Yerk v. People for the Ethical Treatment of Animals
Filing
191
ORDER granting 133 Motion to Strike Plaintiff's Expert Report and Preclude Testimony of Dr. Pettingill. Signed by Judge John E. Steele on 12/1/2011. (GEL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT E. TARDIF, JR., as Trustee
for Jason Yerk,
Plaintiff,
vs.
Case No.
2:09-cv-537-FtM-29SPC
PEOPLE for the ETHICAL TREATMENT of
ANIMALS, a Virginia not-for-profit
corporation,
Defendant.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Strike Plaintiff’s Expert Report and Preclude Testimony of Dr.
Pettingill (Doc. #133) filed on June 16, 2011.
Response (Doc. #144) on June 30, 2011.
Plaintiff filed a
Defendant seeks to exclude
plaintiff’s expert, Dr. Bernard Pettingill, from testifying at
trial and from submitting his report as evidence of plaintiff’s
employment-related damages.
I.
Defendant first argues that the expert report should be
stricken because the disclosure of it was untimely and failed to
comply with the Federal Rules of Civil Procedure and this Court’s
Case Management and Scheduling Order.
Rule 26(a)(2) provides:
(A) In General. In addition to the disclosures required
by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial
to present evidence under Federal Rule of Evidence 702,
703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this
disclosure
must
be
accompanied
by
a
written
report--prepared and signed by the witness--if the
witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the
party's employee regularly involve giving expert
testimony. The report must contain: (i) a complete
statement of all opinions the witness will express and
the basis and reasons for them; (ii) the facts or data
considered by the witness in forming them; (iii) any
exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years; (v)
a list of all other cases in which, during the previous
4 years, the witness testified as an expert at trial or
by deposition; and (vi) a statement of the compensation
to be paid for the study and testimony in the case.
“If a party fails to provide information or identify a witness
as required by Rule 26(a)[], the party is not allowed to use that
information or witness to supply evidence... at a trial, unless the
failure was substantially justified or is harmless.”
P. 37(c)(1).
Fed. R. Civ.
The following factors guide the Court in determining
whether to exclude evidence pursuant to Rule 37(c)(1): “(1) the
prejudice or surprise to the party against whom the evidence is
offered; (2) the ability of the party to cure the prejudice; (3)
the likelihood of disruption to the trial; and (4) the bad faith or
willfulness involved in not disclosing the evidence at an earlier
date.”
Vitola v. Paramount Automated Food Servs., Inc., No. 08-
61849, 2009 WL 5067658 (S.D. Fla. Dec. 17, 2009)(citing David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)).
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Here,
the
Court’s
Case
Management
and
Scheduling
Order
required plaintiff to disclose his expert report on April 14, 2007.
(Doc. #73.)
Plaintiff petitioned the Court for extra time and was
permitted to submit his report on or before May 18, 2011.
(Doc.
#120.) On May 17th, plaintiff submitted Dr. Pettingill’s report to
defendant but the report failed to include the specific data upon
which his opinion was based, failed to include Dr. Pettingill’s
qualifications,
publications
Pettingill
testified,
had
and
other
failed
compensation and was not signed.
to
cases
include
in
a
which
Dr.
statement
of
On June 27th, plaintiff provided
defendant with an amended report.
(Doc. #144-2.)
The Court finds that in the instant case, plaintiff’s failure
to submit a complete report on or before May 18, 2011 was harmless.
Defendant cannot claim surprise or prejudice, as this case has been
extensively litigated and plaintiff has consistently asserted his
claim for lost wages and benefits.
June 30,
2011,
plaintiff
has
available
for
deposition
at
Additionally, as of at least
offered
the
to
make
defendant’s
Dr.
Pettingill
convenience.
Disruption of the trial is unlikely because defendant would still
have over one month to depose plaintiff’s expert. Lastly, there is
no evidence of bad faith or willfulness on plaintiff’s part.
Accordingly, the motion to strike Dr. Pettingill’s report on the
basis of untimeliness will be denied.
-3-
II.
Next, defendant argues Dr. Pettingill’s report should be
excluded because it is not probative of any fact in issue and
provides for damages not allowable under Florida law.
The report
is entitled “The Present Value Analysis of the Loss of Back Pay and
Front Pay of Jason Yerk” and discusses “the present value of the
funds needed to finance the loss of back pay and front pay
resulting from [Yerk’s] constructive termination.”
p. 4.)
(Doc. #144-2,
Defendant argues that “front pay” and “back pay” damages
are not allowable in this case because PETA was not Yerk’s employer
and, thus it could not have “constructively terminated” him. Front
pay, back pay and constructive termination are terms of art used in
the employment
context,
typically
involving
discrimination
or
retaliation claims. The fact that this is not a typical employment
case does not mean that Yerk’s lost wages cannot be an item of
damage.
Tort recovery involves all damages which are the natural,
direct and proximate cause of the tortious conduct and recovery for
breach of contract involves damages which were or should have been
within the reasonable contemplation of the parties at the time the
contract was made.
4th DCA 1994).
Tillman v. Howell, 634 So. 2d 268, 270 (Fla.
Thus, depending on what the jury finds, lost wages
may be an allowable element of damages in this case.
Testimony
consistent with the report will not be excluded on this basis.
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III.
Finally, defendant argues that Dr. Pettingill’s report and
testimony should be excluded pursuant to Federal Rule of Evidence
702.
The legal principles governing the admissibility of expert
testimony are well settled.
Rule 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably
to the facts of the case.
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and Daubert v.
Merrell Dow Pharms., 509 U.S. 579 (1993) the Supreme Court held
that the trial court had a “gatekeeper” function designed to ensure
that any and all expert testimony is both relevant and reliable.
The importance of this gatekeeping function “cannot be overstated.”
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)(en
banc), cert. denied, 544 U.S. 1063 (2005).
In determining the admissibility of expert testimony under
Rule 702, the Court applies a “rigorous” three-part inquiry.
Frazier, 387 F.3d at 1260.
Expert testimony is admissible if “(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)
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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.”
Rosenfeld v. Oceania
Cruises,Inc.,
Cir.
omitted).
654
F.3d
1190,
1193
(11th
2011)(citation
“The burden of laying the proper foundation for the
admission of expert testimony is on the party offering the expert,
and the admissibility must be shown by a preponderance of the
evidence.”
Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1261
(11th Cir. 2004); see also McCorvey v. Baxter Healthcare Corp., 298
F.3d
1253,
1256
(11th
Cir.
2002).
The
admission
of
expert
testimony is a matter within the discretion of the district court,
which is accorded considerable leeway in making its determination.
Cook v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1103 (11th Cir.
2005); Frazier, 387 F.3d at 1258.
The
first
requirement
for
the
admissibility
of
expert
testimony is that the expert is qualified to testify competently
regarding the matters he or she intends to address.
Hansen, 262
F.3d at 1234; City of Tuscaloosa v. Harcros Chems., 158 F.3d 548,
563 (11th Cir. 1998).
expert
based
education.
upon
Rule 702 permits a person to qualify as an
knowledge,
skill,
experience,
training,
or
Frazier, 387 F.3d at 1260-61.
The second requirement, discrete and independent from the
witness’s qualifications, is reliability.
1261.
Frazier, 387 F.3d at
While the criteria used to evaluate the reliability of non-
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scientific, experience-based testimony may vary from case to case,
the district court must evaluate the reliability of the testimony
before allowing its admission at trial.
Id. at 1261-62.
It is
not, however, the role of the district court to make ultimate
conclusions as to the persuasiveness of the proffered evidence.
Rosenfeld, 654 F.3d at 1193.
The third requirement for admissibility is that the expert
testimony must assist the trier of fact.
is
admissible
if
it
concerns
Thus, “expert testimony
matters
that
understanding of the average lay person. . . .
are
beyond
the
Proffered expert
testimony generally will not help the trier of fact when it offers
nothing more than what lawyers for the parties can argue in closing
arguments.”
A.
Id. at 1262-63.
Qualifications
According to the Curriculum Vitae, Dr. Pettingill earned his
Ph.D. in economics in 1977 and acted as a professor of economics
until 1996.
(Doc. #144-2, pp. 17-22.)
he has acted as a forensic economist.
four
years,
Dr.
Pettingill
has
From 1996 to the present,
(Id.)
authored
In the past thirtyvarious
publications
focused on medical and professional practice financial analysis.
Although
he
does
not
appear
to
have
published
any
articles
specifically related to the estimation of lost wages and benefits,
the Court finds that he has sufficient knowledge and experience in
financial analysis to qualify him to do so in this case.
-7-
B.
Reliability
By reviewing Yerk’s tax returns and wage statements, Dr.
Pettingill calculated Yerk’s prior pay package with the Lee County
Sheriff’s Office as $50,009.00 (plus benefits).
Although Yerk is
in the process of completing his four-year degree in criminal
justice, Dr. Pettingill opines that he is unlikely to work in the
criminal justice field again because of the “residual impact”
resulting
from
this
lawsuit.
Therefore,
in
making
his
calculations, Dr. Pettingill utilized a future starting wage of
$27,000 per year, which according to him, is the approximate wage
Yerk would be able to earn as a two-year Associate Degree graduate
in the open labor market.
(Id., p.5, ¶1.4.)
The Court finds Dr. Pettingill’s calculations regarding Yerk’s
lost wages to be unreliable because he does not provide “good
grounds” to support his conclusions.
Daubert, 509 U.S. at 590.
An
expert’s “knowledge” within the meaning of the Federal Rules of
Evidence
connotes
speculation.
more
than
subjective
belief
or
unsupported
Id.
First, the two-year Associate Degree wage of $27,000 per year
is
unverifiable
based
Pettingill’s report.
upon
the
information
provided
in
Dr.
According to plaintiff, the $27,000 number
was obtained from the U.S. Department of Labor, Bureau of Labor
Statistics, Monthly Labor Review, January Editions (Doc. #144-2,
p.7,
¶4.1)
and
the
citation
-8-
is
stated
as
“ibid,
www.census.gov/hhes/www/cpstables/03210/perinc/new04_000.htm1).
(Id., p.5, ¶1.4.)
The Court has reviewed both sources and is
unable to locate the $27,000 figure.
Second, there is nothing in the report which supports Dr.
Pettingill’s conclusion that Yerk is unlikely to work in the
criminal justice field in the future because of the “residual
impact” of this lawsuit and that his four-year degree in criminal
justice will be “practically worthless”.2
The report includes no
information regarding the relevant employment market, and merely
stating that Yerk has unsuccessfully applied to various police
departments in the local area is insufficient. The Court finds Dr.
Pettingill’s
application
Associate
Degree
testimony
regarding
of
graduate
the
the
average
questionable
portion
of
wage
on
Dr.
of
its
a
two-year
face.
Pettingill’s
Thus,
report
addressing lost wages will be disallowed.
Although defendant does not challenge the reliability of the
remaining
potions
of
Dr.
Pettingill’s
report
(the
retirement
benefit of $876,397.00, insurance $136,206.00, use of vehicle
$158,761.00, and incentive pay $40,306.00), the Court finds that
these figures are
unsupported.
Dr. Pettingill does not provide
1
The content of this website is no longer available and
plaintiff has not provided this data as an exhibit.
2
For example, some branches of the federal government will
accept applications from individuals who have a four-year degree in
any
field,
including
criminal
justice.
http://www.opm.gov/qualifications/standards/IORs/gs1100/1102QAs.htm
-9-
any basis for his calculations and merely states various numbers in
a conclusory fashion.
For example, Dr. Pettingill cites to the
Florida Retirement System Special Risk Guidebook, and states that
Yerk would have been entitled to 90% of his highest five years of
earned income projected to his life expectancy and increased at
3.0% in the future.
Yerk’s total retirement benefit, according to
Dr. Pettingill, would have been $876,397.00, but he does not
explain specifically how he reached this number.
The remaining
benefits (insurance, vehicle use and incentive pay) suffer from the
same deficiency.
these
numbers
calculations.
Dr. Pettingill neither specifies the source of
nor
the
methodology
he
used
in
making
his
He also fails to explain the significance of the
tables attached to his report.
C.
Helpfulness
While expert testimony regarding lost wages and benefits would
be helpful in assisting the jury determine damages in this case,
the Court finds that this particular report and the testimony Dr.
Pettingill proposes to provide at trial will not be helpful.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Strike Plaintiff’s Expert Report and
Preclude Testimony of Dr. Pettingill (Doc. #133) is GRANTED.
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DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.
Copies: Counsel of record
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1st
day of
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