Ortiz et al v. Home Depot U.S.A Inc

Filing 54

ORDER denying 33 Motion in Limine. Signed by Judge Robert N. Scola, Jr. (rm00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-61512-Civ-SCOLA
MARIA ORTIZ and
CARLOS ORTIZ
Plaintiffs,
vs.
HOME DEPOT USA, INC.
Defendant.
_____________________________________/
Order denying Defendant’s motion in limine
Defendant Home Depot USA, Inc. has filed a motion in limine asking the
Court to strike Plaintiffs’ claim for loss of future wages and to exclude her
vocational-rehabilitation expert, Michael Morgenstern, from testifying under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Home Depot
argues that Plaintiffs have not provided any evidence that would allow a
reasonable juror to calculate Plaintiff Maria Ortiz’s future-wage losses. With
respect to the expert Morgenstern, Home Depot makes a similar argument: that
Morgenstern has insufficient data to calculate Maria’s future-wage losses.
Because there is evidence supporting Maria’s future-wage-loss claim the Court
denies Home Depot’s Motion (DE 33).
A motion in limine is made before a trial has begun for the purpose of
excluding or including certain evidence. 20 Am. Jur. Trials 441 § 2 (1973). In
limine rulings are not binding on a trial court and remain subject to
reconsideration during course of trial. Stewart v. Hooters of America, Inc., 04-40T-17, 2007 WL 1752873, at *1 (M.D. Fla. June 18, 2007). The real purpose of a
motion in limine is to give the trial judge notice of the movant’s position so as to
avoid the introduction of damaging evidence, which may irretrievably affect the
fairness of the trial. Id. Motions in limine are disfavored; admissibility questions
should be ruled upon as they arise at trial. Id. If evidence is not clearly
inadmissible, evidentiary rulings should be deferred until trial to allow questions
of foundation, relevancy, and prejudice to be resolved in context. Id.
Home Depot’s argument about Maria’s future-wage-loss claim must be
evaluated in light of the substantive law on such claims. For a plaintiff to recover
damages for loss of future earning capacity, the plaintiff “must establish only that
the future economic damages are reasonably certain to occur. While proving a

permanent injury can be an important factor in establishing that such damages
are reasonably certain to occur, it is not an absolute prerequisite.” Auto-Owners
Insurance Co. v. Tompkins, 651 So.2d 89, 90 (Fla. 1995). Lost-earning capacity
“compensates a plaintiff for loss of capacity to earn income as opposed to actual
loss of future earnings. A plaintiff must present evidence which will allow a jury
to reasonably calculate lost earning capacity.” Benjamin v. Diel, 831 So.2d 1227,
1229 (Fla. 4th DCA 2002) (brackets, ellipses, and internal quotation marks
omitted).
Home Depot’s argument that there is no evidence that would allow a
reasonable juror to calculate Maria’s future-wage losses is meritless. There is
evidence that before the accident, Maria had been earning income as a wardrobe
stylist. She testified in her deposition that she had been doing freelance work in
this field for several years, and she has provided several years of tax returns
showing that she had been earning income as a “fashion design consultant.” (DE
35-1 at 16-19; DE 38-1.) She also testified in her deposition that she wanted to
work as a wardrobe stylist full time, that she had been laying the necessary
foundation to be able to work in this profession full time—for example, she was
developing connections in the industry and preparing a book of her work—and
that she was close to being able to work in the profession full time until her injury
derailed her career. (DE 35-1 at 15-20, 22-23, 89-90.) Evidence besides her own
testimony supports this conclusion: Mark Parker—who owns and manages MC2
Modeling Agency, Inc. and who may be called to testify—thought that Maria was
an excellent stylist who could have earned in two or three years between $80,000
and $100,00 per year working as a wardrobe stylist had it not been for her injury.
(DE 22-1 at 2; DE 37-1 at 20, 24.) Morgenstern, the vocational-rehabilitation
expert, used www.payscale.com (a website for an entity that does surveys of
salaries on different jobs) to obtain the median income for people working as
wardrobe stylists after 1, 5, 10, 15, and 20 years. (DE 37-1 at 22-24; DE 22-1 at
2-3.) He then used those figures—which, incidentally, were significantly less than
Parker’s salary projections—to calculate what Maria would have made as a
wardrobe stylist during her expected work life. He then subtracted the income
Maria would make in her current job managing a dog kennel over her expected
work life to determine her wage loss over her work life. In sum, there is evidence
that would allow a reasonable juror to calculate Maria’s future-wage loss. This
conclusion becomes even stronger when one considers that trial has not even
happened yet. Maria may be able to present additional evidence in support of her
future-wage-loss claim. She certainly has presented enough evidence at this
stage to avoid having her future-wage-loss claim stricken before she even has the
opportunity to present evidence in support of this claim to the jury.
This brings the Court to Home Depot’s argument that Morgenstern’s
testimony should be excluded under Daubert. This argument is barely developed:

Home Depot has just three sentences of analysis telling the Court why
Morgenstern’s testimony should be excluded. (DE 33 at 3.) Unsurprisingly, it is
not persuasive.
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
That Rule provides 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.
A trial court determining the admissibility of expert testimony under Rule 702
must engage in a 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 v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993); 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.” Rosenfeld v. Oceania
Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (brackets omitted). “Daubert
instructs courts to consider the following factors: (1) whether the expert’s theory
can be and has been tested; (2) whether the theory has been subjected to peer
review and publication; (3) the known or potential rate of error of the particular
scientific technique; and (4) whether the technique is generally accepted in the
scientific community.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256
(11th Cir. 2002).
It is not the role of the trial court to make conclusions about the
persuasiveness of the expert’s opinions, rather, “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.” Rosenfeld, 654 F.3d at 1193. (internal quotation marks omitted). “[I]n
most cases, objections to the inadequacies of a study are more appropriately
considered an objection going to the weight of the evidence rather than its
admissibility.” Id. (internal quotation marks omitted).
Home Depot argues that Morgenstern bases “his findings and final
calculations simply on [Maria’s] assertion that she is engaged in that field [i.e.,
wardrobe styling], and uses internet research and questionable math to come to

arrive at his ultimate opinion.” (DE 33 at 3.) But Home Depot does not explain
why Morgenstern’s math is questionable or how or why internet research is
inappropriate. The math makes sense to the Court, and the internet is a useful
tool. Absent analysis or argument, the Court will not credit an unsupported and
unexplained assertion that the math is questionable and that his internet
research is poor.1
Home Depot’s remaining argument—namely, that
Morgenstern’s calculations are based only on Maria’s assertion that she was
working as a wardrobe stylist—is undercut by other evidence in the record—such
as her tax returns—suggesting that Maria was earning income as a wardrobe
stylist before her injury. Besides, Maria’s testifying that she was working as a
wardrobe stylist by itself would be evidence that a jury could accept. To be sure,
the evidence in the record shows that Maria was working sporadically—not full
time—as a wardrobe stylist before her injury. So it does require a leap to go from
this sporadic work to a projection of future earnings based on her working full
time as a wardrobe stylist. But this leap is not without evidentiary support: Maria
has testified that she intended to and was capable of transitioning to full-time
wardrobe-stylist work. So although the leap may be a weak point in Maria’s case
that detracts from the weight of Morgenstern’s conclusion, it does not render his
testimony inadmissible. The Court therefore denies Home Depot’s Motion (DE
33) to exclude Morgenstern’s testimony.
The Court reiterates that this pretrial ruling merely allows Maria to put
evidence before the factfinder concerning her claim for future loss of earning
capacity.
Done and ordered in chambers, at Miami, Florida, on October 25, 2013.

________________________________
ROBERT N. SCOLA, JR.
UNITED STATES DISTRICT JUDGE

During Morgenstern’s deposition, Home Depot’s counsel says that he thinks
that the data from www.payscale.com is valid:
Q And then you’re basing the report on, you know, obviously other
data that you obtained, which –
A People –
Q Yeah, which I think is valid, payscale, but then your juxtaposing
that with her working at a dog kennel . . . .
(DE 37-1 at 46.)
1