Britt Green Trucking Inc., et al v. FEDEX National LTL, INC.

Filing 183

ORDER: Defendant FedEx National, LTL, Inc.'s Motion in Limine to Exclude the Testimony and Expert Report of Marcie D. Bour 94 is DENIED. Plaintiffs Britt Green Trucking, Inc. and Donna Isham, Administratrix of the Estate of Lanny D. Whitson� 39;s Motion Under Daubert to Exclude the Expert Opinions of FedEx's Expert Lloyd J. Morgenstern, or in the alternative, Plaintiffs' Motion in Limine to Strike Certain Portions of Lloyd J. Morgenstern's Expert Report 154 is DENIED as moot. Defendant FedEx National, LTL, Inc.'s Daubert Motion to Exclude the Testimony and Expert Report of Dr. Albert Lee 157 is DENIED without prejudice. Signed by Judge Virginia M. Hernandez Covington on 6/24/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRITT GREEN TRUCKING, INC.
and Donna Isham, Administratrix
of the Estate of Lanny D.
Whitson,
Plaintiffs,
v.

Case No. 8:09-cv-445-T-33TBM

FEDEX NATIONAL, LTL, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court for consideration of
Defendant FedEx National, LTL, Inc.’s Motion in Limine to
Exclude the Testimony and Expert Report of Marcie D. Bour
(Doc. # 94), filed on November 28, 2011 (Although filed on
November 28, 2011, this Court notes that in light of this
Court’s Order granting FedEx’s Motion for Summary Judgment
(Doc. # 85), and the subsequent appeals (Doc. ## 100, 164),
the

Motion

Plaintiffs

is

only

Britt

now

Green

ripe

for

Trucking,

this
Inc.

Court’s
and

review);

Donna

Isham,

Administratrix of the Estate of Lanny D. Whitson’s1 Motion

1

On November 18, 2013, Plaintiffs filed a suggestion of
death as to Lanny D. Whitson. (Doc. # 159). Upon the filing
of an unopposed motion for substitution of party (Doc. # 160),

Under Daubert to Exclude the Expert Opinions of FedEx’s Expert
Lloyd J. Morgenstern, or in the alternative, Plaintiffs’
Motion in Limine to Strike Certain Portions of Lloyd J.
Morgenstern’s Expert Report (Doc. # 154), filed on November
14, 2013; and FedEx’s Daubert Motion to Exclude the Testimony
and Expert Report of Dr. Albert Lee (Doc. # 157), filed on
November 15, 2013.

These Motions are ripe for the Court’s

review. Upon due consideration and for the reasons set forth
below, (1) FedEx’s Motion in Limine to Exclude the Testimony
and Expert Report of Marcie D. Bour is denied; Plaintiff’s
Motion Under Daubert to Exclude the Expert Opinions of FedEx’s
Expert

Lloyd

J.

Morgenstern,

or

in

the

alternative,

Plaintiffs’ Motion in Limine to Strike Certain Portions of
Lloyd J. Morgenstern’s Expert Report is denied as moot; and
FedEx’s Daubert Motion to Exclude the Testimony and Expert
Report of Dr. Albert Lee is denied without prejudice.
I.

Factual Background
In August of 2006, FedEx took control of Watkins Motor

Lines,

an

interstate

motor

carrier

based

in

Lakeland,

Florida, which employed individuals and trucking companies as
independent contractors (“ICs”). (Doc. # 48 at ¶¶ 9-10). On

this Court substituted Donna Isham, Administratrix of the
Estate of Lanny D. Whiston for Lanny D. Whitson (Doc. # 161).
2

the date of the Watkins acquisition, FedEx entered into
Equipment Lease and Operating Contracts (“ELOCs”) with ICs,
including Plaintiffs, in various locations throughout the
United States. (Id. at ¶¶ 11-12).
The ELOCs utilized by FedEx described both the manner
in which FedEx would lease transportation equipment from ICs
and the manner in which ICs would provide transportation
services. (See Doc. # 48, Ex. A). The ELOCs provided as
follows:
[FedEx] desires to lease, on an as-needed basis,
transportation equipment it does not own from [IC]
and desires that [IC] provide transportation
services, as needed, for the transportation of
certain commodities provided by [FedEx] or its
customers; and [IC] desires to contract with
[FedEx] to transport such commodities.
(Id. at 1).

The ELOCs further stated:

[FedEx] agrees to make commodities available to
[IC] for shipment, from time to time, although this
shall not be construed as an agreement by [FedEx]
to furnish any specific number or types of loads or
units, pounds, gallons, or any other measurements
of weight or volume, quantity, kind or amount of
freight, for transport by [IC] at any particular
time or place.
(Id. at ¶ 2).
The ELOCs provided several methods for termination of
the ELOC:
3

Either Party may terminate this Operating Contract
(1) at any time, without cause, by giving written
notice [to] the other Party at least thirty (30)
days prior to the effective termination date or (2)
immediately and at any time, by giving written
notice to the other Party in the event of a material
breach of any provision of this Operating Contract
by such other Party.
(Id. at 15(a)).
In

February

of

2007,

FedEx

allegedly

“unilaterally

terminated” the contracts of the Plaintiffs by simultaneously
withdrawing all work from Plaintiffs. (Doc. # 48 at ¶ 17).
According to Plaintiffs, this occurred without any written
notice to the Plaintiffs and the other ICs, let alone the
thirty days’ written notice required under each of their
ELOCs. (See id.).
II.

Procedural History
This action arises from FedEx’s alleged termination of

Plaintiffs’ ELOCs without the required written notice of
termination. On November 19, 2008, Plaintiffs filed their
class action complaint against FedEx (Doc. # 1), and filed an
amended class action complaint on March 15, 2010, setting
forth the following counts: (1) Breach of Contract; (2) Breach
of the Duty of Good Faith and Fair Dealing; and (3) Violation

4

of the Florida Deceptive and Unfair Trade Practices Act, Fla.
Stat. § 501.201. (Doc. # 48)
Plaintiffs filed a motion for class certification on
March 12, 2010. (Doc. # 46). On March 29, 2011, this Court
denied Plaintiffs’ motion for class certification, finding
that Plaintiffs failed to meet the typicality requirement of
Federal Rule of Civil Procedure 23(a)(3) and the predominance
requirement of 23(b)(3). (Doc. # 60). Thereafter, the Court
granted FedEx’s motion for summary judgment, and judgment was
entered in favor of FedEx. (Doc. ## 98, 99).
On February 28, 2013, the Eleventh Circuit reversed this
Court’s Orders granting summary judgment in favor of FedEx
and denying class certification, and remanded the case for
further review. (Doc. # 116 at 9-10). Specifically, in regards
to the motion for class certification, the Eleventh Circuit
stated, “Because the district court based its denial of class
certification on the parties’ oral communications without
analyzing

whether

those

oral

communications

were

indeed

material to the issue of breach of contract under Florida
law, [the Eleventh Circuit] conclude[s] that the district
court abused its discretion.” (Id.).

5

Thereafter, Plaintiffs filed a second motion for class
certification (Doc. # 134) on July 15, 2013, requesting
certification of the following class:
All persons and entities throughout the United
States operating as independent contractors (ICs)
with Equipment Lease and Operating Contracts
(ELOCs) who contracted to carry freight for FedEx
National LTL, Inc. (FedEx) and whose ELOCs were
terminated by FedEx without 30 days' written
notice.
(Id. at 2). This Court again denied Plaintiffs’ motion on
November 15, 2013. (Doc. # 155). Subsequently, on December 3,
2013, Plaintiffs filed a motion for a stay pending the outcome
of Plaintiffs’ Fed. R. Civ. P. 23(f) appeal to the United
States of Appeals for the Eleventh Circuit (Doc. # 164), which
this Court granted on December 23, 2013 (Doc. # 169).
On April 1, 2014, the Eleventh Circuit issued an Order
denying Plaintiffs’ petition for leave to appeal pursuant to
Fed. R. Civ. P. 23(f). (Doc. # 170). In light of the Eleventh
Circuit’s

Order,

the

Court

determines

that

it

has

jurisdiction to rule on the pending Motions in Limine (Doc.
## 94, 154, 157), which are ripe for this Court’s review. The
Court has reviewed the Motions, the responses thereto, and
the timely filed replies, and is otherwise fully advised in
the premises.
6

III. Legal Standard
The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998); see also United States v. Jernigan, 341 F.3d 1273,
1285 (11th Cir. 2003)(“Inherent in this standard is the firm
recognition that there are difficult evidentiary rulings that
turn on matters uniquely within the purview of the district
court, which has first-hand access to documentary evidence
and is physically proximate to testifying witnesses and the
jury.”).
An abuse of discretion can occur where the district court
applies the wrong law, follows the wrong procedure, bases its
decision on clearly erroneous facts, or commits a clear error
in judgment.

Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315

(11th Cir. 2005)(citations omitted).

Further, the Eleventh

Circuit has pronounced: “We will only reverse a district
court’s ruling concerning the admissibility of evidence where
the appellant can show that the judge abused his [or her]
broad

discretion

and

that

the

7

decision

affected

the

substantial rights of the complaining party.” Wood v. Morbark
Indus., Inc., 70 F.3d 1201, 1206 (11th Cir. 1995).
The admissibility of expert testimony is governed by
Federal Rule of Evidence 702, which states that:
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.
Fed. R. Evid. 702.
Rule 702 is a codification of the landmark case of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).

In

Daubert,

the

Supreme

Court

described

the

gatekeeping function of the district court to ensure expert
testimony and evidence “is not only relevant, but reliable.”
Id. at 589.

As stated in the Advisory Committee Notes

accompanying Rule 702 of the Federal Rules of Evidence, “A
review of the case law after Daubert shows that the rejection
of expert testimony is the exception rather than the rule.”

8

See Advisory Committee Notes to the 2000 Amendment to Rule
702. In addition, the trial judge is afforded broad discretion
in deciding Daubert issues. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999).
IV.

Analysis
A. Testimony and Expert Report of Marcie D. Bour
FedEx seeks exclusion of the testimony and expert report

of Plaintiffs’ economic expert Marcie D. Bour because “(i)
the majority of Ms. Bour’s testimony is irrelevant to any
possible damages determination, (ii) Ms. Bour’s testimony is
not based on sufficient facts and data to extrapolate an
accurate damages calculation; (iii) Ms. Bour’s testimony does
not account for market trends; (iv) Ms. Bour’s calculations
do not take into account Plaintiffs’ obligation to mitigate;
and as a result, (v) Ms. Bour’s conclusions are entirely
speculative, unfounded, and irrelevant.” (See Doc. # 94).
Plaintiffs contest FedEx’s criticisms of Ms. Bour’s lost
profit report and testimony and argue that any failure on
behalf of Ms. Bour to take into account certain expenses,
costs, or market trends, as alleged by FedEx, goes to the
weight of Ms. Bour’s testimony and not its admissibility.
(Doc. # 97 at 13).

9

As

pointed

out

by

Plaintiffs,

FedEx

does

not

cite

directly to the Daubert factors in its Motion. (Id. at 1,
n.1). Nonetheless, upon review of the arguments submitted by
FedEx and its cited legal authority, the Court considers
FedEx’s Motion to raise arguments under Daubert and will
address the Motion under the Daubert standard.
1. Competence and Qualification
Ms.

Bour

is

an

accountant

who

provides

forensic

accounting and litigation consulting services. (Doc. # 94 at
2).

As

noted

credentials,

in

Plaintiffs’

experience,

and

response,

expertise”

“Ms.

have

not

Bour’s
been

questioned by FedEx. (Doc. # 97 at 3, n.2). To date, FedEx
has not raised any doubt as to this contention. Therefore,
this Court finds that Ms. Bour is competent and qualified to
provide her expert report and testimony, and the Court will
not address this requirement further.
2. Methodology
FedEx contends that Ms. Bour’s report and testimony
should be excluded “because the methodology used is unsound
and because the conclusions are not relevant to the issue
before the trier of fact.” (Doc. # 94 at 3). First, FedEx
seeks to strike the portions of Ms. Bour’s expert report that
purport to calculate lost profits beyond the thirty day notice
10

period as FedEx suggests that such damages are not available
under the law. (Id. at 5). According to FedEx, “the law, of
both Florida and several other states, clearly reflects that
even

if

without

Plaintiffs
sufficient

were

employees

notice,

then

that

any

were

terminated

potential

award

of

damages would be limited to the lost profits during that
notice

period.”

(Id.

at

7)(citing

Mousa

v.

Lauda

Air

Luftfahrt, A.G., 285 F. Supp. 2d 1329, 1346 (S.D. Fla.
2003)(finding

in

a

breach

of

contract

action

based

on

termination without notice, that it was a legal certainty
that plaintiff could not satisfy the monetary minimum for
diversity

jurisdiction

because

any

possible

breach

of

contract damages must be limited to the notice time period)).
Therefore, in this case, assuming Plaintiffs’ allegations to
be true, any potential damages would be limited to Plaintiffs’
lost profits during the thirty days following the alleged
termination,

which

is

contrary

to

the

lost

profits

calculations provided by Ms. Bour.
Next, FedEx argues that Ms. Bour’s expert report should
be stricken because it is not based on sufficient facts and
data to extrapolate an accurate calculation of purported
damages. (Doc. # 94 at 8). Specifically, in formulating her
opinions, Ms. Bour considered the settlement sheets, the
11

ELOCs,

the

First

Amended

Complaint,

and

the

Answer

and

Affirmative Defenses, and of these documents, “the settlement
sheets

are

the

only

source

of

numbers”

for

Ms.

Bour’s

calculations. (Id.). However, according to FedEx, “[t]he
settlement sheets do not reflect other expenses” potentially
incurred by Plaintiffs in the operation of their trucks, “such
as

insurance,

driver

salaries,

maintenance,

and

payroll

taxes,” and do not consider dates Plaintiffs would have been
unable to perform under the ELOCs (i.e. trucks experiencing
maintenance issues). (Id. at 8-10). Thus, FedEx posits that
Ms. Bour’s calculations cannot truly reflect any potential
lost profits because her analysis does not take into account
the majority of the expenses that Plaintiffs would have
incurred

in

performing

the

ELOCs.

(Id.

at

8-9)(citing

Lipscher v. LRP Publ’ns, Inc., 266 F.3d 1305, 1317 (11th Cir.
2001)(“‘If the party presents evidence only of gross receipts
or fails to prove expenses with some specificity’ an award of
damages cannot stand.”).
Furthermore, FedEx explains that exclusion of Ms. Bour’s
testimony is warranted as it does not account for market
trends; specifically, downward trends in the months leading
up to the alleged terminations. (Doc. # 94 at 10). Ms. Bour’s
damage

calculations

are

based
12

on

the

average

daily

performance during the 2006 calendar year. (Id. at 11).
According to FedEx, “an estimation based on the entire year
fails to provide an accurate estimation of any alleged lost
profits

incurred

during

the

thirty

day

notice

period,

beginning at the end of February 2007 and continuing into
March of 2007, because the business at issue was experiencing
a downward trend in demand.” (Id.). Therefore, to adequately
reflect the downward trend, FedEx suggests that Ms. Bour
“should

have

based

her

calculations

for

potential

lost

profits during the thirty day notice period on the profits
Plaintiffs made during the thirty days leading up to the
alleged

termination,”

not

based

on

the

average

daily

performance during the 2006 calendar year. (Id.).
Finally, FedEx posits that this Court should strike Ms.
Bour’s

expert

report

and

testimony

because

her

opinions

regarding the potential lost profits do not account for
Plaintiffs’ duty to mitigate, nor the actual mitigation that
occurred by one of the Plaintiffs – Mr. Green. (Id.).
Plaintiffs contend, however, that Ms. Bour’s methodology
satisfies the requirements of Fed. R. Evid. 702 and Daubert.
Ms. Bour used the “Before and After” method, and “analyzed
the Plaintiffs’ settlement sheets from 2006 and extrapolated
future lost profits based on the extensive hauling work done
13

by Plaintiffs in the preceding year.” (Doc. # 97 at 8).
Plaintiffs submit that the “Before and After” method is an
acceptable method in Florida, and “once an expert utilizes an
acceptable method of calculation, any criticisms of this
method are properly dealt with on cross-examination and are
not grounds for excluding the expert’s testimony.” (Id.).
In addition, Plaintiffs contend that Ms. Bour properly
considered

damages

beyond

the

thirty

day

notice

period

because absent written termination, the Plaintiffs’ ELOCs
continued “in full force and effect” until the end of the
stated term and then automatically renewed pursuant to the
automatic renewal clause. (Id. at 9). As it is Plaintiffs’
position that FedEx did not provide the proper written notice
of termination to terminate the ELOCs, Plaintiffs contend
that the ELOCs automatically renewed and thus it was proper
for Ms. Bour to consider damages beyond the thirty day notice
period. (Id.); contra Boca Raton Cmty. Hosp., Inc. v. Tenet
Health

Care

Corp.,

582

F.3d

1227,

1232

(11th

Cir.

2009)(finding the expert’s methodology unreliable as it did
not match the plaintiff’s theory of liability).
Furthermore, Plaintiffs state that the reason Ms. Bour’s
lost profit calculations do not account for mitigation is
because it is FedEx’s burden to prove mitigation as an
14

affirmative

defense,

and

FedEx

has

failed

to

offer

any

specific evidence of mitigation for Ms. Bour to consider in
her reports. (Doc. # 97 at 10-11). Plaintiffs note, however,
that Ms. Bour has reserved her right to supplement her reports
in the event FedEx offers specific evidence of mitigation.
(Id. at 11, n.4).
Finally, Plaintiffs submit that Ms. Bour’s lost profit
calculations

properly

account

for

all

expenses, and market trends. (Id. at 12).
Bour

reviewed

Plaintiffs’

settlement

relevant

costs,

Specifically, Ms.

sheets;

Plaintiffs’

depositions, which allowed her to account for driver salaries
and payroll taxes; and analyzed Plaintiffs’ 2006 earnings
record, allowing her to account for any ups and downs of the
market over a full calendar year. Accordingly, Plaintiffs
argue that Ms. Bour “properly deducted costs and expenses
from gross profits in arriving at her damages calculations.”
(Id.).
The Daubert Court listed four non-inclusive factors
courts should consider in determining reliability under Rule
702: (1) whether the theory or technique can be tested; (2)
whether it has been subjected to peer review; (3) whether the
technique has a high known or potential rate of error; and
(4) whether the theory has attained general acceptance within
15

the scientific community. Daubert 509 U.S. at 593–94. This
list of factors, however, “do[es] not exhaust the universe of
considerations that may bear on . . . reliability.” Quiet
Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341
(11th Cir. 2003); see also Kumho, 526 U.S. at 150 (“Daubert
makes clear that the factors it mentions do not constitute a
‘definitive checklist or test.’”)(citation omitted).
The law grants a district court “substantial discretion
in deciding how to test an expert’s reliability and whether
the expert’s relevant testimony is reliable.” United States
v. Majors, 196 F.3d 1206, 1215 (11th Cir. 1999).
focus

is

not

“whether

the

proposed

The Court’s

testimony

is

scientifically correct . . . but only whether or not the
expert's

testimony,

based

on

scientific

principles

and

methodology, is reliable.” Allison v. McGhan Medical Corp.,
184 F.3d 1300, 1312 (11th Cir. 1999).
However,

a

“district

court's

gatekeeper

role

under

Daubert ‘is not intended to supplant the adversary system or
the role of the jury.’” Maiz v. Virani, 253 F.3d 641, 666
(11th

Cir.

“[V]igorous

2001)(quoting

Allison,

cross-examination,

184

F.3d

presentation

at
of

1311).
contrary

evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but
16

admissible evidence.” Allison, 184 F.3d at 1311 (quoting
Daubert, 509 U.S. at 596).
Upon review of the arguments provided by both parties,
the Court concludes that Ms. Bour’s methodology satisfies the
reliability

test.

FedEx’s

arguments

rest

not

with

the

methodology Ms. Bour utilized – “Before and After” method –
but rather with the dates she used in reaching her conclusion.
(i.e. thirty days prior to notice period in question versus
entire 2006 calendar year). However, under Florida law, the
method Ms. Bour used is reliable. See G.M. Brod & Co., Inc.
v.

U.S.

Home

Corp.,

759

F.2d

1526,

1538

(11th

Cir.

1985)(finding that the Before and After theory is a generally
recognized method of proving lost profits); Marshall Auto
Painting & Collision, Inc. v. Westco Eng'g, Inc., No. 6:02CV109-ORL22KRS, 2003 WL 25668018, at *7 (M.D. Fla. May 8,
2003)(same).
To the extent FedEx argues that Plaintiffs should be
unable to recover lost profit damages outside the thirty day
notice period, the Court finds that this issue would be more
appropriately addressed on summary judgment, as opposed to
the present Motion. In the event the Court finds this issue
to be a factual determination for the jury, then FedEx’s
objections directed to the reliability of Ms. Bour’s report
17

and testimony go to the weight of her testimony, rather than
its admissibility. See Maiz v. Virani, 253 F.3d 641, 669 (11th
Cir. 2001)(noting that objections to methodology go to weight
and sufficiency, not admissibility). For the reasons stated
above,

this

opinions

Court

satisfy

concludes
the

that

Ms.

reliability

Bour’s

proffered

requirement

for

admissibility.
3. Assist the Trier of Fact
Under Rule 702, a properly qualified expert may testify
in a given field if their testimony “will assist the trier of
fact to understand the evidence or to determine a fact in
issue.”
when

it

An expert’s testimony will assist the trier of fact
offers

something

“beyond

the

understanding

and

experience of the average citizen.” United States v. Paul,
175 F.3d 906, 911 (11th Cir. 1999)(quoting United States v.
Rouco, 765 F.2d 983, 995 (11th Cir. 1985)). Ms. Bour’s lost
profit

analysis

is

an

appropriate

subject

for

expert

testimony, and the Court concludes that Ms. Bour’s testimony
will assist the trier of fact in determining Plaintiffs’
damages, if any. Therefore, for the reasons stated above,
FedEx’s Motion is denied.
B. Expert Opinion of Lloyd J. Morgenstern

18

FedEx’s expert – Lloyd J. Morgenstern C.P.A., “authored
a report on August 28, 2013, in which he ‘evaluated’ the ELOCs
at issue in this case.” (Doc. # 154 at 2). According to
Plaintiffs, Mr. Morgenstern’s opinion “is essentially that
the ELOC’s are illusory contracts that guarantee no work to
the class and thus the class by definition cannot have
damages.” (Id. at 3). However, Plaintiffs point out that Mr.
Morgenstern is a certified public accountant and “[t]here is
no indication from his listed qualifications that he has any
legal training or experience interpreting the legal meaning
of provisions in a contract.” (Id.). Accordingly, Plaintiffs
suggest that “Mr. Morgenstern’s opinion about whether FedEx
breached

the

ELOCs

is

a

matter

about

which

he

has

no

expertise” (Id. at 7), and as a result, “such opinion would
invade the province of the Court and/or jury in determining
a legal question” (Id. at 3). However, Plaintiffs acknowledge
that “[w]hile Mr. Morgenstern may . . . testify about his
opinions about the damages in this case, he cannot make
conclusions

about

the

ultimate

issue

of

whether

FedEx

breached the ELOCs by failing to send [thirty] days written
notice before terminating Plaintiffs.” (Id. at 6).
Plaintiffs correctly point out that Mr. Morgenstern is
not an attorney and should not be permitted to testify
19

regarding legal conclusions. However, FedEx responds that
“Mr. Morgenstern is not attesting to a legal duty or the legal
implications of conduct” (Doc. # 168 at 7), “but rather, an
opinion that Dr. Lee’s mileage estimate is unsupported by the
ELOCs

or

any

Plaintiffs’

other

concerns

evidence”
regarding

(Id.
the

at

6).

Accordingly,

propriety

of

Mr.

Morgenstern’s offering legal opinions are moot. Nonetheless,
in the instance that Mr. Morgenstern attempts to provide the
jury with testimony that exceeds the bounds of his expertise,
Plaintiffs are free to raise an appropriate objection during
trial.
C. Testimony and Expert Report of Dr. Albert Lee
Dr. Albert Lee – an expert for Plaintiffs - issued an
expert report on August 1, 2013, and was deposed on October
24, 2013. (Doc. # 157 at 4). Dr. Lee’s report calculated the
“economic

impact”

to

Plaintiffs

and

the

purported

class

arising from FedEx’s alleged material breach using a “simple
and straightforward methodology that took into consideration
the

varying

documented

operations

histories

for

individual truck.” (Doc. # 165 at 3).
To create his report,
Dr. Lee reviewed and analyzed the settlement sheets
for two hundred and twenty-eight putative class
20

each

members, which contained information on the miles
driven, the applicable rates and the charges
against any gross tip earnings. Based on the
settlement sheet data, Dr. Lee designed an
econometric model to calculate the number of miles
that the class would have driven but for FedEx’s
termination.
Next, Dr. Lee converted the total
miles driven into class-wide dollar figures based
on a historical ratio of net earnings to miles
driven specific to each contractor.
(Id.).
FedEx seeks to exclude the testimony and expert report
of Dr. Lee as it alleges “(i) the majority of Dr. Lee’s
testimony is not reliable; and (ii) Dr. Lee’s testimony does
not assist the trier of fact with the issues in dispute,
specifically the calculation of the alleged damages.” (Doc.
# 157 at 1). According to FedEx, Dr. Lee’s economic model is
only an estimation of “economic impact” on the purported class
of

contractors

without

consideration

of

their

costs

and

expenses. (Id.).
In their response, however, Plaintiffs indicate that “It
is an open question whether Dr. Lee’s class wide opinions
will even be useful in this case since the Court has denied
Plaintiffs’ second motion for class certification. However,
Plaintiffs have petitioned the Eleventh Circuit for review
under Rule 23(f).” (Doc. # 165 at 9, n.3)(internal citation

21

omitted). The Court notes that on April 1, 2014, the Eleventh
Circuit

denied

Plaintiffs’

Court’s

denial

of

petition

Plaintiffs’

for

second

review

motion

of

for

this
class

certification stating, “Taking into consideration the five
factors which serve as guideposts to the exercise of our
discretion in considering whether to accept a Federal Rule of
Civil Procedure 23(f) appeal, the petition is DENIED.” (Doc.
# 170).
In light of the Eleventh Circuit’s recent Order, this
Court is not convinced that Dr. Lee’s testimony would be
helpful at this time, as it relates to an econometric model
based

on

juncture,

a

class-wide

this

Court

calculation.

will

not

Therefore,

utilize

scarce

at

this

judicial

resources in determining whether Dr. Lee’s methodologies
satisfy the requirements of Fed. R. Evid. 702 and Daubert.
Instead, as Dr. Lee’s testimony could be relevant, this Court
denies

the

Motion

without

prejudice.

If

helpful

to

Plaintiffs’ position, given the present posture of the case,
Plaintiffs may provide the testimony at trial. However, Dr.
Lee’s testimony will be subject to the Court’s determination
that

it

is

based

on

reliable

methodologies,

not

unduly

prejudicial to FedEx or prone to jury confusion as class
certification has been denied.
22

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant FedEx National, LTL, Inc.’s Motion in Limine
to Exclude the Testimony and Expert Report of Marcie D.
Bour (Doc. # 94) is DENIED.

(2)

Plaintiffs Britt Green Trucking, Inc. and Donna Isham,
Administratrix

of

the

Estate

of

Lanny

D.

Whitson’s

Motion Under Daubert to Exclude the Expert Opinions of
FedEx’s

Expert

Lloyd

J.

Morgenstern,

or

in

the

alternative, Plaintiffs’ Motion in Limine to Strike
Certain Portions of Lloyd J. Morgenstern’s Expert Report
(Doc. # 154) is DENIED as moot.
(3)

Defendant FedEx National, LTL, Inc.’s Daubert Motion to
Exclude the Testimony and Expert Report of Dr. Albert
Lee (Doc. # 157) is DENIED without prejudice.

DONE and ORDERED in Chambers in Tampa, Florida this 24th
day of June, 2014.

Copies: All Counsel of Record

23