United States District Court, M.D. Louisiana
PATRICK NKANSAH, ET AL.
EDGAR A. MARTINEZ, ET AL.
RICHARD L. BOURGEOIS, JR. MAGISTRATE JUDGE
RULING AND ORDER ON DEFENDANTS' MOTION IN LIMINE
TO EXCLUDE EXPERT REPORT AND TESTIMONY OF G. RANDOLPH
W. deGRAVELLES JUDGE UNITED STATES DISTRICT COURT
the Court is the Motion in Limine to Exclude Expert Report
and Testimony of G. Randolph Rice filed by defendant
Depositors Insurance Company (“Defendant” or
“Depositors”). (Doc. 53.) The motion is opposed
by plaintiff Patrick Nkansah (“Plaintiff” or
“Nkansah”). (Doc. 64.) Depositors filed a reply
memorandum. (Doc. 71.) For the reasons which follow, the
motion is granted in part and denied in part.
suit arises out of a motor vehicle accident between two
tractor-trailer vehicles, one being driven by Plaintiff and
the other driven by defendant Edgar A Martinez
(“Martinez”). Plaintiffs allege Martinez was at
fault in the accident. (Docs. 1-3, 9 and 11.) Also sued is
Depositors as the insurer for Martinez. Liability for the
accident is disputed. (Docs. 4, 10 and 11.) The case was
removed to this Court based on diversity of citizenship
jurisdiction. (Doc. 1.)
Plaintiff's First Supplemental and Amending Complaint for
Damages, Nkansah alleges he suffered damages in the form of
physical and mental anguish, pain and suffering, as well as
loss of income caused by his alleged inability to pursue his
former occupation. (Doc. 9 ¶ 7.) In support of this
claim for economic losses, Nkansah offers the expert report
and testimony of economist G. Randolph Rice, PhD. It is the
report and testimony of Dr. Rice which is the subject of the
SUMMARY OF ARGUMENT OF THE PARTIES
does not question the credentials or qualifications of Dr.
Rice. However, “Depositors contends that Dr. Rice's
report and testimony should be excluded because Dr.
Rice's methodology is inherently flawed in relying upon
pure speculative assumptions rather than actual data or
facts.” (Doc. 53-1 at 3.) Specifically, Depositors
complains that Dr. Rice's assumption of a work-life
expectancy of 26.07 years is “derived exclusively from
an assumption that Mr. Nkansah's attorney asked Dr. Rice
to make” (Doc. 53-1 at 4), and is otherwise
unsupported. Second, Depositors takes issue with Dr.
Rice's failure to consider Nkansah's income tax
returns and failure to take into account the need to deduct
Nkansah's expenses in order to reach an accurate earnings
amount. (Doc. 53-1 at 5-6.) Third, Dr. Rice's opinion is
based upon “pure speculation that Mr. Nkansah cannot
work as a ‘long-haul' trucker and cannot become an
‘owner-operator.' ” (Doc. 53-1 at 6-8.)
Depositors' reply memorandum (Doc. 71) largely restates
the arguments made in its original memorandum.
opposition, Nkansah argues that his injuries are so severe
that he is facing surgery to repair his back. (Doc. 64 at 1.)
He maintains that experts are entitled to rely on assumptions
and that those relied upon by Rice are the kind economists
are entitled to rely on. He points to case law he contends
supports this proposition. (Doc. 64 at 2-3.) Such
assumptions, if challenged, may affect the weight and
credibility to be given to the testimony but, argues Nkansah,
not their admissibility. (Id.) Any weakness in those
assumptions can be tested by Defendants on cross-examination.
to Rule 702, “a witness who is qualified as an expert
by knowledge, skill, experience, or education may testify in
the form of an opinion or otherwise” if its
preconditions are met. Fed.R.Evid. 702. Rule 702, however,
does not render all expert testimony admissible. United
States v Scavo, 593 F.2d 837, 844 (8th Cir. 1979).
Rather, beyond being subject to the Rule's helpfulness
requirement, expert testimony can still be excluded per Rule
403. Fed.R.Evid. 403; United States v Green, 548
F.2d 1261, 1270 (6th Cir. 1977). Entirely discretionary, Rule
403 allows a court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed.R.Evid.
a Daubert challenge based on the expert's
alleged failure to use an accepted methodology and his
opinion's alleged lack of an adequate factual foundation.
(Doc. 107-1 at 2.) Daubert v. Merrell Dow
Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). When Daubert is invoked, a
district court may, but is not required, to hold a hearing at
which the proffered opinion may be challenged. Carlson v.
Bioremedi Therapeutic Sys., Inc., No. 14-20691, 2016 WL
2865256, at *7, 2016 U.S. App. LEXIS 8951, at *11 (5th Cir.,
May 16, 2016). However, when no hearing is held, “a
district court must still perform its gatekeeping function by
performing some type of Daubert inquiry.”
Id. “At a minimum, a district court must
create a record of its Daubert inquiry and
‘articulate its basis for admitting expert
testimony.' ” Id. (quoting Rodriquez
v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir.
role of the trial court is to serve as the gatekeeper for
expert testimony by making the determination of whether the
expert opinion is reliable. As the Fifth Circuit has held:
[W]hen expert testimony is offered, the trial judge must
perform a screening function to ensure that the expert's
opinion is reliable and relevant to the facts at issue in the
case. . . . Daubert went on to make “general
observations” intended to guide a district court's
evaluation of scientific evidence. The nonexclusive list
includes “whether [a theory or technique] can be (and
has been) tested, ” whether it “has been
subjected to peer review and publication, ” the
“known or potential rate of error, ” and the
“existence and ...