Bostick v. State Farm Mutual Automobile Insurance Company

Filing 70

ORDER: Defendant State Farm Mutual Automobile Insurance Company's Motion to Strike Certain Expert Opinions and Testimony of Robert W. Johnson and James A. Mills (Doc. # 51 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 6/20/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTICK,
Plaintiff,
v.

Case No. 8:16-cv-1400-T-33AAS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________/
ORDER
This cause is before the Court pursuant to Defendant
State Farm Mutual Automobile Insurance Company’s Motion to
Strike Certain Expert Opinions and Testimony of Robert W.
Johnson and James A. Mills (Doc. # 51), filed May 4, 2017.
Plaintiff Lisa N. Bostick filed a Response in Opposition to
Defendant’s Daubert Motion on June 5, 2017. (Doc. # 62). State
Farm filed a Reply Memorandum on June 19, 2017. (Doc. # 69).
For the reasons that follow, the Court denies the Motion.
I.

Background
Bostick filed the Complaint in state court against State

Farm

seeking

payment

of

underinsured

motorist

benefits

related to a car accident that occurred on November 14, 2013.

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(Doc. # 2). The case was removed by State Farm on June 2,
2016, based on complete diversity of citizenship. (Doc. # 1).
On June 29, 2016, the Court entered its Case Management
and Scheduling Order setting December 19, 2016, as Bostick’s
deadline to disclose expert reports. (Doc. # 13). Later,
Bostick filed an Unopposed Motion for Extension of Time to
Complete

Discovery,

which

was

granted,

and

her

expert

disclosure deadline was extended to February 14, 2017. (Doc.
## 34–35).
Bostick has retained economic experts, Robert W. Johnson
and James A. Mills, of Robert W. Johnson & Associates, to
offer expert testimony at trial. (Doc. # 51). On February 13,
2017, Bostick disclosed Johnson and Mills’ “Economic Impact
Report” to State Farm. (Doc. # 51-1). Both experts utilized
the

same

prepared

methodology
the

report.

in

their

(Id.).

calculations
The

report

and

jointly

contains

the

economists’ opinions about two types of damages: (1) the value
of Bostick’s future medical expenses and life care needs; and
(2) the expected value of Bostick’s future lost income. (Id.).
At this juncture, State Farm seeks an Order striking
Johnson and Mills’ opinions concerning Bostick’s future lost
earnings or loss of earning capacity on the grounds that
“those opinions are not based on sufficient facts or data.”

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(Doc.

#

51

at

6).

State

Farm

explains

in

its

reply,

“Defendant’s motion to strike (Doc. 51) only seeks this Court
to enter an order striking Johnson and Mills’ opinions related
to the expected value of Plaintiff’s future lost income.”
(Doc. # 69 at 1).
II.

Discussion
Federal Rules of Evidence Rule 702, which governs the

admissibility of expert testimony, 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.
When

a

party

raises

an

objection

to

an

expert’s

testimony, the Court must perform its gatekeeping duties to
determine whether the expert testimony “is not only relevant,
but reliable.” Daubert v. Merrell Dow Pharm., 509 U.S. 579,
589 (1993). When deciding Daubert issues, the trial judge has
broad discretion in how the review is conducted. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999). Usually, “the
rejection of expert testimony is the exception rather than

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the rule.” See Advisory Committee Notes to the 2000 Amendment
to Rule 702.
The Eleventh Circuit has adopted a three-part analysis
for determining whether expert testimony is admissible under
Daubert and Rule 702:
To fulfill their obligation under Daubert, district
courts must engage in a rigorous inquiry to
determine 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.
Rink v. Cheminova, Inc., 400 F.3d 1286, 1291–92 (11th Cir.
2005) (internal citations omitted). The party offering the
expert has the burden of satisfying each of these elements by
a preponderance of the evidence. Id. at 1292; see also Allison
v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
A.

Johnson is Qualified

Johnson is an economist with more than forty-four years
of professional experience as a securities analyst, portfolio
manager, and forensic economist. (Doc. # 62-1 at ¶ 2). He
received an MBA from Stanford University Graduate School of
Business and has continued his education in economics with

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post-graduate

training.

(Id.).

Since

1981,

Johnson

has

provided forensic economic analyses and expert testimony in
over 200 trials and depositions. (Id.). Johnson is also the
President of Robert W. Johnson & Associates which has provided
economic analyses for civil litigants since 1988. (Id.).
Based

on

these

credentials,

State

Farm

does

not

challenge the qualifications of Johnson as an expert in the
field

of

economics.

Therefore,

the

Court

concludes

that

Johnson is qualified to testify competently regarding the
Economic Impact Report and the first prong of the Daubert
analysis is satisfied.1
B.

Johnson and Mills’ Methodology

Johnson and Mills have calculated the expected value of
Bostick’s future lost income by looking at W-2 tax forms,
merit increase forms, and pay stubs from the University of
Tampa. (Doc. # 62-1 at ¶ 6). Their methodology is a standard
one, generally used by forensic economists in litigation
matters. (Id. at 5). Yet, State Farm seeks to exclude the

1

The Court has not been provided with Mills’ CV.
However, in the Motion to Strike (Doc. # 51) and Reply (Doc.
# 69), State Farm does not raise issue with Mills’
qualifications as an expert.
The parties will have the
opportunity at trial to present Mills’ credentials and, at
that time, the Court will be prepared to make further findings
regarding his qualifications.

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expert testimony of Johnson and Mills “because their opinions
are speculative, contrary to the principals set forth in
Daubert, . . . and are unduly prejudicial to [Bostick].” (Doc.
# 51 at 3). State Farm argues that Johnson and Mills’ opinions
are not “based upon sufficient facts or data,” and they relied
upon erroneous assumptions in their calculations. (Id. at 2–
3).
State Farm’s main contention is that Johnson and Mills
should have used different foundational information in their
calculations, such as statements from Bostick’s deposition,
instead of the relied-upon facts. (Id.). The Court is not
convinced. State Farm’s disagreement with the input Johnson
and Mills relied upon in their calculations is not enough to
warrant striking their testimony. In Taylor, Bean & Whitaker
Mortg. Corp. v. GMAC Mortg. Corp., No. 5:05-cv-260-Oc-GRJ,
2008 WL 3819752, at *5 (M.D. Fla. Aug. 12, 2008), the court
noted:
[T]hese arguments go more to the weight of the
evidence, than the admissibility of the evidence
under Daubert. The Court need not determine that
the expert [defendant] seeks to offer into evidence
is irrefutable or certainly correct. The certainty
and correctness of [the expert’s] opinion will be
tested through cross-examination and presentation
of contrary evidence and not by a Daubert
challenge. Indeed the Court’s role as gatekeeper
is not intended to supplant the adversary system or
the role of the jury.

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Id.
The reasoning adopted in Taylor, Bean & Whitaker is
applicable here.

Although Johnson and Mills did not include

certain variables – such as disability coverage - in their
analysis, State Farm has not shown that Johnson and Mills’
testimony is unsound. (Doc. # 62 at 2). State Farm should
resolve their challenges to the experts’ methodology through
the

adversary

system.

“Vigorous

cross-examination,

presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Allison, 184
F.3d at 1311-12 (quoting Daubert, 509 U.S. at 596).
The Court concludes that Johnson and Mills’ methodology
is sufficiently reliable and satisfies the second factor of
the Daubert analysis.
C.

Johnson and Mills Will Assist the Trier of Fact

Expert testimony is helpful to the trier of fact “if it
concerns matters that are beyond the understanding of the
average lay person.” United States v. Frazier, 387 F.3d 1244,
1262 (11th Cir. 2004). In other words, “[p]roffered expert
testimony generally will not help the trier of fact when it

7 

offers nothing more than what lawyers for the parties can
argue in closing arguments.” Id. at 1262–63.
As previously stated, Johnson has more than forty-four
years of professional experience in the field of economics.
(Doc. # 62-1 at ¶ 2). He has received an MBA and continues to
receive post-graduate training. (Id.). It is unlikely that
the average lay person possesses the education and training
necessary to understand the analysis and methodologies used
to calculate Bostick’s future lost earning capacity. Thus,
the Court finds that Johnson and Mills’ testimony will assist
the trier of fact and denies the Motion to Strike.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant
Company’s

State

Motion

to

Farm
Strike

Mutual
Certain

Automobile
Expert

Insurance

Opinions

and

Testimony of Robert W. Johnson and James A. Mills (Doc. # 51)
is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
20th day of June, 2017.

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