Brewster et al v. Southern Home Rentals, LLC et al

Filing 109

MEMORANDUM OPINION AND ORDER that the 51 Motion to Exclude Testimony of Kathy Willard is GRANTED to the extent that Plaintiffs are not to refer to Willard's opinions without first taking up their admissibility outside of the presence of the jury as further set out in the order. Signed by Honorable Judge W. Harold Albritton, III on 12/4/2012. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

HOWARD SCOTT BREWSTER and
MELANIE BREWSTER,
Plaintiffs,
v.
SOUTHERN HOME RENTALS, LLC,
Defendant.

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Civil Action No. 3:11cv872-WHA
(wo)

MEMORANDUM OPINION AND ORDER

This cause is before the court on a Motion to Exclude Testimony of Kathy Willard (Doc.
#51).
Southern Home Rentals, LLC (“Southern Home”) seeks to exclude the testimony of
Kathy Willard (“Willard”) pursuant to Fed. R. Evid. 702.
The admissibility of expert testimony is governed by Fed. R. of Evid. 702 which
provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to 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.
Rule 702, as interpreted by the Supreme Court, “assign[s] to the trial judge the task of
ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task
at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587 (1993). This “gatekeeping”

function is important “to ensure that speculative, unreliable expert testimony does not reach the
jury under the mantle of reliability that accompanies the appellation expert testimony.” Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing McCorvey v. Baxter Healthcare
Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)). “Indeed, no other kind of witness is free to opine
about a complicated matter without any firsthand knowledge of the facts in the case....” United
States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). As a gatekeeper the court must do “a
preliminary assessment of whether the reasoning or methodology properly can be applied to the
facts in issue.”Daubert, 509 U.S. at 593-94.
In determining the admissibility of expert testimony under Rule 702, the trial court must
conduct “a rigorous three part inquiry,” considering whether: (1) the expert is qualified to testify
competently regarding the matters he intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry
mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in
issue. Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d
548, 562 (11th Cir.1998).
With regard to Willard, Southern Home argues that her opinions are not reliable because
the medical expense portion of Willard’s report is not based on sound data, but is instead based
on conjecture and speculation, and is not relevant. Southern Home relies, at least in part, on
Howard Brewster’s prognosis from his physician, Dr. Lyle. The Brewsters respond that
Willard’s opinion is based on, and not in conflict with, Dr. Lyle’s medical evidence. They also
point out that Willard sent her rehabilitation assessment to Dr. Lyle and he stated that he found it

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to be very accurate and did not see anything that needed to be changed.
In her deposition, Willard agreed with the question that she did not have an idea as to the
sort of dollar value she would put on the potential loss of Brewster’s ability to maintain his
current employment long term. (Doc. 51, Ex. 2, p.21:6-10). She stated in her deposition that his
future medical treatment may require him to be retrained and it will be harder for him to be
retrained in his forties or fifties than it is to be retrained at his current age. (Id. at p.21: 13-17).
The court agrees with Southern Home that it is somewhat difficult to discern what
opinion Willard plans to offer in this case. It appears that her opinion is that if Mr. Brewster
undergoes the future medical treatment which Dr. Lyle has indicated he will require, and if he
were to change to another shop which would not accommodate him as his current employer
does, and if he is in his 50's when he needs an additional knee replacement, retraining would not
be probable at that time, and “an early withdrawal from world of work would be anticipated.”
Brewster has claimed loss of earning capacity in this case. Under Alabama law, there is a
rebuttable presumption that a plaintiff who is earning after an accident what he earned before the
accident has not suffered a loss of earning capacity. Abex Corp. v. Coleman, 386 So.2d 1160,
1162 (Ala. Civ. App. 1980). A plaintiff can rebut the presumption, however. Id. In Abex, the
court upheld a finding that the presumption had been rebutted, relying on evidence that the
plaintiff’s geographic area of employment was limited, that his present job was the only one he
could find, that he worked for a small firm where he had a personal relationship with the
foreman, and that his medical history could be a deterrent to future employment. Id. at 1163.
Willard has some expertise, as reflected in the record, but that expertise does not extend
to offering a medical opinion. Her opinion as to Brewster’s reduced earning capacity based on

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the limitations on his ability to find employment other than his current position may assist the
trier of fact in evaluating Brewster’s earning capacity. The court will, therefore, reserve ruling
on whether Willard will be allowed to testify, in light of the medical testimony presented at trial,
but the Plaintiffs are not to refer to Willard’s opinions without first taking up their admissibility
outside of the presence of the jury.
For the foregoing reasons, it is hereby ORDERED that the Motion to Exclude Testimony
of Kathy Willard (Doc. #51) is GRANTED to the extent that Plaintiffs are not to refer to
Willard’s opinions without first taking up their admissibility outside of the presence of the jury.
DONE this 4th day of December, 2012.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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