Haines v. Get Air Tucson Incorporated et al

Filing 321

ORDER denying 284 Motion to Preclude Testimony of Anthony Gamboa. Signed by Judge Rosemary Marquez on 7/31/2019. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Blake Haines,

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No. CV-15-00002-TUC-RM (EJM)
Plaintiff,

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v.

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ORDER

Get Air LLC,

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Defendant.

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Pending before the Court is Defendant’s Motion to Preclude Testimony of Anthony

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Gamboa. (Doc. 284.)1 The Motion is fully briefed. (Doc. 296.) The Court held a Daubert

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hearing on June 27, 2019. (Doc. 317.)

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I.

Daubert Hearing—Testimony of Robert Taylor

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Three days before the Daubert hearing, Defendant filed a document titled “Daubert

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Hearing Brief” (Doc. 315), which contained a request to present testimony by vocational

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economist Robert Taylor by videoconference at the Daubert hearing. Mr. Taylor has been

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precluded from testifying at trial based on untimely expert disclosure. (Doc. 264.) The

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Court is aware of at least one district court that has found that Federal Rule of Civil

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Procedure 26(a) does not require the timely disclosure of an expert report if a party seeks

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to use the expert only to support a Daubert motion but does not intend to call the expert as

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a witness at trial. See Yakima Valley Mem. Hosp. v. Wa. State Dep’t of Health, No. CV-

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09-3032-EFS, 2012 WL 12951705, at *2 (E.D. Wa. May 18, 2012). However, here,

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Also pending is Plaintiff’s Rule 60 Motion for Relief from Order (Doc. 319), which will
be resolved separately.

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Defendant was not diligent in timely presenting its request to offer Mr. Taylor’s testimony

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by videoconference. Furthermore, allowing Mr. Taylor to testify would cause unfair

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prejudice to Plaintiff, who did not have the opportunity to depose Mr. Taylor during

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discovery. Although such prejudice could be alleviated by reopening discovery to allow

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Plaintiff to depose Mr. Taylor, Defendant has not shown the requisite diligence to justify

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modifying the Court’s Scheduling Order to reopen discovery. See Fed. R. Civ. P. 16(b)(4).

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Furthermore, reopening discovery would cause significant delays in this case, which has

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been pending since 2015 and which has a firm trial date scheduled. Finally, the Court has

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reviewed Mr. Taylor’s report and, based on the contents of that report, the Court does not

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find that Mr. Taylor’s testimony would assist the Court in resolving Defendant’s Daubert

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motion. (Doc. 315-1.) Accordingly, the Court will not re-open the Daubert hearing to hear

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testimony by Mr. Taylor.

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II.

Daubert Motion

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A.

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Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of

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Legal Standard

Evidence, which provides:

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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.

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Fed. R. Evid. 702. This rule requires the trial court to “ensure that any and all scientific

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testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow

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Pharms, Inc., 509 U.S. 579, 589 (1993). To do so, the court must assess “whether the

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reasoning or methodology underlying the testimony” is valid and “whether that reasoning

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or methodology properly can be applied to the facts in issue.” Id. at 592-93. This

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gatekeeping function applies not only to expert testimony based on “scientific” knowledge

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but also expert testimony based on “technical” and “other specialized” knowledge. Kumho

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Tire Co. v. Carmichael, 526 U.S. 137, 141, 147-49 (1999). Its purpose is to ensure “that

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an expert, whether basing testimony upon professional studies or personal experience,

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employs in the courtroom the same level of intellectual rigor that characterizes the practice

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of an expert in the relevant field.” Id. at 152.

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Factors relevant to the reliability of expert testimony include, but are not limited to,

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whether the theory or technique used by the expert “can be (and has been) tested,” whether

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it “has been subjected to peer review and publication,” “the known or potential rate of

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error,” “the existence and maintenance of standards controlling the technique’s operation,”

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and the degree of acceptance in the relevant community of expertise. Daubert, 509 U.S.

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at 593-94; Kumho Tire, 526 U.S. at 149-50. Rule 702’s “helpfulness” standard requires

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that expert testimony be relevant to issues in the case and that there be “a valid scientific

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connection to the pertinent inquiry as a precondition to admissibility.” Daubert, 509 U.S.

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at 591. An expert’s opinions may not be premised on “subjective belief or unsupported

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speculation.” Id. at 590 (internal quotation marks omitted).

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B.

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Anthony M. Gamboa Jr., Ph.D., M.B.A., describes himself as a vocational economic

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analyst. (Transcr. 7/5/19 hearing at 35.) According to Dr. Gamboa, a vocational economic

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analyst assesses lost earning capacity by defining an individual’s pre-injury earning

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capacity, pre-injury work-life expectancy, post-injury earning capacity, and post-injury

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work-life expectancy, and then calculating the present value of the loss in earning capacity.

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(Id.) In contrast, a vocational rehabilitation expert assesses lost earning capacity by

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interviewing the injured individual, assessing the individual’s capabilities, assessing the

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job market, determining what jobs the individual is capable of performing, and determining

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which accommodations would allow the individual to perform those jobs. (Id. at 9.)

Background

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Dr. Gamboa obtained a B.S. degree in education from the University of

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Massachusetts at Boston in 1966, a M.Ed. degree in guidance and counseling from Miami

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University in 1967, and a Ph.D. in guidance and counseling from Ohio State University in

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1971. (Doc. 284-1 at 2-3; see also Transcr. 7/5/19 hearing at 39-40.) In 1981, 1987, 1990,

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and 1993, he completed postdoctoral studies in vocational rehabilitation counseling,

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economic assessment of earnings, and labor economics. (Doc. 284-1 at 2; see also Transcr.

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7/5/19 hearing at 27-29, 40-41.) In 1993, he obtained his M.B.A. from the University of

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Chicago. (Doc. 284-1 at 2; see also Transcr. 7/5/19 hearing at 29, 41).

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In 1977, Dr. Gamboa formed a company specializing in vocational economic

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analysis called Present Vocational Economics, Inc. (See Doc. 284-1 at 3; Transcr. 7/5/19

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hearing at 41.) He has worked as an analyst for that company ever since. (Doc. 284-1 at

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3.) He was also on contract with the U.S. Department of Health and Human Services,

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Social Security Administration, Bureau of Hearings and Appeals from 1977 to 1992. (See

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Doc. 284-1 at 3; Transcr. 7/5/19 hearing at 41.) He has provided expert testimony in the

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area of vocational economic analysis over a thousand times. (Transcr. 7/5/19 hearing at

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41.) His curriculum vitae lists 168 publications and presentations. (Doc. 284-1 at 4-18.)

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Dr. Gamboa uses data from the American Community Survey (“ACS”) to create

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work-life expectancy tables—known as Gamboa-Gibson tables—which he sells to

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approximately 100-150 people per year. (Transcr. 7/5/19 hearing at 3, 28-30.) The ACS

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is the largest annual survey in the United States, with a sample size of around five million

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persons per year. (Doc. 296-1 at 10; Transcr. 7/5/19 hearing at at 2.) It is administered,

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controlled, and published by the U.S. Census Bureau. (Doc. 296-3 at 6.) Millions of people

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use ACS data for a variety of reasons. (Transcr. 7/5/19 hearing at 10.) Dr. Gamboa uses

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ACS data pertaining to earnings and employment; that data has a sample size of 3.5 million

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people. (Id. at 2-3.) Dr. Gamboa testified that he and many others believe that the ACS

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survey provides the best data set for determining lost earning capacity suffered by severely

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disabled individuals, because the survey is the most comprehensive and has the largest

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sample size short of the decennial census. (Id. at 36.) Due to the large sample size, the

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ACS data has high validity and reliability. (Id. at 7, 12.) Dr. Gamboa further testified that

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ACS respondents are categorized as disabled if they affirmatively respond that they have

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problems with lifting, carrying, or walking. (Id. at 6; see also Doc. 296-1 at 11-12.)2 They

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In his report, Dr. Gamboa indicates that, prior to 2008, ACS respondents were asked
if they had a long-lasting condition “that substantially limits one or more basic physical
activities such as walking, climbing stairs, reaching, lifting, or carrying.” (Doc. 296-1 at
11.) After 2008, ACS respondents were asked if they “have serious difficulty walking or
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are categorized as non-severely disabled if they respond affirmatively only to that question;

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they are categorized as severely disabled if they also respond affirmatively that they have

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problems with self care. (Transcr. 7/5/19 hearing at 6; see also Doc. 296-1 at 11-12.)

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Dr. Gamboa authored a lost-earning-capacity report in this case on July 19, 2017.

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(Doc 296-1.) He calculated Plaintiff’s lost earning capacity by using Plaintiff’s age,

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gender, education level, and severity of disability. (Transr. 7/5/19 hearing at 4-5.) He

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started the analysis on Plaintiff’s 28th birthday, which is in March 2021. (Id. at 5.) Prior

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to authoring the report, he spoke to Plaintiff for about 30-45 minutes and learned that

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Plaintiff is intelligent, was almost the valedictorian of his high school, and is currently

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taking college classes. (Id. at 24-25.) Dr. Gamboa’s interview with Plaintiff influenced

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his opinion that Plaintiff will achieve a baccalaureate degree or higher level of education.

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(Id.) Dr. Gamboa concluded that, given the severity of Plaintiff’s disability, Plaintiff’s best

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shot at obtaining employment is to achieve a graduate degree, which is Plaintiff’s goal.

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(Id. at 4.)

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Dr. Gamboa opined that, according to ACS data, a non-disabled male in Plaintiff’s

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age and education group earns approximately $110,000 per year and a severely disabled

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male in the same age and education group earns approximately $90,000 per year—a

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difference of $20,000 per year. (Doc. 296-1 at 4; Transcr. 7/5/19 hearing at 18-19.) In

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addition, Dr. Gamboa opined that Plaintiff’s work-life expectancy was reduced from a

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normal range of 35.1 years to 13.1 years, beginning from age 28. (Doc. 296-1 at 5; Transcr.

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7/5/19 hearing at 19.) To reach his opinion concerning Plaintiff’s work-life expectancy,

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Dr. Gamboa used ACS data as well as life expectancy data from the National Vital

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Statistics Reports, Volume 66, Number 8, United States Life Tables, National Center for

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Health Statistics. (Transcr. 7/5/19 hearing at 21-23.) The life-expectancy data pertains to

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all males, the vast majority of whom have no disability. (Id. at 18.) The ACS data show

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that severely disabled individuals leave the labor market much earlier than their non-

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disabled counterparts.

(Id. at 21-22.)

At age 28, severely disabled males with a

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climbing stairs.” (Id. at 12.)
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baccalaureate degree or greater have an employment level of 42.5%, and the employment

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levels drop off thereafter. (Id. at 7, 21-22; see also Doc. 296-1 at 43-44.)

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In total, Dr. Gamboa opined that the present value of Plaintiff’s lost earning capacity

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is $3,409,973. (Doc. 296-1 at 2, 5.) Although Dr. Gamboa calculated Plaintiff’s lost

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earning capacity, he did not calculate any lost earnings, because Plaintiff had very little

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employment prior to his injury. (Transcr. 7/5/19 hearing at 33.)

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C.

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GALLC seeks to preclude Dr. Gamboa’s testimony pursuant to Federal Rules of

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Evidence 402 and 702, Daubert, and Kumho Tire. (Doc. 284 at 1.) GALLC argues, first,

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that Dr. Gamboa is unqualified to offer expert opinions on Mr. Haines’s lost income or the

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present value of Mr. Haines’s future medical care. (Id. at 2-4.) In support of this argument,

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GALLC takes issue with the characterization of “postdoctoral studies” in Dr. Gamboa’s

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curriculum vitae. (Id.) According to GALLC, Dr. Gamboa inaccurately uses the term

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“postdoctoral studies” to refer to any university class that he enrolled in after receiving an

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unrelated Ph.D. in guidance and counseling. (Id.) GALLC also argues that Dr. Gamboa’s

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opinions concerning lost future earnings are unreliable and insufficiently tailored to Mr.

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Haines’s injuries or life circumstances. (Id. at 4-6.)

Discussion

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Mr. Haines responds that Dr. Gamboa is well-qualified and has extensive experience

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testifying as an expert in district and state courts across the nation. (Doc. 296 at 3.) Mr.

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Haines also argues that Dr. Gamboa considered all of Mr. Haines’s disabilities and

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projected future needs in developing his opinions, and that his methodology will provide

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the jury with a rational standard for evaluating Mr. Haines’s lost earnings and medical-care

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costs. (Id. at 3-4.)

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GALLC’s Motion will be denied. Although GALLC is correct that Dr. Gamboa’s

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B.S., Me.D., and Ph.D. degrees are unrelated to his current work, and that post-doctoral

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study is not equivalent to a post-doctoral appointment, the Court nevertheless finds that Dr.

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Gamboa is qualified through education and experience to present expert testimony on Mr.

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Haines’s projected lost earnings and the present value of Mr. Haines’s future medical care.

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Dr. Gamboa has taken relevant high-level courses and has an M.B.A. from the University

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of Chicago. In addition, he has decades of relevant experience and dozens of relevant

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publications. Dr. Gamboa’s education and experience sufficiently qualify him to calculate

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the present value of future medical care and to opine on lost earning capacity. See, e.g.,

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State Farm Fire & Cas. Co. v. Bell, 30 F. Supp. 3d 1085, 1106 (D. Kan. 2014) (finding Dr.

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Gamboa qualified to provide expert testimony concerning loss of earning capacity and

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present value of future medical treatment).

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After consideration of the parties’ briefs (Docs. 284, 296), counsel’s statements at

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oral argument, Dr. Gamboa’s July 19, 2017 lost-earning-capacity report (Doc. 296-1), his

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affidavit (Doc. 296-3), and his testimony at the Daubert hearing (Doc. 318), the Court also

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finds that Dr. Gamboa’s lost-earnings testimony is sufficiently relevant and reliable for

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purposes of Rule 702, Daubert, and Kumho Tire. First, Dr. Gamboa has specialized

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knowledge that will help the trier of fact to estimate Plaintiff’s lost earning capacity. Fed.

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R. Evid. 702(a). Defendant does not appear to dispute that expert testimony on lost earning

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capacity would be useful to the trier of fact.

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Second, Dr. Gamboa’s “testimony is based on sufficient facts or data.” Fed. R.

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Evid. 702(b). Dr. Gamboa relied upon specific information regarding Plaintiff as well as

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reliable data sources. Although Defendant criticizes the ACS data relied upon by Dr.

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Gamboa, it fails to point to any more reliable data set that Dr. Gamboa should have used.

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Defendant argues that Dr. Gamboa’s use of ACS data lumps Plaintiff in with a wide variety

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of individuals who may affirmatively respond to having problems with self-care. However,

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Defendant concedes that Plaintiff—a quadriplegic—is severely disabled. The fact that the

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ACS data may include individuals less disabled than Plaintiff indicates that Dr. Gamboa’s

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approach could result in an underestimation of Plaintiff’s lost earning capacity, but it does

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not render Dr. Gamboa’s approach unreliable to the point of being inadmissible under Rule

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702. Furthermore, to the extent that Defendant is arguing that Dr. Gamboa’s testimony is

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inadmissible because Dr. Gamboa did not review records to confirm Plaintiff’s educational

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history and current college courses, Defendant has not presented evidence contradicting

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the information that Dr. Gamboa obtained during his interview of Plaintiff.

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Third, the Court finds that Dr. Gamboa’s “testimony is the product of reliable

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principles and methods.” Fed. R. Evid. 702(c). Although Defendant has shown that Dr.

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Gamboa’s methodology differs from that employed by vocational rehabilitation experts in

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social security cases, Defendant has not shown that the methodology employed by such

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vocational rehabilitation experts is the only reliable methodology for calculating lost

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earning capacity. Defendant points to economist Thomas R. Ireland’s Journal of Legal

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Economics article criticizing Dr. Gamboa’s methodology. (Transcr. 7/5/19 hearing at 13-

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15.) Although Dr. Gamboa’s approach is not immune to criticism and may not be

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universally accepted in the relevant community, the Court finds that Plaintiff has

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adequately shown that experts in Dr. Gamboa’s field would reasonably rely on the data and

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methodology used by Dr. Gamboa. (See, e.g., Doc. 296-3 at 7-8, 53-55.)

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Finally, the Court finds that Dr. Gamboa reliably applied his principles and methods

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to the facts of this case. Fed. R. Evid. 702(d). The Court disagrees with Defendant’s

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argument that Dr. Gamboa failed to consider Plaintiff’s unique characteristics, such as his

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driven nature. To the contrary, Dr. Gamboa considered Plaintiff’s drive, intelligence, and

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educational goals in opining that Plaintiff will likely achieve a baccalaureate or higher level

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of education. He also considered other specific characteristics, such as Plaintiff’s age,

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gender, and injury severity, in reaching his lost-earning-capacity opinion. The Court

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rejects Defendant’s contention that Dr. Gamboa’s opinion is irrelevant because it is

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insufficiently tailored to Plaintiff’s circumstances.

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Defendant relies upon Toor v. Homegoods, Inc., a case in which Dr. Gamboa was

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precluded from testifying. Civ. No. 16-1132, 2018 WL 901720 (D.N.J. Feb. 15, 2018). In

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that case, Dr. Gamboa’s opinions—relying upon statistical averages—was found to not be

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a reasonable measure of damages for the plaintiff because evidence in the case showed that

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the plaintiff, following his injury, continued working in his same profession as a software

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engineer and had in fact received a promotion. Id. at *3. In contrast, in the present case,

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Plaintiff has no current employment or prior earnings history which could be used to

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calculate a more accurate lost-earnings figure. The trier of fact in the present case is tasked

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with predicting—without the benefit of prior work and earnings histories—what Plaintiff’s

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future earning potential could have been absent injury and what it will be post-injury.

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Although generalized community data was found to be insufficiently tailored to the facts

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in Toor, here there are few facts beyond generalized data from which the trier of fact can

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accomplish the task of calculating Plaintiff’s lost earning capacity.

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appropriately considered the available facts of this case combined with generalized data.

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See, e.g., Milne v. Volkswagen AG, No. 2:05-cv-323, 2009 WL 10702722, at *6 (D. Vt.

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Jan. 22, 2009) (denying motion to exclude lost-earning-capacity testimony of Dr. Gamboa

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where plaintiff was a full-time student at the time of the accident with little prior

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employment history).

Dr. Gamboa

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Plaintiff’s concerns regarding Dr. Gamboa’s opinions and methodology are

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appropriate for cross-examination, but they do not show that Dr. Gamboa’s testimony is

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inadmissible under Rule 402, Rule 702, Daubert, and Kumho Tire.

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IT IS ORDERED that Defendant’s Motion to Preclude Testimony of Anthony
Gamboa (Doc. 284) is denied.
Dated this 31st day of July, 2019.

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