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 LAURA
W. deGRAVELLES JUDGE
the Court is the motion by defendant Depositors Insurance
Company (“Depositors”) to exclude the expert
report and testimony of Laura Schexnayder. (Doc. 52.) The
motion is opposed by plaintiff Patrick Nkansah
“Plaintiff””). (Doc. 66.) A reply
memorandum has been filed in support of the motion. (Doc.
72.) 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.)
Plaintiffs' 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
drive [a] truck.” (Doc. 9 ¶ 7.) In support of this
claim for economic losses, Plaintiffs offer the expert report
and testimony of bookkeeper and tax preparer Laura
Schexnayder, the manager of a tax services company. It is the
report, affidavit and deposition testimony of Ms. Schexnayder
that is the subject of the present motion.
SUMMARY OF ARGUMENT OF THE PARTIES
argues that the Court should exclude the testimony and report
of Ms. Schexnayder because (1) the report is deficient and
does not comply with the requirements of Federal Rule of
Civil Procedure 26(a)(2)(B) (Doc. 52-1 at 4, 12-13); (2) she
is not qualified to be an expert, (id. at 4, 13-14);
and (3) she did not employ proper scientific or technical
methodology, (id. at 4, 14-16).
responds that Schexnayder's training and practical and
professional experience qualify her to render the proffered
opinions, that her opinions as expressed in her report,
affidavit and discovery deposition are sufficient to meet the
requirements of Rule 26, and her opinions are supported by a
sufficient methodology. (Doc. 66-1.) He offers her affidavit
with more detailed information about Schexnayder's
qualifications and opinions. (Doc. 66-2.)
replies that her qualifications “have nothing to do
with her opinions in this case” (Doc. 72 at 1-2) and
her testimony does not require scientific, technical or other
specialized knowledge that will help the jury understand the
evidence or determine a fact in issue. (Id. at 2.)
Further, Depositors challenges Schexnayder's affidavit as
the product of the leading questions of Plaintiffs'
counsel which is contradicted by her deposition testimony.
(Id. at 3-5.)
details of the parties' arguments will be addressed in
the Court's ruling.
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 her
opinion's alleged lack of an adequate factual foundation.
(Doc. 52-1 at 4.) 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., 822 F.3d 194, 201 (5th Cir.
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 maintenance of standards controlling the
technique's operation, ” as well as “general
acceptance.” . . . The Court summarized:
The inquiry envisioned by Rule 702 is, we emphasize, a
flexible one. Its overarching subject is the scientific
validity and thus the evidentiary relevance and
reliability-of the principles that underlie a proposed
submission. The focus, of course, must be solely on
principles and methodology, not on the conclusions that they
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th
Cir. 1997) (internal citations omitted).
cases following Daubert have expanded the factors
and explained the listing is neither all-encompassing nor is
every factor required in every case. See, e.g.,
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997);
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th