Doe v. Lewis Roca Rothgerber Christie LLP

          IN THE UNITED STATES DISTRICT COURT                        
            FOR THE DISTRICT OF NEW MEXICO                           


JANE DOE,                                                                 

Plaintiff,                                                           

v.                                 No. 1:20-cv-01365-SMD-LF          

LEWIS ROCA ROTHGERBER                                                     
CHRISTIE LLP, and DOES 1–60,                                              

Defendants.                                                          


            MEMORANDUM OPINION AND ORDER                             

THIS MATTER is before the Court on the following motions filed by Defendant Lewis 
Roca Rothgerber Christie LLP (“Lewis Roca”).  The Court has reviewed the parties’ submissions, 
the record, and the relevant law, and for the reasons below:              
•  Defendant’s Daubert Motion and Memorandum to Exclude Testimony of Robert K. 
  Sall (Doc. 143) is DENIED.                                         

•  Defendant’s Daubert Motion and Memorandum to Exclude Testimony of Dorene A. 
  Kuffer (Doc. 144) is DENIED.                                       

•  Defendant’s Motion for Summary Judgment Regarding Plaintiff’s Claims That Require 
  a Legal Expert (Doc. 155) is DENIED.                               

                     BACKGROUND                                      
This case arises out of Plaintiff Jane Doe’s claims for child sexual abuse against a well-
known, Rhode Island-based boarding school, Portsmouth Abbey School, the institution that hired 
and retained Plaintiff’s abuser, Michael Bowen Smith (“Smith”).  Plaintiff attended Portsmouth 
Abbey from September 2010 to May 2014.  In December 2020, Plaintiff filed a complaint against 
Portsmouth Abbey in the United States District Court for the District of Rhode Island, alleging that 
the school administrators failed to report and prevent the abuse despite receiving warnings.  See 
Doe v. Order of St. Benedict in Portsmouth, Rhode Island, 717 F. Supp. 3d 220 (D.R.I. 2024).  The 
District of Rhode Island ruled that Plaintiff’s claims against the school were procedurally barred 
by the statute of limitations.  Id. at 224.  In December 2020, Plaintiff also filed this action for 
professional negligence, breach of contract, and breach of fiduciary duty against Defendant Lewis 
Roca, based on legal services Lewis Roca provided to Plaintiff in connection with her petition for 
an order of protection against Smith.  See Doc. 1-2.  Plaintiff alleges that Lewis Roca attorneys 

knew or should have known Plaintiff had potential claims against Portsmouth Abbey arising from 
the abuse but never advised Plaintiff of these claims or the relevant statute of limitations.  Id. at 2.  
Plaintiff also alleges that Lewis Roca never disclosed that the law firm often defended the Catholic 
Church in claims brought by abuse survivors or explained that this presented a potential conflict 
of interest.  Id. at 2–3.                                                 
                    LEGAL STANDARD                                   
Under Federal Rule of Evidence 702, a witness may be qualified as an “expert” by her 
“knowledge, skill, experience, training, or education.”  A qualified expert is permitted to testify 
“in the form of an opinion” if (a) the expert’s scientific, technical, or other specialized knowledge 
will help the trier of fact understand the evidence or determine a fact in issue; (b) the testimony is 

based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; 
and (d) the expert has reliably applied the principles and methods to the facts of the case.  Fed. R. 
Evid. 702.  When ruling on motions to exclude or otherwise limit expert testimony, the Court is 
mindful that its role as gatekeeper is not intended to serve as a replacement for the adversary 
system.  Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1090 (10th Cir. 1994).  Ultimately, “the 
rejection of expert testimony is the exception rather than the rule.”  Fed. R. Evid. 702 advisory 
committee’s note to 2000 amendment.                                       
                      DISCUSSION                                     
I.   Defendant’s Motion to Exclude Robert Sall (Doc. 143)                 
Robert Sall is an attorney admitted to practice in California.  Doc. 211-1 at 223.  He has 
practiced as an attorney for 44 years and is a Certified Specialist in Legal Malpractice Law by the 
State Bar of California’s Board of Legal Specialization.  Id.  For the past 40 years, his practice has 
consisted  primarily  of  prosecuting  and  defending  cases  involving  attorney  conduct  and 
professional responsibility, legal malpractice, attorney-client fee disputes, and business litigation.  

Doc. 211-1 at 225.                                                        
Sall  is  expected  to  testify  that  Defendant  acted  below  the  standard  of  care  in  its 
representation of Plaintiff and breached its fiduciary duties by failing to investigate or disclose 
potential conflicts of interest and failing to advise Plaintiff of her potential alternative options.  See 
Doc. 211-1 at 235–38.  According to Sall, Defendant’s conduct constitutes a violation of the 
standard of care for attorneys practicing in “any jurisdiction that has substantially implemented the 
Model Rules of the American Bar Association.”  See Doc. 181 at 2.         
Defendant moves to exclude Sall’s proposed opinions and testimony.  Doc. 143 at 1. 
Defendant argues first that Sall, a California attorney, is unqualified to testify to the standard of 

care and fiduciary duties applicable to New Mexico attorneys, and second that Sall is unqualified 
because he lacks relevant experience in seeking orders of protection or practicing in domestic 
violence courts.  Id. at 2, 4.                                            
a.  Whether Sall Is Qualified to Opine on the Standard of Care and Fiduciary 
  Duties Applicable to New Mexico Attorneys                          
 Defendant argues that because Sall is not licensed to practice in New Mexico, he is not 
qualified to opine on the applicable standard of care for New Mexico attorneys, the fiduciary duties 
New Mexico attorneys owe to their clients, or the scope of the engagement letter between Plaintiff 
and Lewis Roca.  Doc. 143 at 7–13.                                        
Defendant cites no authority to support a per se rule that an attorney may not opine 
regarding the standard of care for attorneys in a state where that attorney does not practice.  To the 
contrary, district courts in this and other circuits have qualified out-of-state attorneys as experts 
depending on their areas of research.  E.g., Hamilton v. Silven, Schmeits & Vaughan, No. 09-cv-
1094-SI, 2013 WL 2318809 (D. Or. May 28, 2013) (declining to exclude New York attorney as 
expert on Oregon standard of care); CDX Liquidating Trustee ex rel. CDX Liquidating Trust v. 
Venrock Assocs., 411 B.R. 571 (Bankr. N. D. Ill. 2009) (holding law professor specializing in 

corporate governance law was qualified to opine on board of directors’ fiduciary obligations under 
Delaware law even though he had never practiced in Delaware); Hjelle v. Ross, Ross & Santini, 
No. 07-cv-00006-WDM-KLM, 2007 WL 5328994 (D. Wyo. Dec. 19, 2007) (finding out-of-state 
attorneys well qualified and sufficiently familiarized with Wyoming law to testify as standard of 
care experts); Biltmore Assocs., L.L.C. v. Thimmesch, No. 02-cv-2405-HRH, 2007 WL 5662124 
(D. Ariz. Oct. 15, 2007) (noting California attorney and proposed “standard of care” expert 
previously testified in legal malpractice cases in Arizona).              
Here, Sall is expected to testify on whether Defendant failed to comply with New Mexico 
Rules of Professional Conduct and his opinions are based on Rule 16-104 (“Communication”), 
Rule 16-106 (“Confidentiality of information”), and Rule 16-107 (“Conflict of interest; current 
clients”).  Although Sall is not licensed to practice in New Mexico, Sall familiarized himself with 
the relevant New Mexico Rules of Professional Conduct in preparing his opinions in this matter.  
He also states that he can testify on an attorney’s compliance with the New Mexico Rules of 
Professional Conduct to the extent that the New Mexico standards are consistent with the Model 
Rules of Professional Conduct.  Doc. 143 at 4.  New Mexico Rules 16-104, 16-106, and 16-107 
are identical in substance to their ABA counterparts Rules 1.4, 1.6, and 1.7.  Indeed, apart from 
Sall’s use of the phrase “uberrima fides” in his report—a phrase that does not appear in either the 

New Mexico or ABA Model Rules—Defendant does not identify any difference between the two 
sets of standards.                                                        
b.  Whether Sall Lacks Relevant Experience Seeking Temporary Restraining 
  Orders                                                             
Defendant further argues that Sall does not practice family law and lacks experience 
seeking temporary restraining orders in domestic violence courts or otherwise.  Doc. 143 at 10–
11.  The Court agrees that Sall has limited experience seeking orders of protection in civil or 
domestic violence courts.  However, Plaintiff intends to call a separate expert—Dorene Kuffer—
to testify to the standard of care regarding orders of protection in New Mexico.  Sall is not required 
to provide testimony on the standard of care for orders of protection to offer an opinion on whether 
Defendant failed to comply with New Mexico Rules 16-104, 16-106, and 16-107.  See Keller v. 
Arrieta, No. 20-cv-00259-KG-SCY, 2023 WL 3483937, at *2 (D.N.M. May 16, 2023) (“an expert 
need not be relevant to every element of every claim”).                   
II.  Defendant’s Motion to Exclude Dorene Kuffer (Doc. 144)               

Dorene Kuffer is an attorney licensed to practice in New Mexico and owns a law firm 
focusing on domestic relations cases, including civil restraining orders and domestic violence 
cases.  Doc. 211-1 at 268.  As part of her practice, she has represented approximately 150 
individuals seeking domestic violence orders of protection.  Id.  She has also lectured extensively 
on family law issues in New Mexico.  Id.                                  
Defendant moves to exclude Dorene Kuffer from offering expert testimony in this case.  
See Doc. 144 at 1.  Defendant argues that Kuffer is unqualified because she has not encountered 
the circumstances in Plaintiff’s order of protection matter, that her opinions are inconsistent with 
the facts, and that her opinions contain impermissible legal conclusions.  Id.  

a.  Kuffer’s Qualifications                                          

Defendant argues that Kuffer should be barred because she relies on her experience, rather 
than “rigorous methodology” and that her experience is inapplicable to the facts of this case.  Doc. 
144 at 11.  An expert’s reliance on experience alone does not necessarily render her opinion 
unreliable.  See Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.  To the contrary, 
Rule 702 expressly contemplates that an expert may be qualified on the basis of experience.  Id.; 
see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999) (“no one denies that an 
expert might draw a conclusion from a set of observations based on extensive and specialized 
experience”).                                                             
In this case, however, Defendant argues that Kuffer is not familiar with the applicable 
standard of care because she has not encountered an order of protection matter involving “indirect, 
passive” harassment where her client first filed a pro se petition in civil court before retaining 
Kuffer to file a petition in domestic violence court.  See Doc. 144 at 10–11.  Defendant cites no 
authority to support excluding Kuffer’s testimony in its entirety because Kuffer has not represented 
a client in a temporary restraining order with identical facts and procedural background as 
Plaintiff’s case.1                                                        
As Plaintiff points out in her response, Kuffer’s experience includes “thousands of DV 
cases” and “ten cases” that “involved a person stalking the victim online only.”  See Doc. 179 at 
6–8.  The Court declines to find that this amounts to “no applicable experience.”  See Doc. 144 at 
12.  Defendant may attempt to argue that a jury should not credit Kuffer’s conclusions because her 
experience with cases involving online harassment is less extensive, but that goes to the weight a 

jury should give the evidence rather than its admissibility.  The Court finds that Kuffer is qualified 
to opine in this matter.                                                  
b.  Reliability of Kuffer’s Opinions                                 

Defendant  argues  that  Kuffer  relies  on  several  assumptions  that  are  speculative  or 
“inconsistent  with  existing  facts.”    Upon  review  of  Kuffer’s  report  and  excerpts  from  her 
deposition transcript, however, Kuffer does not appear to rely on certain assumptions challenged 
by Defendant in forming her opinion.  For example, Defendant asserts that Kuffer relies on a “core 
assumption” that Plaintiff had sufficient evidence within her pro se application to obtain a 
temporary order of protection.  See Doc. 144 at 14.  This assertion does not appear in Kuffer’s 
report, nor is it supported by the excerpts of her deposition attached to Defendant’s motion.   
Defendant’s remaining challenges—including Kuffer’s statements describing Plaintiff as 
an abuse victim and her “assumption” that Smith was fired—likewise do not justify exclusion of 


1 Defendant cites Milne v. USA Cycling Inc., 575 F.3d 1120, 1134 (10th Cir. 2009), for the general principle that an 
expert is not permitted to speculate.  See Doc. 144 at 12. In Milne, the district court concluded that the plaintiffs’ 
expert, who had experience organizing and supervising paved road bike races, was not qualified to testify regarding 
mountain bike races.  Id.at 1133.  Importantly, the plaintiffs’ expert in Milne had no experience in organizing, 
supervising, or studying mountain bike races.  Id.  Far from being “clearly analogous” to the case at bar, Milne does 
not show why Kuffer should be excluded given her prior experience with cases involving online harassment.   
Kuffer’s testimony.  Rule 702 requires that expert testimony be based on sufficient underlying 
“facts or data.”  “Facts or data” is broad enough to allow an expert to rely on hypothetical facts 
that are supported by the evidence.  While an expert opinion cannot be based on facts that are 
contradicted by undisputed evidence, an expert may rely on her client’s version of any disputed 
facts.  Experts often reach different conclusions based on competing versions of the facts.  See 
Fed. R. Evid. 702 advisory committee’s note to 2023 amendment.  Where that is so, by deciding 
the disputed facts, the jury can decide which side’s experts to credit.  Id.  To the extent Kuffer’s 

assumptions may be contradicted by competing evidence, Defendant is free to address these 
assumptions on cross examination or through opposing expert witnesses.    
c.  Whether Kuffer Offers Legal Conclusions                          

Finally,  Defendant  challenges  Kuffer’s  testimony  as  hypocritical,  inconsistent  with 
Kuffer’s own experience, and containing legal conclusions.  See Doc. 144 at 19–21.  While 
Defendant is correct that experts are generally prohibited from opining on legal issues, the general 
rule becomes more complex in the context of legal malpractice suits.  When an expert witness is 
required to testify to the standard of care, the expert must clearly articulate and reference a standard 
of care by which the defendant’s actions can be measured.  Robinson v. Wash. Metro. Area Transit 
Auth., 774 F.3d 33, 39 (D.C. Cir. 2014).  When the defendant is a lawyer, that standard of care 
necessarily implicates legal issues that would not arise in a typical negligence case.  See Nieves-
Villanueva v. Soto-Rivera, 133 F.3d 92, 100–01 (1st Cir. 1997) (noting “particular areas of law, 
such as legal malpractice, where expert testimony on legal matters is admissible where it would 
normally be excluded”).                                                   
Here, one of the issues before the jury involves the standard of care for a reasonable 
attorney practicing in New Mexico under similar circumstances.  New Mexico generally requires 
expert testimony in professional negligence lawsuits to establish a standard of care as well as the 
professional’s breach of that standard.  See Rodriguez v. Horton, 622 P.2d 261, 264 (N.M. App. 
1980).  New Mexico case law further recognizes that in legal malpractice cases, expert testimony 
is admissible to establish that an attorney breached the standard of care and that the breach resulted 
in damage to the client.  E.g., Rancho del Villacito Condominiums, Inc. v. Weisfeld, 908 P.2d 745, 
749 (1995).   Kuffer is an experienced attorney in New Mexico civil and domestic violence courts.  
She has identified actions she contends Lewis Roca attorney, Bobbie Collins, and any reasonably 

competent attorney should have taken with respect to Plaintiff’s case.  To the extent that Kuffer’s 
opinions are inconsistent with her own practice in temporary restraining order cases, Defendant 
may address those inconsistences via cross examination.                   
III.  Defendant’s Motion for Summary Judgment (Doc. 155)                  

Defendant’s Motion for Summary Judgment (Doc. 155) asserts that Lewis Roca is entitled 
to  judgment as  a matter of law because Plaintiff  cannot meet her burden of proof on her 
professional negligence and breach of fiduciary duty claims without an expert to testify to the duty 
of  care  for  an  attorney  practicing  under  similar  circumstances.    Because  the  Court  denies 
Defendant’s motions to exclude the testimony of Sall and Kuffer, the Court also finds that 
Defendant is not entitled to summary judgment on the grounds that Plaintiff will have no expert 
testimony to support her claim that Lewis Roca breached the standard of care or fiduciary duty 
owed to Plaintiff.                                                        
                      CONCLUSION                                     

IT IS THEREFORE ORDERED that Defendant’s Daubert Motion and Memorandum to 
Exclude Testimony of Robert K. Sall (Doc. 143) is denied; Defendant’s Daubert Motion and 
Memorandum to Exclude Testimony of Dorene A. Kuffer (Doc. 144) is denied; and Defendant’s 
Motion for Summary Judgment Regarding Plaintiff’s Claims That Require a Legal Expert (Doc. 
155) is denied. 

                               SARAH M. DAVENPORT 
                               UNITED STATES DISTRICT JUDGE 

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