WHITE v. HALL et al
Filing
69
ORDER denying 61 Motion exclude Opinion Testimony of Sarah Lustig and Certain Opinion Testimony of Oliver Wood. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 11/6/2020. (chc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAMON A. WHITE,
Plaintiff,
CIVIL ACTION NO.
5:18‐cv‐00072‐TES
v.
ISAAC HALL, et al.,
Defendants.
ORDER
Before the Court is Defendants Isaac Hall (“Hall”) and Oakley Trucking’s
(“Oakley”) Motion to Exclude the Opinion Testimony of Sarah Lustig and Certain
Opinion Testimony of Oliver Wood [Doc. 61].
BACKGROUND
Plaintiff Damon White (“White”) drives a truck for Wal‐Mart. [White Depo., Doc.
61‐2, p. 44:8–10]. In February 2017, White was not driving his Wal‐Mart truck, but was
instead driving his 2016 Chevrolet Corvette on Interstate 75 South. [Doc. 1‐1, ¶¶ 6–7].
Hall was driving a tractor trailer when debris from Hall’s truck struck the
undercarriage of White’s car causing an accident. [Doc. 1‐1, ¶¶ 6–7]. White suffered a
shoulder injury that required arthroscopic surgery in December 2017. [Doc. 61‐1, p. 1];
[Doc. 66, p. 1]. In March 2018, following the surgery, White returned to work at Wal‐
Mart. [Id. at p. 2]. White then initiated this personal injury action against Hall and
Oakley. [Doc. 45].
White seeks to admit the testimony of Sarah Lustig, B.S.N., R.N., C.L.C.P.,
(“Lustig”) as evidence of the future care needs and associated costs of White’s shoulder
injury. [Lustig Depo., Doc. 61‐4, p. 31:6–10]; [Doc. 61‐1, p. 2]. Lustig created a “life care
plan” [Doc. 61‐5] for White that itemizes various costs by category for both a “good”
outcome, referred to as “Scenario 1,”or a “bad” outcome, referred to as “Scenario 2.” To
illustrate, the life care plan lists “Physical Therapy Evaluation Outpatient” as one
category of future medical cost, and lists and totals each specific cost White will incur in
this category. [Id. at p. 1]. Under Scenario 1, White would face this cost once or twice
post‐op. [Id.]. Under Scenario 2, White would incur this cost once a year for the rest of
his life. [Id.]. There are nine such categories of costs listed in Lustig’s life care plan.
White also seeks to admit the testimony of Dr. Oliver G. Wood, Jr., to calculate
the present value of the amount of White’s loss using inputs from Lustig’s life care plan,
calculations of future earnings capacity, family services, and 401(k) benefits. [Wood
Depo., Doc. 61‐6, p. 21:11–17, p. 44:8–12].
Defendants Hall and Oakley argue that the testimony of Lustig and Wood
should be excluded from trial because it is imprecise, unspecific, and misleading. [Doc.
61‐1, pp. 2, 7]. White counters that Lustig is qualified, and her opinions are reliable and
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helpful to the jury. [Doc. 66, pp. 6–16]. White also argues that there is no basis under
Daubert to exclude Wood’s testimony. [Id. at 16–18].
DISCUSSION
A.
Daubert Standard
Rule 702 of the Federal Rules of Evidence provides:
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 expertʹs 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.
Rulings on the admissibility of expert testimony—like all evidentiary rulings—
necessarily involve the exercise of the Courtʹs discretion. See Burchfield v. CSX Transp.,
Inc., 636 F.3d 1330, 1333 (11th Cir. 2011). Trial courts are to act as “gatekeepers” to
ensure that speculative and unreliable opinions do not reach the jury. Daubert v. Merrell
Dow Pharms, Inc., 509 U.S. 579, 589, n.7 (1993). “This gatekeeping role, however, is not
intended to supplant the adversary system or the role of the jury: 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.” United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013). 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
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conclusions is sufficiently reliable . . . ; and (3) the testimony assists the trier of fact . . . to
understand the evidence or to determine a fact in issue.” United States v. Frazier, 387
F.3d 1244, 1260 (11th Cir. 2004) (quoting City of Tuscaloosa v. Harcros Chems. Inc., 158
F.3d 548, 562 (11th Cir. 1998)). The “‘burden of establishing qualification, reliability and
helpfulness’” lies with the party offering the expert opinion. McClain v. Metabolite lntʹl.
Inc., 401 F.3d 1233, 1238 (11th Cir.2005) (quoting Frazier, 387 F.3d at 1260).
In assessing whether an expert’s methodology is reliable, the Court generally
should consider the following factors: “(1) whether the expertʹs theory can be and has
been tested; (2) whether the theory has been subjected to peer review and publication;
(3) the known or potential error rate of the technique; and (4) whether the technique is
generally accepted in the scientific community.” Adams v. Lab. Corp. of Am., 760 F.3d
1322, 1327 (11th Cir.2014) (per curiam). These factors, of course, represent a non‐
exhaustive list and “‘do not constitute a definitive checklist or test.’” Id. (quoting Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)). “While those factors may help in
assessing the reliability of scientific or experience‐based expert testimony, the district
courtʹs ‘gatekeeping inquiry must be tied to the facts of a particular case.’” Id. (quoting
Kumho Tire, 526 U.S. at 150).
In its gatekeeping role, the Courtʹs focus must be on the reliability of the
testimony, not simply whether it fits within the narrow confines of lawyer‐urged litmus
tests. While “‘each stage of the expertʹs testimony [must] be reliable, . . . each stage must
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[also] be evaluated practically and flexibly without bright‐line exclusionary (or
inclusionary) rules.’” Frazier, 387 F.3d at 1262 (quoting Heller v. Shaw Indus., Inc., 167
F.3d 146, 155 (3d Cir.1999)). The Courtʹs goal is to ensure that an expert “‘employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.’” Id. at 1260 (quoting Kumho Tire, 526 U.S. at 152). “Sometimes the
specific [traditional] Daubert factors will aid in determining reliability; sometimes other
questions may be more useful.” Id. at 1262. Testimony that the parties plan to present to
a jury must be “‘properly grounded, well‐reasoned, and not speculative.’” Id. (quoting
Fed. R. Evid. 702 advisory comm. note (2000 amends)).
Finally, the Court must assess whether the expert testimony helps the trier of
fact. This factor turns on whether the expert testimony “concerns matters that are
beyond the understanding of the average lay person.” Frazier, 387 F.3d at 1262.
“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.” Id. at
1262–63. “Nor does expert testimony help the trier of fact if it fails to ‘fit’ with the facts
of the case.” Stoner v. Fye, No. 5:15‐cv‐102 (CAR), 2017 WL 2434461, at *4 (M.D. Ga. June
5, 2017) (quoting McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004)). “Expert
testimony lacks ‘fit’ when ‘a large analytical leap must be made between the facts and
the opinion.’” Id. (quoting McDowell, 392 F.3d at 1299); see also Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997). “A court may conclude that there is simply too great an analytical
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gap between the data and the opinion proffered.” Joiner, 522 U.S. at 146. “Thus, the
court may exclude otherwise reliable testimony if it does not have ‘sufficient bearing on
the issue at hand to warrant a determination that it [is helpful to the trier of fact].’ ”Fye,
2017 WL 2434461, at *4 (quoting Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1234 (10th Cir.
2005)). “At all times when scrutinizing the reliability and relevance of expert testimony,
a court must remain mindful of the delicate balance between its role as a gatekeeper
and the juryʹs role as the ultimate fact‐finder.” Id.
B.
Motion to Exclude Lustig’s Life Care Plan Testimony
At bottom, Hall and Oakley argue that Lustig’s testimony should be excluded
because her “life care plan offers no guidance as to the applicability of either Scenario 1
or Scenario 2.” [Doc. 61‐1, p. 4]. Further, the “drastic difference between [Scenario 1 and
2] coupled with Ms. Lustig’s inability to state which scenario applies would confuse a
jury rather than assist it in determining purported future care needs.” [Id. at pp. 4–5].
Finally, Hall and Oakley argue that because White has no need for future medical
treatment, both Scenario 1 and 2 are unreliable and unhelpful. [Id. at p. 7]. Hall and
Oakley do not argue that Lustig is unqualified. Instead, their arguments are aimed at
challenging the reliability and helpfulness of her testimony. See Frazier, 387 F.3d at 1260
(explaining the three requirements for admitting expert testimony: qualification of
expert, reliable methodology, and helpfulness to trier of fact).
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First, White has met his burden of showing that that the life care plan testimony
is helpful to the trier of fact. Hall and Oakley’s argument to the contrary misses the
mark. They cite to portions of Lustig’s deposition where, according to them, she is
“unable” to state which scenario applies. [Doc. 61‐1, p. 4]; [Lustig Depo., Doc. 61‐4, pp.
80:18—81:14]. But the reason she was unable to do so at the time of the deposition was
because she had not reviewed White’s updated information in over two years. [Lustig
Depo., Doc. 66‐3, p. 75:19–22]. Lustig testified that she can provide an updated opinion
on whether Scenario 1 or 2 most accurately applies if (when) she reviews updated
information about White. [Id. at pp. 81:15—83:12 (“[B]ased on [White’s] testimony and a
follow‐up interview, that’s when I could answer your question” about whether Scenario
2 would weigh more heavily than Scenario 1.)]. After Lustig reviewed White’s latest
deposition and analyzed his updated “human response” to his medical diagnosis, she
provided an updated opinion on whether Situation 1 or 2 would best guide the jury.
[Lustig. Affid., Doc. 66‐4, p. 8].
Critically, White doesn’t want to simply introduce the life care plan and then let
the jurors figure it out on their own. Instead, White intends to have Lustig testify as to
which scenario applies based on her understanding of White’s current medical status.
[Lustig Depo., Doc. 66‐3, pp. 75:19–22, 81:15—83:12]. In sum, the Court finds that
Lustig’s life care plan, coupled with her opinion about which of the scenario’s plans is
most accurate at the time of trial, could be helpful to the trier of fact.
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Second, White met his burden of showing that Lustig used reliable methodology
to generate White’s life care plan. Defendants’ only argument against reliability is that
because White has “not treated or taken any medications for over two years,” the very
presentation of a life care plan is itself misleading and presumably inaccurate because,
if the last two years are indicative of his medical condition, he doesn’t need any life care
at all. [Doc. 61‐1, p. 4]. True, courts sometimes find expert testimony about life care
plans unreliable (and thus excludable) when the proffered expert offers an opinion of
future medical costs without explaining the factual basis for those opinions. See, e.g.,
Rinker v. Carnival Corp., No. 09‐23154‐CIV, 2012 WL 37381, at *2 (S.D. Fla. Jan. 6, 2012)
(“However, nothing in the report indicates where or how Dr. Lessne developed these
numbers. At his deposition, Dr. Lessne admitted that he did not speak with Plaintiffʹs
doctors or Plaintiff. He also admitted that all of the projected medical care and
frequency estimates are simply his opinion.”). But that is not the case here. Lustig
generated the life care plan scenarios after she consulted with Dr. Lugo, White’s treating
orthopedic surgeon; reviewed White’s medical records; and collaborated with White’s
health care team. [Lustig Affid., Doc. 66‐4, ¶¶ 12–21]; [Lustig Depo., Doc. 66‐3, p. 74:2–
11 (Lustig confirmed that she didn’t include any treatment listed in the life care plan
that Dr. Lugo did not recommend)].
The Court concludes that Hall and Oakley’s objections better relate “to the
weight, and not the admissibility” of Lustig’s testimony. M.D.P. v. Middleton, 925 F.
8
Supp.2d 1272, 1276 (M.D. Ala. Feb. 7, 2013) (finding that the expert’s life care plan
testimony was admissible). Therefore, Lustig “will be able to testify, and be subject to
cross‐examination, about [her] opinions in this case.” Id.
C.
Motion to Exclude Dr. Wood’s Expert Testimony
Hall and Oakley seek to exclude Dr. Wood’s testimony regarding (1) funding for
Lustig’s life care plan; and (2) White’s after‐trial loss in earning capacity. [Doc. 61‐1, p.
7].1 First, they argue that “[t]he viability of Dr. Wood’s opinion testimony concerning
the funding of Ms. Lustig’s life care plan depend[s] solely on the legitimacy of [the] life
care plan.” [Id. at p. 8 (emphasis added)]. As discussed in Section B, supra, the Court
will allow the jury to hear Lustig’s life care plan testimony. Therefore, this objection
fails. The Defendants may certainly point out their contentions in cross examination,
but the jury may hear this portion of Dr. Wood’s testimony. [Doc. 61‐1, p. 8].
Second, Hall and Oakley argue that “Dr. Wood’s opinion testimony about
Plaintiff’s after‐trial loss in future earning capacity is imprecise, unspecific, and will not
assist a jury.” [Doc. 61‐1, p. 8]. Hall and Oakley equate Dr. Wood’s testimony to the
expert in McGinnis v. American Home Mortg. Servicing, Inc., No. 5:11‐cv‐284‐CAR, 2013
WL 3338922, at *10 (M.D. Ga. July 2, 2013). [Doc. 61‐1, p. 9]. There, the court excluded
the opinion testimony because “Berry [the purported expert] roughly estimates the
Hall and Oakley “do not seek to exclude Dr. Wood’s opinion testimony concerning before‐trial loss in
earning capacity, relating to certain periods before his December 2017 surgery and during the few months
after this surgery.” [Doc. 61‐1, p. 8].
1
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accuracy of Homewardʹs analyses by referring generally to a ‘ball park’ figure, thus
rendering an imprecise and unspecific opinion.” McGinnis, No. 5:11‐cv‐284‐CAR, 2013
WL 3338922, at *10. But, Dr. Wood doesn’t use “ball park” figures. Instead, he reviewed
White’s annual income as shown on his tax returns and calculated the present value of
that amount using a standard discount rate and expected future years of employment.
[Wood Report, Doc. 61‐7]; [Wood Depo., Doc. 61‐6, p. 34:3–23]. Dr. Wood’s report
shows that if White loses 100% of his future income, the present value of that amount
would be $956,443. [Doc. 61‐7, p. 3].
But, Hall and Oakley take issue with the report’s reference to a zero‐to‐100%
range. [Doc. 61‐1, p. 9]. The Court does not. The parties are free to argue about the
applicable percentage of White’s loss to future earnings capacity at trial. See Hernandez
v. Crown Equip. Corp., 92 F.Supp.3d 1325, 1354 (M.D. Ga. Mar. 11, 2015) (“Courts have
recognized that, although the opposing party may use cross examination to challenge
the factual basis for the economist’s assumptions, the process of placing a present value
on future expenses is nonetheless reliable and useful for the jury.”). Accordingly, Wood
“will be able to testify, and be subject to cross‐examination, about [his] opinions in this
case.” Middleton, 925 F. Supp.2d at 1276.
CONCLUSION
The Court exercises its discretion as “gatekeeper” to allow the jury to hear the
testimony of Lustig and Wood. Daubert, 509 U.S. at 589, n.7 (1993). To rule otherwise
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would “supplant the adversary system [and] the role of the jury.” Ala. Power Co., 730
F.3d at 1282. Therefore, the Court DENIES Hall and Oakley’s Motion to Exclude the
Opinion Testimony of Sarah Lustig and Certain Opinion Testimony of Oliver Wood
[Doc. 61].
SO ORDERED, this 6th day of November, 2020.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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