the RICO lawsuit and underlying disputes. Goddard not only consoled Mr. Irvine at the time he was being pursued by Mr. Thomas for the claims against him and agreed with Irvines implicit resentment towards Thomas, he even consulted with Irvine in preparing his report in this matter. Exhibit 2, pp. 48, ll. 819; 52, l. 4 53, l. 19; 72, l. 23 73, l. 4.4 Aubuchon filed a civil suit against Goddard individually and others. Maricopa County Superior Court Case No. CV2011-014754. Goddard won a Motion to Dismiss and was awarded sanctions against Aubuchon. Those sanctions are currently on appeal before the Arizona Court of Appeals. Goddards report does not disclose that he was a

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defendant in the Aubuchon action (Aubuchon has since dropped him as a Defendant in
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an amended complaint).5

This is an inherent conflict of interest that taints his

proffered opinions and renders them unreliable. Goddards Attorney Generals office instituted an investigation against Aubuchon and she was forced to deal with this investigation for months. Incredibly, Goddard denies knowledge of the investigation. Exhibit 2, p. 150, ll. 18-20.6 MCAO and the Arizona Attorney Generals office also had conflict over the AG investigation into David Peterson. MCAO/MCSO investigated the AGs office on this issue. The Arizona Attorney Generals Office had threatened Peterson with felony

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Goddard admits to yet another dispute with Mr. Thomas, that being the interpretation of the human smuggling laws and laughed about being reminded of Thomas letter to Goddard criticizing him on that front. Exhibit 2, pp. 43, l.. 23 44, l. 21. 5 At his deposition, Goddard claimed that he did not remember that he was sued by Aubuchon (Exhibit 2, p. 136, ll. 7-10).
Aubuchon has documentation to support her contention and, if this issue is disputed, seeks permission to provide documentary proof in furtherance of justice as allowed by A.R.S. Section 13-2812(A).
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charges for filing a false financial statement7 (the parties reached an agreement for a guilty plea on a single misdemeanor count). Finally, the Order disbarring Thomas and Aubuchon issued April 10, 2012.8 Three days later, on April 13, 2012, Terry Goddard, Paul Charlton, Phil Gordon and Richard Romley wrote a joint letter to United States Attorney General Eric Holder urging him to bring closure to the criminal investigation ongoing against Thomas, Aubuchon and others. Exhibit 2, pp. 147, l. 14 148, l. 20. Although the call for action is couched in neutral terms, the preceding paragraphs make clear the writers opinions: The Bar opinion found that not only had Mr. Thomas violated the ethical rules in order to intimidate and smear political adversaries, the opinion found evidence which proved, beyond a reasonable doubt, that Mr. Thomas had violated 18 U.S.C. 241, Conspiracy Against Civil Rights Yet even as we acknowledge the just result of this weeks actions, we draw your attention to the Bars findings which indicate that Maricopa County Sheriff Joseph M. Arpaio worked in concert to commit the crimes for which Mr. Thomas has, to a degree, been held accountable. (Copy of April 13, 2012 Letter attached hereto as Exhibit 3). Prior to being retained as an independent expert in this matter, Goddard, a long-time political foe of Thomas had declared that he committed crimes, and he issued this letter while a sole practitioner and not in any official capacity, and thus with no obligation to do so. Goddard obviously has a strong personal interest in wanting to bring Thomas to justice.

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The conclusion that must be drawn from the foregoing involvements between
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Goddard and Thomas/Aubuchon, as well as the MCAO and MCSO, is that Goddards personal interest and knowledge leave no question that Goddard is a partisan in this

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In discussing the Peterson matter, Goddard criticizes Aubuchon for filing felony charges claiming they should have been filed as misdemeanors. Ex 1, p. 7. 8 Goddard was even listed as a witness in the Bar trial but did not testify.

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matter. His Attorney Generals Office investigated Thomas and Aubuchon, and they investigated him and the Attorney Generals Office. Aubuchon has sued him. He was a central player in the Dowling dispute, which also involved Stapley. He is a close personal friend of a central target of the underlying Court Tower Dispute. Goddard has also been a long time opponent of Thomas on several levels, and has made numerous efforts to bring Thomas down, his report just the latest effort. And, more telling is that Goddard left many of these involvements out of his report. B. Goddard Has No Federal RICO Litigation Experience

Additionally, Goddard opines on the RICO matter, but apparently has no extraordinary knowledge of such matters and has not established himself as an expert on RICO matters. His Curriculum Vitae does not list any federal RICO experience, and

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his report does not even list the RICO complaint herein as an item he reviewed in
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making the report. Goddard admits that the sole basis for his opinion on the RICO
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complaint is a read through of that complaint and the statute, having never been involved in federal RICO litigation in any other capacity, except to administer funds that were obtained after the fact and that he has no other training in it whatsoever. Exhibit 1, pp. 1-2; Appendices A & B; Exhibit 2, p. 21, l. 20 22, l. 6; 23, ll. 9-24. It is ironic that Goddard criticizes Aubuchon for filing a complaint that was deficient for multiple failures to plead the elements of the RICO statute and offers this as an expert opinion despite having no RICO experience himself. Even if Goddard claims that he is merely repeating the findings of others, he is putting the imprimatur of an expert on his statements. His failure to provide any basis to render an expert opinion on the federal RICO matter prevents him from doing so. C. Goddard Relied Almost Exclusively on The Bar Ruling

Goddards knowledge is not based on an independent review of the information available in this case, instead relying almost exclusively on the summaries and

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conclusions of others, especially the Bar matter which involved issues not before this Court, as related above. The Bar did not review immunity issues; they were irrelevant to that investigation. At the same time, the Bar considered political motivations, which are explicitly prohibited in an immunity analysis. In Appendix B to his Report, Goddard lists the items he reviewed. These are limited to the Bar testimony, depositions and rulings, similar information from the employment hearing for Aubuchon; the Aubuchon and Thomas depositions in this matter and numerous news releases, letters and newspaper articles. The underlying investigations, subpoenas, search warrants and reports at the heart of this matter were not reviewed.9 The court in U.S. E.E.O.C. v. Rockwell Intern. Corp. stated: It is obvious that [the expert] performed analyses he would not normally perform. He included analyses that he would not normally include. He included calculations on upon which he did not rely and did not fully believe should be followed. He relied on materials, reports and summaries given to him by counsel, and failed to verify the information from reliable, independent sources. 60 F.Supp.2d 791, 797 (N.D. Ill. 1999). As a result, the court concluded that

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[the experts] own admissions demonstrate that he failed to employ the same level of
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intellectual rigor that characterizes the practice of experts in his field, or even his own normal practice. Id. The court observed that [a] proffered expert must bring to the jury more than the lawyers can offer in argument. citing Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992). D. Goddard fails to meet the Daubert Standard.

The second prong of Daubert primarily concerns relevance. Daubert, 509 U.S. at 591. The court must determine whether the proffered expert testimony is "sufficiently

Stapley has moved for Summary Judgment against Thomas claiming collateral estoppel on the bar findings. Similarly, this opinion adopts the bar findings as the primary basis for Goddards opinions.

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tied to the facts of the case that it will aid the (trier of fact) in resolving a factual dispute. Id. (citation omitted). This factor is also described as "fit," meaning whether the testimony fits the factual dispute. "' Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996), citing Daubert, 509 U.S. at 591. Goddards report completely fails this fit test. It does not speak to the facts and circumstances of Stapleys complaint (Goddard admits he has not even read the complaint) and the issues he raised, instead focusing on general conclusions of others. Goddard mentions the investigations, but the report focuses almost exclusively on the criminal and RICO filings.

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Goddards report does nothing to assist the trier of fact. Instead, it will prejudice
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the jury with information that should be excluded (allegations of bad conduct related to
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the criminal charges prominent throughout the opinion); confuse the jury with matters irrelevant to any count (the analysis of the ethics of press releases; the criminal charges against Judge Donahoe) and provide an expert imprimatur on matters for which Goddard has no expertise (RICO). V.
CONCLUSION

For the reasons set forth herein, Aubuchon and Thomas hereby jointly move to exclude Terry Goddard as an expert witness and his May 10, 2013 report as an exhibit in this matter. RESPECTFULLY SUBMITTED this 23rd day of August, 2013. MUELLER & DRURY, P.C.
By: /s/Douglas V. Drury Douglas V. Drury, Esq.

BROENING OBERG WOODS & WILSON, P.C.

By: /s/ Sarah Barnes (with permission) Sarah L. Barnes, Esq.

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Case 2:10-cv-02756-NVW Document 1044 Filed 08/23/13 Page 16 of 16

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CERTIFICATE OF SERVICE On this 23rd day of August, 2013, the foregoing was electronically transmitted to the Clerks Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Michael C. Manning STINSON MORRISON HECKER, LLP 1850 N. Central Avenue, Ste. 2100 Phoenix, Arizona 85004-4584 Attorneys for Plaintiffs Donahoe and Stapley Daryl A. Audilett, Esq. John J. Kastner Jr., Esq. AUDILETT KASTNER, PC 335 N. Wilmot Road, Suite 500 Tucson, AZ 85711 Attorneys for Defendants Arpaio Jeffrey S. Leonard Sharon Brook Shively Saks Tierney PA 4250 Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3647 Attorneys for Defendant Maricopa County Barry M. Markson THOMAS, THOMAS & MARKSON, PC 2700 N. Central Avenue, Ste 800 Phoenix, Arizona 85004-1185 Attorneys for Defendants Hendershott By: /s/ Kristi Tesori

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