Whitchurch v. Canton Marine Towing Co., Inc.

Filing 45

OPINION: Defendant Canton Marine Towing Co., Inc.'s Motion to Exclude the Expert Testimony of Dr. Rebecca Summary (d/e 34) is DENIED. Dr. Summary's opinions will not be barred in limine. The Court, however, will continue to perform its gatekeeping function in light of the evidence proven to it as the fact finder at the bench trial. In re Salem, 465 F.3d at 777. (SEE WRITTEN OPINION.) Entered by Magistrate Judge Tom Schanzle-Haskins on 11/28/2017. (GL, ilcd)

E-FILED

Tuesday, 28 November, 2017 12:32:00 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
KORI WHITCHURCH,

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Plaintiff,
v.
CANTON MARINE
TOWING CO., INC.,
Defendant.

No. 16-cv-3278

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant Canton Marine
Towing Co., Inc.’s (Canton Marine) Motion to Exclude the Expert Testimony
of Dr. Rebecca Summary (d/e 34) (Motion). For the reasons set forth
below, the Motion is DENIED.
BACKGROUND
Plaintiff Kori Whitchurch worked for Canton Marine as a deckhand in
August 2016. Whitchurch alleges that he injured his shoulder while
working on Canton Marine’s vessel. Whitchurch brought this action for
damages under the Jones Act, 46 U.S.C. § 30104, and general maritime
law. See Verified Complaint in Admiralty (d/e 1).

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Whitchurch disclosed in discovery the expert opinions of Dr. Rebecca
Summary, Ph.D. Dr. Summary is an economist. Dr. Summary performed a
present value study of Whitchurch’s lost earning potential as a result of his
injuries. Motion, attached Exhibit A, Expert Report of Dr. Summary
(Report). Whitchurch was 37 years old at the time of the Accident. Dr.
Summary assumed Whitchurch could earn his current wages at the time of
the Accident for the next 30 years until he was 67 years old. Dr. Summary
assumed that at the time of the Accident, Whitchurch worked a 7 days on,
4 days off schedule and earned $140 per workday. Dr. Summary
calculated the gross annual earnings on such a schedule to be $32,480.00.
Dr. Summary calculated the gross employer-paid fringe benefits to be
$10,151.00.
Dr. Summary determined an appropriate discount rate by calculating
the difference between the average interest rates on 3-month, 6-month,
and 10-year Treasury notes and bills (5.4%) from 1976 to 2016 and the
historic growth rate of earnings from the same period (3.8%) to reach a
discount rate of 1.6%. Dr. Summary multiplied the annual gross salary
times the number of years and months from the time of her report, June 30,
2017, until Whitchurch would become 67 years old, and then divided by the
discount rate of 1.6 to calculate a present value of lost future earning
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capacity to be $609,607.00. Dr. Summary performed a similar calculation
to estimate the lost fringe benefits to be $213,413.00.
Dr. Summary used federal and state tax tables to calculate
Whitchurch’s net after-tax income to be $28,996.00. Dr. Summary
calculated the amount of Whitchurch’s after-tax income and fringe benefits
lost from the date of the Accident until June 30, 2017 to be $33,331.00.
Canton Marine moves to bar her opinions as inadmissible under the
principles announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, (1993), and codified in Federal Rule of Evidence 702.
ANALYSIS
Federal Rule of Evidence 702 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 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.

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Fed. R. Evid. 702. This Court must perform a gatekeeping function to
determine that expert testimony is reliable and relevant under the principles
codified in Rule 702. See Daubert, 509 U.S. at 597. In performing this
function, the Court must determine the reliability and the relevance of the
evidence. Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 816
(7th Cir. 2004).
This case, however, is set for a bench trial. The Court is both
gatekeeper and factfinder. In such a situation, there is less need to decide
whether to exclude expert testimony in limine before the trial,
Where the gatekeeper and factfinder are one and the same—
that is, the judge—the need to make such decisions prior to
hearing the testimony is lessened. . . . [T]he court can hear the
evidence and make its reliability determination during, rather
than in advance of, trial. Thus, where the factfinder and the
gatekeeper are the same, the court does not err in admitting the
evidence subject to the ability later to exclude it or disregard it if
it turns out not to meet the standard of reliability established by
Rule 702.
In re Salem, 465 F.3d 767, 777 (7th Cir. 2006). The Court, therefore, will
continue to act as gatekeeper at trial even if Dr. Summary’s opinions, or
any expert’s opinions, are not excluded pretrial in limine.
Under Rule 702 and Daubert, the Court must first evaluate the
qualifications of the expert. In this case, Dr. Summary is a Ph.D. economist
with experience in present value analysis. Canton Marine does not
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challenge Dr. Summary’s qualifications as an expert to perform a present
value study of Whitchurch’s lost future income.
The Court must then determine whether the expert testimony is
reliable and relevant and whether his opinions will assist the trier of fact in
determining a fact in issue. See Ammons, 368 F.3d at 816. The Court
must evaluate the reliability of the expert’s methodology. Manpower Inc. v.
Insurance Co. of Penn., 732 F.3d 796, 806 (7th Cir. 2013). The Court,
however, does not evaluate at the pretrial stage of the proceeding the
quality of the underlying data or the quality of the expert’s conclusions.
“The soundness of the factual underpinnings of the expert’s analysis and
the correctness of the expert’s conclusions based on that analysis are
factual matters to be determined by the trier of fact, or, where appropriate,
on summary judgment.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir. 2000). At trial, the Court as the factfinder will decide the soundness of
the factual underpinnings and the correctness of the conclusions.
The Court must also evaluate whether the expert’s opinions are
relevant and fit the issue to which the expert is testifying. See Deimer v.
Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344 (7th Cir. 1995); see
Ammons, 368 F.3d at 816. Evidence is relevant if “it has a tendency to
makes a fact [at issue] more or less probable that it would be without the
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evidence.” Fed. R. Evid. 401(a). The evidence, “‘need not conclusively
decide the ultimate issue in a case, nor make the proposition appear more
probable, “but it must in some degree advance the inquiry.’”” Thompson v.
City of Chicago, 472 F.3d 444, 453 (quoting E.E.O.C. v. Indiana Bell
Telephone Co., 256 F.3d 516, 533 (7th Cir. 2001) (quoting 1 J. Weinstein &
M. Berger, Weinstein’s Federal Evidence § 401.04[2][b])).
In this case, Dr. Summary used an appropriate methodology for
calculating present value of lost future earning capacity. Dr. Summary
determined a discount rate based on Treasury rates and earnings growth
rates. Canton Marine does not challenge this methodology. She
calculated the total lost earning potential, based on Whitchurch’s daily
wages and his working schedule at the time of the Accident. She
calculated the total earnings until Whitchurch’s qualification for full Social
Security benefits and applied the discount rate to that number to reach a
present value. Dr. Summary used a reliable methodology.
Dr. Summary’s opinions are also relevant and fit the issue of
damages. Whitchurch alleges that he was injured and lost earning capacity
as a result of his injuries. A present value analysis is the appropriate way
to calculate the amount of damages for such injuries. See e.g., , Federal
Civil Jury Instructions of The Seventh Circuit (Committee on Pattern Civil
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Jury Instructions of the Seventh Circuit revised August 2017), Instruction
7.26 Compensatory Damages (“[The [wages, salary, profits, earning
capacity] that Plaintiff has lost [and the present value of the [wages, salary,
profits, earning capacity] that Plaintiff is reasonably certain to lose in the
future] because of his [inability/diminished ability] to work.]]”). Dr.
Summary’s analysis is, therefore, relevant and fits the issue of damages for
lost earning capacity.
Canton Marine argues that Dr. Summary’s opinions are not based on
the facts of this case. Canton Marine argues that she incorrectly assumed
Whitchurch had the earning capacity to make his fulltime wage at Canton
Marine for the rest of his life. Canton Marine argues that she incorrectly
assumed Whitchurch had the earning capacity to receive the fringe benefits
of a fulltime permanent employee of Canton Marine for the rest of his life.
Canton Marine argues that Dr. Summary incorrectly assumed that
Whitchurch lost all earning capacity in the Accident. Canton Marine points
to evidence that Whitchurch is in fact working.
All of Canton Marine’s arguments go to the validity of the factual
underpinnings of Dr. Summary’s opinions. The Court, as factfinder, will
determine all those issues at trial. Whitchurch will need to prove the
validity of those assumptions at trial. If he fails to do so, the Court as
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factfinder and gatekeeper at trial will disregard Dr. Summary’s opinions.
Her opinions regarding lost earning capacity, however, will not be excluded
in limine in this bench trial proceeding.
Moreover, even if Whitchurch fails to prove the validity of Dr.
Summary’s assumption about Whitchurch’s future earning capacity and the
impact of the Accident on his earning capacity, her opinion regarding the
appropriate discount rate would still be relevant. Should Whitchurch
establish liability at trial, the Court would need to calculate a present value
of the lost earning capacity proven at trial. The discount rate alone would
still be relevant and would aid the Court as factfinder.
Canton Marine also challenges her opinions about Whitchurch’s
calculations of lost past wages and benefits. Dr. Summary took her
calculations of Whitchurch’s annual wages and benefits at the time of the
Accident, subtracted taxes based on federal and state tax tables, and
calculated the amount lost for the period from the Accident to June 30
2016. The straightforward calculation of lost wages and benefits is relevant
to the issue of damages. The opinion will not be barred in limine.
Whitchurch, of course, must still prove the factual underpinnings of the
calculation at trial.

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Canton Marine argues that Dr. Summary failed to consider
supplemental wages that Canton Marine paid Whitchurch after the
Accident. Canton Marine is again challenging the factual underpinnings of
Dr. Summary’s analysis, not her methodology or the relevance of a
calculation of lost back wages. At trial, Whitchurch must prove the factual
basis for Dr. Summary’s opinions. If he does not, the Court will disregard
these opinions. The Court, however, will not bar the opinions in limine.
Canton Marine argues in its Reply that Dr. Summary should not be
allowed to express new opinions that were not previously disclosed.
Whitchurch, or any party, must properly disclose expert opinions in
discovery before the opinions may be admitted at trial unless the failure to
disclose is substantially justified or harmless. Fed. R. Civ. P. 26(a)(2) and
(e), and 37(c). Whitchurch has not identified specific new opinions he
plans to admit at trial. The Court, therefore, will not bar specific opinions in
limine. Canton Marine may object at trial to any attempt to admit expert
opinions that Whitchurch did not disclose in discovery. The Court will
address the matter at trial.
THEREFORE, IT IS ORDERED: Defendant Canton Marine Towing
Co., Inc.’s Motion to Exclude the Expert Testimony of Dr. Rebecca
Summary (d/e 34) is DENIED. Dr. Summary’s opinions will not be barred
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in limine. The Court, however, will continue to perform its gatekeeping
function in light of the evidence proven to it as the factfinder at the bench
trial. In re Salem, 465 F.3d at 777.
ENTER: November 28, 2017

s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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