Rigsbee v. Honolulu, City & County of
Filing
181
ORDER GRANTING PLAINTIFF'S MOTION TO EXCLUDE UNFOUNDED ECONOMIC OPINIONS (ECF NO. 131 ) re 177 - Signed by JUDGE HELEN GILLMOR on 3/6/2019. Plaintiff's Motion to Exclude Unfounded Economic Opinions is < B>GRANTED. Defendant's expert Jack C. Suyderhoud, Ph.D. is permitted to testify at trial. Dr. Suyderhoud's opinions must conform to the Court's October 16, 2018 ORDER GRANTING PLAINTIFF'S MOTION FOR DISPOS ITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING THE AVAILABILITY OF HEDONIC DAMAGES AND GRANTING PLAINTIFF'S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING THE ESTATE'S SURVIVAL-CLAIM FOR FUTURE LO ST EARNINGS. (ECF No. 99). Dr. Suyderhoud may not provide legal opinions. He also may not rely on Hawaii Revised Statutes §§ 663-7 and 663-8 for his opinion. Specifically, he may not testify that Plaintiff's loss of future ea rnings damages should be reduced pursuant to Hawaii state law. Dr. Suyderhoud is precluded from testifying that pre-judgment interest is not available in this case. The Court rules that the remedy of pre-judgment interest is available in this case. (emt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLIFFORD MCARTHUR RIGSBEE, as
Personal Representative of the
Estate of Clifford Meredith
Rigsbee, deceased,
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)
)
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Plaintiff,
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vs.
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CITY AND COUNTY OF HONOLULU,
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Defendant.
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_________________________________)
Civ. No. 17-00532 HG-RT
ORDER GRANTING PLAINTIFF’S MOTION TO EXCLUDE UNFOUNDED ECONOMIC
OPINIONS (ECF No. 131)
This is a maritime action relating to the death of Clifford
Meredith Rigsbee.
On June 14, 2016, the decedent was engaged in
rescue watercraft training as part of his duties as a firefighter
with the Honolulu Fire Department.
During the ocean training,
the decedent suffered blunt force injury to his head and neck.
He died two days later as a result of his injuries.
Plaintiff Clifford McArthur Rigsbee, as Personal
Representative of the Estate of Clifford Meredith Rigsbee, filed
a Motion seeking to exclude from evidence certain economic
opinions of Defendant’s expert, Jack C. Suyderhoud, Ph.D.
Plaintiff’s Motion to Exclude Unfounded Economic Opinions is
GRANTED.
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Defendant’s expert Jack C. Suyderhoud, Ph.D. is permitted to
testify at trial.
Dr. Suyderhoud’s testimony shall not attempt to circumvent
the Court’s October 16, 2018 ORDER GRANTING PLAINTIFF’S MOTION
FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a)
REGARDING THE AVAILABILITY OF HEDONIC DAMAGES AND GRANTING
PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P.
16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR FUTURE
LOST EARNINGS.
(ECF No. 99).
Nor may Dr. Suyderhoud provide legal opinions.
He also may
not rely on Hawaii Revised Statutes §§ 663-7 and 663-8 for his
opinion.
Specifically, he may not testify that Plaintiff’s loss
of future earnings damages should be reduced pursuant to Hawaii
state law.
Dr. Suyderhoud is precluded from testifying that prejudgment interest is not available in this case.
The Court rules that pre-judgment interest is available in
this case.
An award of pre-judgment interest and the rate
thereof is a matter for trial.
PROCEDURAL HISTORY
On October 23, 2017, Plaintiff Clifford McArthur Rigsbee, as
Personal Representative of the Estate of Clifford Meredith
Rigsbee, deceased, filed a Complaint.
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(ECF No. 1).
On May 17, 2018, Plaintiff filed the FIRST AMENDED
COMPLAINT.
(ECF No. 36).
On July 18, 2018, Plaintiff filed PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
AVAILABILITY OF HEDONIC DAMAGES and a Concise Statement of Facts
in Support.
(ECF Nos. 48 and 49).
On the same date, Plaintiff filed PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE ESTATE’S SURVIVAL-CLAIM FOR FUTURE LOST EARNINGS and a
Concise Statement of Facts in Support. (ECF Nos. 50 and 51).
On August 7, 2018, Defendant filed DEFENDANT CITY AND COUNTY
OF HONOLULU’S STATEMENT OF NO POSITION TO PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE ESTATE’S SURVIVAL-CLAIM FOR FUTURE LOST EARNINGS.
(ECF No.
57) (emphasis added).
On the same date, Defendant filed DEFENDANT CITY AND COUNTY
OF HONOLULU’S STATEMENT OF NO POSITION TO PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
THE AVAILABILITY OF HEDONIC DAMAGES.
(ECF No. 58) (emphasis
added).
On October 16, 2018, the Court issued an ORDER GRANTING
PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P.
16 AND 56(a) REGARDING THE AVAILABILITY OF HEDONIC DAMAGES AND
GRANTING PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
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CIV. P. 16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR
FUTURE LOST EARNINGS.
(ECF No. 99).
On February 7, 2019, Plaintiff filed PLAINTIFF’S MOTION TO
EXCLUDE UNFOUNDED ECONOMIC OPINIONS.
(ECF No. 131).
On February 15, 2019, Defendant filed DEFENDANT CITY AND
COUNTY OF HONOLULU’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S
MOTION TO EXCLUDE UNFOUNDED ECONOMIC OPINIONS.
(ECF No. 136).
STANDARD OF REVIEW
Federal Rule of Evidence 702 provides that “scientific,
technical, or other specialized knowledge” by a qualified expert
is admissible if it will “help the trier of fact to understand
the evidence or to determine a fact in issue.”
Fed. R. Civ. P.
702.
The United States Supreme Court held in Daubert v. Merrell
Dow Pharms., 509 U.S. 579, 589 (1993) that the District Court has
a gatekeeping responsibility to objectively screen expert
testimony to ensure that it is not only relevant, but reliable.
The District Court’s obligation applies to technical and other
specialized knowledge as well as testimony based on scientific
knowledge.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42
(1999).
The Ninth Circuit Court of Appeals has explained that expert
testimony is relevant if the evidence logically advances a
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material aspect of the party’s case.
Estate of Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 463-64 (9th Cir. 2014).
ANALYSIS
The Parties do not dispute that Defendant’s expert Jack P.
Suyderhoud, Ph.D. is qualified to provide expert testimony
regarding economic damages and that economic damages are relevant
to the case.
The dispute concerns the scope of Dr. Suyderhoud’s opinion
and whether his calculations are based on incorrect or irrelevant
law.
Specifically, Plaintiff argues that Dr. Suyderhoud’s
calculations based on the decedent’s loss of future earnings are
based on inapplicable Hawaii state law.
Plaintiff also argues
that Dr. Suyderhoud’s opinions about the availability of prejudgment interest are erroneous and should be excluded.
I.
The Court Has Issued A Prior Ruling On Economic Damages
Available In This Case
A.
Filings On Plaintiffs’ Motions For Partial Summary
Judgment As To Damages Available
On July 18, 2018, Plaintiff sought summary judgment as to
some of the damages available in its general maritime law action
brought against the Defendant.
(Pla.’s Motions for Partial
Summary Judgment, ECF Nos. 48-51).
Defendant City and County of Honolulu filed statements of No
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Position in response to Plaintiff’s Motions.
(Def.’s Statements
of No Position, ECF Nos. 57-58).
On October 16, 2018, the Court issued an ORDER GRANTING
PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P.
16 AND 56(a) REGARDING THE AVAILABILITY OF HEDONIC DAMAGES AND
GRANTING PLAINTIFF’S MOTION FOR DISPOSITIVE RULINGS UNDER FED. R.
CIV. P. 16 AND 56(a) REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR
FUTURE LOST EARNINGS.
B.
(ECF No. 99).
The Court Ruled That Plaintiff Is Able To Seek Damages
For Loss Of Future Earnings And Hedonic Damages
Plaintiff moved for partial summary judgment seeking rulings
from the Court that certain types of damages were available.
Plaintiff sought rulings to ensure it could seek future earnings
damages and hedonic damages.
It did not seek to limit it’s
damages, but only to expand the remedies that were available.
The Court ruled that there is federal maritime jurisdiction
and that general maritime law applies to the claims brought by
Plaintiff, on behalf of the Estate of the deceased.
(Court’s
October 16, 2018 Order at pp. 7-9, ECF No. 99).
The Court ruled that remedies available under general
maritime law apply as set forth in Moragne v. States Marine
Lines, Inc., 398 U.S. 375, 393, 409 (1970) and Yamaha Motor
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 208 (1996).
9-10).
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(Id. at pp.
Two remedies that the Court finds applicable are:
(1)
loss of future earnings pursuant to general maritime
law; and,
(2)
hedonic damages pursuant to Hawaii state law.
(Court’s October 16, 2018 Order, ECF No. 99).
First, the Court ruled that the Estate can seek damages for
loss of future earnings as set forth in Evich v. Morris, 819 F.2d
256, 258 (9th Cir. 1987).
Second, the Court ruled that hedonic damages are available
under Hawaii state law.
Such state law remedies are permitted
under general maritime law where they expand the relief available
to a plaintiff, but are not applicable if they decrease or
preclude the remedies available under general maritime law.
Schoenbaum, 1 Adm. & Mar. Law § 8:3 (6th ed. 2018) (citing In re
Antill Pipeline Const. Co., Inc., 866 F.Supp.2d 563, 567 (E.D.
La. 2011)).
Defendant’s expert report seeks to limit one of the remedies
that the Court ruled is available: the loss of future earnings
damages.
Defendant’s economic expert submitted an expert report
that requires limitation on the damages for loss of future
earnings based on Hawaii state law.
The expert opines that Hawaii law requires the decedent’s
future lost earnings be reduced by his personal consumption.
The
expert also opines that pre-judgment interest is not available.
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II.
Defendant’s Economic Expert Opinion
A.
Dr. Suyderhoud Is An Expert
Defendant’s economic expert, Jack P. Suyderhoud, Ph.D., is
qualified to provide expert testimony regarding economic damages
pursuant to Federal Rule of Evidence 702.
Dr. Suyderhoud may provide specialized knowledge in order to
“help the trier of fact to understand the evidence or to
determine a fact in issue.”
B.
Fed. R. Civ. P. 702.
Defendant’s Expert Report Contains Calculations Based
On Inapplicable Hawaii State Law
The Estate is entitled to seek damages based on the
decedent’s loss of future earnings pursuant to general maritime
law.
(Court’s October 16, 2018 Order on Partial Summary
Judgment, ECF No. 99).
Defendant did not file an Opposition to the Plaintiff’s
Motions seeking rulings on the availability of loss of future
earnings damages.
Defendant now seeks to limit Plaintiff’s recovery for loss
of future earnings by implementing the portion of Hawaii state
law that would diminish Plaintiff’s recovery.
Defendant’s economic expert, Jack P. Suyderhoud, Ph.D.,
prepared a report.
(Dr. Suyderhoud’s Report, attached as Ex. B
to Pla.’s Motion, ECF No. 131-4).
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Dr. Suyderhoud’s report
includes a calculation for loss of future earnings damages.
Dr.
Suyderhoud applied Hawaii Revised Statutes §§ 663-7 and 663-8 in
making his calculations.
Dr. Suyderhoud applied the statute in
forming the basis for his opinion as to Plaintiff’s potential
recovery for loss of future earnings.
Haw. Rev. Stat. §§ 663-7 and 663-8 govern survival action
pursuant to Hawaii state law.
Section 663-8 provides:
Together with other damages which may be recovered by
law, the legal representative of the deceased person
may recover where applicable under section 663-7 the
future earnings of the decedent in excess of the
probable cost of the decedent’s own maintenance and the
provision the decedent would have made for the
decedent’s actual or probable family and dependents
during the period of time the decedent would have
likely lived but for the accident.
Haw. Rev. Stat. § 663-8.
Dr. Suyderhoud’s calculations reduced Plaintiff’s loss of
future earnings damages by 50% pursuant to Haw. Rev. Stat. § 6638.
Dr. Suyderhoud concludes that Plaintiff’s estate would be
entitled to a maximum of $250,000 for loss of future earnings
pursuant to Hawaii state law.
Plaintiff objects to the basis and the conclusions of Dr.
Suyderhoud’s opinion.
Plaintiff argues that Dr. Suyderhoud
should be precluded from providing legal opinions and opinions
that contradict the Court’s rulings.
Plaintiff asserts that to
the extent the Defendant’s expert’s opinion is based on Hawaii
Revised Statutes § 663-8, rather than general maritime law, his
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opinion should be excluded.
The Court finds that Dr. Suyderhoud is precluded from
offering legal conclusions and rendering opinions as to the law
applicable in this case.
Nationwide Transport Fin. v. Cass Info.
Sys., Inc., 523 F.3d 1051, 1058-59 (9th Cir. 2008); CFM Comm.,
LLC v. Mitts Telecasting Co., 424 F.Supp.2d 1229, 1233-34 (E.D.
Cal. 2005) (explaining that although concerns about admitting
expert opinion may be lessened when the court is the trier of
fact, the trial judge has broad discretion to exclude expert
opinion testimony that attempts to usurp the role of the trial
judge in determining the relevant law).
Dr. Suyderhoud’s reliance on Haw. Rev. Stat. §§ 663-7 and
663-8 is misplaced.
The Court has already ruled that loss of
future earnings damages are available pursuant to federal
maritime law.
The expert’s reliance on inapplicable Hawaii state law is
not relevant and does not assist the Court in arriving at a
damages calculation in this case.
G. v. Hawaii Dept. Of Human
Srvcs., 703 F.Supp.2d 1112, 1123 (D. Haw. 2010) (explaining that
expert opinion concerning a statute or legal standard that is not
applicable to the case is not relevant and is inadmissible).
A similar issue was raised in MacLay v. M/V SAHARA, 926
F.Supp.2d 1209, 1220-21 (W.D. Wash. 2013).
In MacLay, the owner
of a vessel attempted to invoke state law in order to limit the
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damages available to the plaintiff who was the personal
representative of a non-seafarer who died in state territorial
waters.
The plaintiff pursued survival and wrongful death claims
pursuant to federal maritime law, not state law.
The vessel owner argued that the Washington State wrongful
death statute did not allow for loss of society damages sought by
the plaintiff.
The vessel owner asserted that Washington State
law should have applied to limit the damages available to the
plaintiff.
The Washington Federal District Court disagreed.
The
court held that “[a]lthough state law wrongful death remedies may
be applied to enlarge the range of recoverable damages available,
Defendants have not shown that, [under Ninth Circuit Court
precedent], such statutes limit the nature of damages otherwise
available under federal maritime law.”
Id.
Another court in the District of Hawaii has agreed with the
Washington Federal District Court’s reasoning.
The Hawaii
Federal District Court held that “State law on liability and
limitations of damages that conflicts with and limits the relief
available under federal maritime law should not be applied.”
Hambrook v. Smith, Civ. No. 14-00132 ACK-KJM, 2016 WL 4408991, at
*24 (D. Haw. Aug. 17, 2016).
General maritime law does not reduce a decedent’s loss of
future earnings based on personal consumption or maintenance as
set forth in Hawaii state law.
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The Court looks to federal maritime law for determining loss
of future earnings calculations.
Courts generally apply a four-
step procedure to calculate such damages in general maritime law:
First, the loss of work life resulting from the injury
or death is determined.
Second, the lost income stream is calculated by
estimating what the victim would have earned (including
fringe benefits). To make this judgment, which is
necessarily speculative, proof may be introduced not
only regarding the victim’s current wages, but also
positive factors: what he might have received for
individual merit and gains in productivity, as well as
negative factors: that employment and wages are
declining in the industry.
Third, the total damages are determined by subtracting
the plaintiff’s post accident earning power from his
normal earning power (both figures are after-tax) and
multiplying the difference by his work-life expectancy.
Fourth, the future income loss must be discounted by a
discount rate established by the “market interest
rate,” the rate of interest earned on the best and
safest investments. This discounting is necessary
because damages paid in a lump sum are worth more than
the same sum paid over a period of years in the future.
Schoenbaum, 1 Am. & Mar. Law § 5-16(1)(b)(6th ed. 2018)
(citing Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir.
1983) (en banc)).
Defendant’s expert may not base his opinion on inapplicable
Hawaii state law.
The expert’s economic opinions must conform
with the Court’s prior rulings and the remedies available
pursuant to general maritime law.
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C.
Defendant’s Expert Offers Opinions On Pre-Judgment
Interest That Are Contrary To General Maritime Law
Dr. Suyderhoud’s opinion states that pre-judgment interest
is not available in this case.
such an opinion.
legal issue.
Dr. Suyderhoud may not provide
Experts may not offer opinions on a purely
Aguilar v. Int’l Longshoremen’s Union Local 10, 966
F.2d 443, 447 (9th Cir. 1992).
Dr. Suyderhoud’s opinion concerning the availability of prejudgment interest is contrary to the law applicable in this case.
The Ninth Circuit Court of Appeals ruled in Evich, 819 F.2d at
259, that pre-judgment interest is recoverable in general
maritime survival actions.
The remedy of pre-judgment interest is available.
Matters
concerning interest and the rate of interest are matters left for
trial.
CONCLUSION
Plaintiff’s Motion to Exclude Unfounded Economic Opinions
is GRANTED.
Defendant’s expert Jack C. Suyderhoud, Ph.D. is permitted to
testify at trial.
Dr. Suyderhoud’s opinions must conform to the Court’s
October 16, 2018 ORDER GRANTING PLAINTIFF’S MOTION FOR
DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a) REGARDING
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THE AVAILABILITY OF HEDONIC DAMAGES AND GRANTING PLAINTIFF’S
MOTION FOR DISPOSITIVE RULINGS UNDER FED. R. CIV. P. 16 AND 56(a)
REGARDING THE ESTATE’S SURVIVAL-CLAIM FOR FUTURE LOST EARNINGS.
(ECF No. 99).
Dr. Suyderhoud may not provide legal opinions.
He also may
not rely on Hawaii Revised Statutes §§ 663-7 and 663-8 for his
opinion.
Specifically, he may not testify that Plaintiff’s loss
of future earnings damages should be reduced pursuant to Hawaii
state law.
Dr. Suyderhoud is precluded from testifying that prejudgment interest is not available in this case.
The Court rules that the remedy of pre-judgment interest is
available in this case.
IT IS SO ORDERED.
Dated: March 6, 2019, Honolulu, Hawaii.
Clifford McArthur Rigsbee as Personal Representative of the
Estate of Clifford Meredith Rigsbee, deceased v. City and County
of Honolulu; Civ. No. 17-00532 HG-RT; ORDER GRANTING PLAINTIFF’S
MOTION TO EXCLUDE UNFOUNDED ECONOMIC OPINIONS (ECF No. 131)
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