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Nkansah v. Martinez

United States District Court, M.D. Louisiana

June 28, 2017

PATRICK NKANSAH, ET AL.
v.
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 RICE

          JOHN W. deGRAVELLES JUDGE UNITED STATES DISTRICT COURT

         Before 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.

         I. BACKGROUND

         This 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.)

         In 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 present motion.

         II. SUMMARY OF ARGUMENT OF THE PARTIES

         Depositors 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.

         In his 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. (Id.)

         III. LEGAL STANDARD

         Pursuant 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. 403.

         This is 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. 2001)).

         The 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 ...

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