Crouch et al v. Honeywell International, Inc. et al

Filing 532

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. For reasons set forth, the Motion to Exclude (DN 423 ) is granted. cc: Counsel (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:07-CV-638-DJH

LARRY CROUCH, et al.,

Plaintiffs,

v.
JOHN JEWELL AIRCRAFT, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is a “Motion to Exclude Harvey Rosen’s Expert Report” (“Motion to
Exclude”) (DN 423) filed by defendant John Jewell Aircraft, Inc. (“JJA”). Plaintiffs Larry
Crouch, Rhonda Crouch, Teddy Hudson, and Carolyn Hudson have filed a response (DN 435),
and JJA filed a reply (DN 453). Thus, this matter is ripe for review. For the reasons stated
herein, the Motion to Exclude is granted.
I.

BACKGROUND
This matter arises out of a plane crash that occurred on November 21, 2006 when Larry

Crouch was operating a Piper aircraft en route from Mayfield, Kentucky to Frankfort, Kentucky.
Teddy Hudson was a passenger in the aircraft. Crouch and Hudson suffered serious injuries,
including paraplegia, as a result of the plane crash. Plaintiffs filed their complaint in this Court
on November 19, 2007 suing various parties. This matter has followed a complicated and
convoluted path since that time. The Court will recount part of that history here to give this
memorandum opinion some context.
On February 17, 2010, the claims by plaintiffs against one of the original defendants in
this lawsuit, Teledyne Continental Motors, Inc. (“TCM”), were transferred to the United States
1

District Court for the Southern District of Alabama (“the Alabama action”).

(DN 184.)

Plaintiffs’ theory of liability against TCM in the Alabama action appears to have been that a
defective magneto, including flanges, designed and manufactured by TCM and installed in the
Piper aircraft, was a substantial factor in the subject plane crash. On August 5, 2011, a jury
found for TCM on all counts. The judgment in favor of TCM was affirmed on appeal to the
United States Court of Appeals for the Eleventh Circuit. Meanwhile, the lawsuit in this Court
continued to move forward.
At this stage, only plaintiffs, intervenor plaintiffs,1 and JJA remain as parties, and trial
has been set for April 11, 2016. Both parties have filed a variety of motions in preparation for
that trial. The Motion to Exclude is one of those motions and is directed at Harvey Rosen, one of
plaintiffs’ damages experts.
II.

DISCUSSION
In the Motion to Exclude, JJA asks the Court to strike the expert report of Rosen because

it fails to comply with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. As a result of
these deficiencies, JJA contends that under Rule 37(c) Rosen should be prohibited from offering
testimony at trial. JJA also asks the Court strike Rosen’s report because it is not relevant and is
based on unreliable data. Plaintiffs, on the other hand, assert that Rosen has substantially
complied with Rule 26 of the Federal Rules of Civil Procedure and any failure to fully comply
was harmless; plaintiffs also assert that Rosen’s opinions are relevant and reliable as well. The
Court will address the parties’ contentions in more detail below.

1

An intervenor complaint was filed by Kentucky Associated General Contractors Self-Insurance Fund on April 28,
2008 (DN 79); another intervenor complaint was filed by Bridgefield Casualty Insurance Company on April 15,
2009 (DN 118).

2

A.

Rule 26 of the Federal Rules of Civil Procedure

Pursuant to Rule 26(a)(2)(B), an expert report must contain the following:
(i)

a complete statement of all opinions the witness will express and the basis and
reasons for them;

(ii)

the facts or data considered by the witness in forming them;

(iii)

any exhibits that will be used to summarize or support them;

(iv)

the witness's qualifications, including a list of all publications authored in the
previous 10 years;

(v)

a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and

(vi)

a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).
Rule 37(c)(1) sets forth the consequences for a party’s failure to comply with Rule 26(a).
Rule 37(c)(1) states, in pertinent part:
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or
is harmless. In addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
(A)
may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B)

may inform the jury of the party's failure; and

(C)
may impose other appropriate sanctions, including any of
the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37. “The exclusion of non-disclosed evidence is automatic and mandatory under
Rule 37(c)(1) unless non-disclosure was justified or harmless.”
Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004).
3

Dickenson v. Cardiac &

Plaintiffs disclosed Rosen as an expert on July 15, 2013. (See DN 316.) Rosen was
subsequently deposed by JJA in February 2014. (DN 423-1, p. 4.) Although in the brief
supporting the Motion to Exclude JJA asserts that Rosen’s expert disclosure was not
supplemented at all, it does appear that plaintiffs did provide some supplemental information on
March 24, 2014. (Compare DN 423-1, p. 6 [“Mr. Rosen never supplemented his report. He also
elected not to file a revised report when the Court re-set plaintiffs’ expert report disclosure
deadline.”] with DN 453, p. 3 [“Importantly, Mr. Rosen did not supplement his report to include
that information in March 2014, with his other supplement, or after the Court’s September 2014
Order.”]). Indeed, JJA provides as an exhibit the supplement to Rosen’s report. (See DN 453-1.)
Whether this was a calculated misstatement or an oversight, the Court does not know.
Regardless, the Court cautions JJA to be precise in its language. However, even with the March
2014 supplementation, JJA still contends that Rosen’s expert disclosure is deficient under Rule
26.
JJA notes that, in a September 30, 2014 memorandum opinion and order, the Court
ordered plaintiffs to serve reports from each expert witness they had already identified. The
Court specifically stated that “[e]ach report shall be revised as needed to make sure that it fully
complies with the requirements of Federal Rule of Civil Procedure 26, and plaintiffs are strongly
cautioned to err on the side of caution when evaluating compliance.” (DN 379, p. 2, emphasis in
original.) A motion to strike Rosen’s report was not directly before the Court when it issued its
September 30, 2014 memorandum opinion and order. The deficiencies in Rosen’s report were
not unknown to plaintiffs, however; they were raised by JJA in its motion to stay its expert
4

disclosure deadline, which was directly disposed of by the September 30, 2014 memorandum
opinion. It does not appear that plaintiffs’ supplemented the expert disclosure with respect to
Rosen after the September 30, 2014 order.
JJA asserts that Rosen’s report (and supplement) did not include a list of publications,
testimony given in the last four years, compensation information, or the facts and data
considered, and therefore he should be prohibited from testifying at trial pursuant to Rule 37.
The Court will address each category in turn.
1.

List of publications

JJA asserts that a complete listing of publications authored in the last ten years was not
included in Rosen’s expert disclosure: the most recent publication listed was from 2010 and
Rosen admitted at his deposition that he updated at least two articles after 2010. Plaintiffs
correctly state that Rosen testified at his deposition that he had no new publications since 2010,
only two articles that had been revised from earlier versions that had been disclosed. (See DN
435-1, p. 29.) While Rosen should have been more conscientious, the Court finds that the failure
to list the two revised articles was harmless in this instance.
2.

Trial or deposition testimony for the last four years

JJA states that, as part of the July 2013 disclosure, Rosen’s report listed partial names of
“Selected Cases” alongside various years. The last case listed was in 2008 – “Mound SuperFund
Real Estate Litigation.” (DN 423-2, p. 5.)

JJA identifies two additional cases that it claims

show that Rosen failed to make a complete disclosure: Rogge v. Estes Express Lines, No. 3:13cv-1227, 2014 U.S. Dist. LEXIS 159839, at *3-5 (N.D. Ohio Nov. 10, 2014),where a “Harvey
Rosen” was excluded from testifying, and Saks v. Riga, No. 101091, 2014-Ohio-4390, ¶¶ 4, 5, 19
5

(Ohio Ct. App. Nov. 6, 2014), where a “Harvey Rosen” apparently testified in a 2012 trial. Even
for the disclosed cases, JJA states that no case number or jurisdictional information was
provided.
Plaintiffs claim that the complete list of “federal” cases was inadvertently left out of
Rosen’s initial report. Plaintiffs also claim that JJA never brought the omission to the attention
of plaintiffs’ counsel in the seven months between Rosen’s expert disclosure and his February
2014 deposition. During that deposition, Rosen admitted that his curriculum vitae did not
include a complete list of his trial and deposition testimony for the last four years; Rosen stated
that he would provide that list. (DN 435-1, pp. 17-18.) In March 2014, plaintiffs provided JJA
what they claim was a “complete federal case list” for Rosen. (DN 435, p. 3.)
With respect to the Rogge case, JJA states, “Arguably, Mr. Rosen was not required to
include his testimony in Rogge in his March 2014 supplementary disclosure.” (DN 435, p. 5.)
JJA does not expressly state why; the Court assumes that this is because Rosen did not actually
testify at that trial. With respect to the Saks case, while it is not totally clear, it does appear that
it was referenced, albeit poorly, in the March 2014 supplement: while no case caption or party
names were listed, an entry makes reference to a case in “Cyuahoga [sic] County Court of
Common Pleas” that involved “Saks, Jeffrey.” (See DN 453-1, p. 25.)
Rosen’s expert disclosure insofar as it relates to trial and deposition testimony (DN 45,
pp. 10, 12-13, 15) is plagued with problems. The Court agrees with JJA that Rosen’s case list in
the March 2014 supplement provided by plaintiffs is deficient and virtually unusable.

After a

survey of the alleged “complete list” at DN 453-1, pp. 25-28, it is clear that Rosen did an
inadequate job of identifying cases in which he provided trial or deposition testimony for the last
6

four years, including for the Saks case.

Many of the case captions, case numbers, and

jurisdictional information are missing entirely or are incomplete.
“Rule 26 requires more than attempted compliance; it requires mandatory disclosure of
all deposition and trial testimony within the past four years, together with sufficient information
about where that testimony was given to enable the opposing party to gain access to it.” Ater ex
rel. Ater v. Follrod, No. 2:00-CV-934, 2004 WL 6042439, at *3 (S.D. Ohio Nov. 10, 2004). In
order to be useful, “this listing must include, at a minimum, the courts in which the testimony
occurred, the names of the parties and the case numbers, and must indicate whether the
testimony was given at deposition or at trial.” Id. at *1 (citing Coleman v. Dydula, 190 F.R.D.
316, 318 (W.D.N.Y.1999); Nguyen v. IBP, Inc., 162 F.R.D. 675, 682 (D.Kan.1995)).
The Court finds particularly disturbing Rosen’s failure to supplement his report with a
complete and useful list of trial or deposition testimony for the last four years, especially
considering the order entered in September 2014 directing plaintiffs to make expert disclosures
that fully comply with Rule 26. Plaintiffs claim that they offered to make Rosen available for a
follow-up deposition “so that Jewell could ask any questions it had about the fee schedule and
the federal case list.” (DN 435, p. 3.); see also Roberts ex rel. Johnson v. Galen of Virginia, Inc.,
325 F.3d 776, 782 (6th Cir. 2003) (“We agree with the circuits that have put the burden on the
potentially sanctioned party to prove harmlessness.”). Even if JJA had opted to re-depose Rosen
after receiving the supplemental trial and deposition testimony list from plaintiffs in March 2014,
it is questionable how productive any such deposition would have been considering the
deficiencies of that supplemental list.

7

The failure to supplement Rosen’s expert disclosure with a complete and useful list of
trial and deposition testimony for the last four years stands as an independent basis upon which
to prohibit him from testifying at trial. See, e.g., Wells v. Craig & Landreth Cars, Inc., et al.,
3:10-cv-376-CRS, 2012 WL 2064700, at *1 (W.D. Ky. June 7, 2012) (DN 113) (“The motion by
Craig and Landreth’s to strike Wells’ expert witness disclosures pertaining to Coker will be
granted. As Craig and Landreth point out, Wells’ purported expert witness disclosure of
September 6, 2011, did not contain a written report prepared by the witness, as required by Rule
26(a)(2)(B), containing, among other things, a statement of the opinions the witness will
express, the basis and reasons for the opinions, the facts or data considered by the witness, the
exhibits used to summarize or support the opinions.”). Moreover, for the reasons discussed
below, there is an additional basis for the exclusion of Rosen, namely that his opinions will not
help the jury to determine any fact in issue.
3.

Compensation information

JJA asserts that, in addition to the already-mentioned shortcomings, plaintiffs failed to
disclose information about Rosen’s compensation.

While it does not appear that Rosen’s

compensation information was included in his initial expert disclosure, his fee schedule and a
copy of his invoice to plaintiffs’ counsel was provided in the March 2014 supplement. JJA does
not seem to dispute this. While this information would have ideally been disclosed as part of
Rosen’s initial expert disclosure, Rosen’s compensation information was eventually disclosed.
Under these circumstances, and without more information, it appears that the initial failure to do
so was ultimately harmless.

8

4.

Facts and data considered

As the Court stated, Rosen will be prohibited from testifying at trial based on relevancy
grounds. Nonetheless, the Court is sufficiently bothered by the failure of Rosen to disclose the
facts and data he considered in determining the 2.25% growth rate, sometimes referred to by the
parties as an inflation factor, used in his reports that it bears mention here.
Rosen was retained by plaintiffs to calculate the actual cost and present value of the
amount of money that would be required to fund the life care plans created by another one of
plaintiffs’ experts, Jack Sink.

JJA argues that Rosen did not explain his calculations in

determining a lump sum value. JJA takes particular issue with Rosen’s failure to describe his
process for determining the 2.25% growth rate listed in his report. Specifically, the report states,
“All Future needs have been grown at 2.25% real & discounted at various real discount rates
(See Table 4) unless otherwise noted on table.” (DN 423-3, p. 4.; see also DN 423-4, p. 4 [“All
Future needs have been grown at 2.25% real & discounted at 0.00% real unless otherwise noted
on table.”]; DN 423-5, p. 4 [“All Future needs have been grown at 2.25% real & discounted at
0.00% real unless otherwise noted on table.”]; DN 423-6, p. 4 [“All Future needs have been
grown at 2.25% real & discounted at various real discount rates (See Table 5) unless otherwise
noted on table.”].) JJA claims that Rosen’s report is deficient because it does not disclose the
process used and data relied upon to calculate the inflation multiplier. JJA asserts that this
failure is significant because a poorly derived inflation factor will result in inaccurate total
figures. JJA has pointed to no case specifically holding that an expert report must be excluded
on the basis the expert failed to disclose the data upon which he relied in determining the
inflation rate used.
9

Plaintiffs respond that Rosen identified the “specific inflation index” he used for each
category of needs and that there is no requirement that Rosen actually show his arithmetic when
he has sufficiently disclosed the data and the process upon which he relied to make his
conclusions.
In its reply, JJA argues that plaintiffs purposely miss the point. The work-life estimate
and life expectancy figures are plucked from tables produced by the federal government – and
are not at issue here. The issue is that Rosen failed to reveal the sources he used to calculate the
proposed inflation rate utilized in his report. JJA argues that that the only information regarding
how Rosen calculated his proposed inflation number was offered at his deposition.
On whole, the Court finds both parties’ arguments lacking in both detail and accuracy,
especially when describing the 2.25% growth rate as an inflation rate. At his deposition, Rosen
described the 2.25% real rate as a number that has been inflation adjusted, that is, the amount
that medical care costs have exceeded the average rate of inflation. (DN 435-1, pp. 54, 56.) The
Court agrees with JJA that Rosen did not include in his report any facts or data that he relied
upon in determining the 2.25% growth rate, including what inflation rate was used or where the
rate was obtained. JJA states that it “was compelled to depose Mr. Rosen simply so it could
attempt to ascertain his method of calculation—a method that should have been disclosed
pursuant to Rule 26(a)(2)(B)(ii).” (DN 423-1, p. 9.) Based on this statement, it is not clear
whether JJA contends that the facts or data relied upon by Rosen were not disclosed in his report
or not disclosed at all, even at his deposition.

The Court certainly finds Rosen’s deposition

testimony confusing in that regard. First Rosen testifies that he relied on data from the Bureau of

10

Labor Statistics for the 2.25% rate. (DN 435-1, p. 56.) Rosen then testifies that this number is
an average. (Id. at 57.) Rosen further testifies:
Q:
So what I'm trying to find out, again, is, you know, did
you take that 2.25 percent from an actual chart and you found
2.25 percent in an actual chart, did you circle it, or did you go
to data and look at it and, as you said, took your experience as
an economist and said, "I think that's what the number should
be"?
Rosen: It would be the latter, not the former.
(DN 435-1, pp. 58-59.) As a result, the Court is still uncertain exactly how Rosen obtained the
2.25% rate, a rate that could affect his final calculations.
An expert may expound on his or her opinions during a deposition. Indeed, “The rule
contemplates that the expert will supplement, elaborate upon, explain and subject himself to
cross-examination upon his report.” Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203
(6th Cir. 2006); see also CNA Ins. Co. v. Hyundai Merch. Marine, Co., No. 3:07-CV-0141-CRS,
2011 WL 5181464, at *2 (W.D. Ky. Oct. 31, 2011) (“Munsch listed in his expert report and
discussed in his deposition the sources he consulted in forming his opinions . . . .”); Burke v. UHaul Int'l, Inc., Civ. No. 3:03CV32 , 2006 WL 3760317, at *3 (W.D. Ky. Dec. 15, 2006) (“As a
general rule, experts will be allowed to testify concerning information, reports and observations
contained in their Rule 26 disclosure or specifically referenced in their depositions.”). On the
other hand, deposition testimony of an expert will not, as a general rule, cure a deficient expert
report. Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008) (“Rule 26(a)(2) does not
allow parties to cure deficient expert reports by supplementing them with later deposition
testimony.”); see also Brown v. Teledyne Cont’l Motors, Inc., Case No. 1:06-cv-26, 2007 WL
838918 (N.D. Ohio March 15, 2007) (“Rosen’s proposed testimony suffers from a more
11

significant defect. Rosen uses a figure of $12 per hour to establish the value of domestic
services. The statistical information underlying that estimate was not provided to Teledyne
along with Rosen’s expert report in accordance with Rule 26 of the Federal Rules of Civil
Procedure. The fact that the Browns have attached an affidavit from Rosen naming evidence,
without actually providing it, fails to meet the strict obligations of Rule 26.”). In light of the
exclusion of Rosen on other grounds, the Court does not need to resolve the issue of whether
Rosen simply expounded on the opinions contained in his report at his deposition, or if his report
was, in fact, deficient under Rule 26. Cf. Foraker v. Schauer, No. CIV.04CV00363EWNOES,
2005 WL 6000493, at *8 (D. Colo. Sept. 8, 2005) (“First, the party who seeks to establish the
present value of a claim for future loss must present “competent evidence” of the rates for
discount and inflation.”).
B.

JJA’s Attempt to Exclude Rosen’s Testimony on Relevancy and Reliability
Grounds

JJA also moves to exclude Rosen’s expert testimony on relevancy and reliability grounds.
Plaintiffs retained Rosen to examine Jack Sink’s life plans and determine the present value of the
money that would be necessary to fund plaintiffs’ future care needs.

In doing so, Rosen

purportedly used his economic expertise to determine expected inflation rates, discount rates, and
health care cost growth and then applied these metrics to the numbers in Sink’s reports in order
to estimate the present value of future care needs.

JJA argues that Rosen’s opinions are

inadmissible under Federal Rules of Evidence 403, 702, and 703. For the reasons discussed
below, the Court finds that Rosen’s proffered testimony fails Rule 702 and Daubert’s relevance
prong. His testimony is, therefore, inadmissible at trial.

12

1.

Standard for Expert Testimony

Federal Rule of Evidence 702, which governs the admission of expert testimony,
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.
Fed. R. Evid. 702. The Supreme Court has interpreted this rule to require trial judges to “ensure
that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). These prerequisites apply to
not only “‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting
Fed. R. Evid. 702). Thus, “Daubert attempts to strike a balance between a liberal admissibility
standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science’
on the other.” Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir. 2009).
Although there is “no definitive checklist or test” to strike this balance, relevant factors
include: (1) whether a theory or technique “can be (and has been) tested;” (2) whether a “theory
or technique has been subjected to peer review and publication;” (3) the “known or potential rate
of error;” and (4) whether the theory or technique is generally accepted. Daubert, 509 U.S. at
593-94. These factors are not exhaustive and the inquiry is “a flexible one,” Pluck v. BP Oil
13

Pipeline Co., 640 F.3d 671, 677 (6th Cir. 2011) (citations omitted), for district courts must be
mindful that “the gatekeeping inquiry must be ‘tied to the facts of a particular case.’” Kumho,
526 U.S. at 150 (quoting Daubert, 509 U.S. at 591) (internal quotation marks omitted). Experts
“need not testify to what is known to a certainty,” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388
(6th Cir. 2000) (citing Daubert, 509 U.S. at 590) (internal quotation marks omitted), may state
inferences derived from the scientific method, Daubert, 509 U.S. at 590, and may make
deductive conclusions based on physical observations. Kumho, 526 U.S. at 156; Mackenzie v.
JLG Indus., Inc., No. 3:13-CV-01046, 2014 WL 7375546, at *8 (W.D. Ky. Dec. 29, 2014). So
long as the proffered testimony “is properly grounded, well-reasoned, and not speculative,”
district courts should admit it, for “the rejection of expert testimony is the exception rather than
the rule.” W. Tenn. Chapter of Associated Builders & Contractors, Inc. v. City of Memphis, 300
F. Supp. 2d 600, 602 (W.D. Tenn. 2004) (citations omitted).
District courts must also be careful not to weigh one party’s expert testimony against the
other party’s expert testimony, Jahn, 233 F.3d at 391, as the focus “must be solely on principles
and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. 595. When a
trial judge has doubts about the strength of proffered testimony, exclusion is not the remedy, but
rather “[v]igorous 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.” Id. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)). Finally, “it
is the proponent of the testimony that must establish its admissibility by a preponderance of
proof.” Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert,
509 U.S. at 592 n.10).
14

2.

Analysis

Rosen cannot testify in this case because his opinions are based on facts and data that will
not be in the record. Experts may only testify if their “knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue,” and they have “reliably applied the
principles and methods to the facts of the case.” Fed. R. Evid. 702(a), (d) (emphasis added).
The Supreme Court has made clear that this relevance prong is one of “fit” in that expert
testimony must be “‘sufficiently tied to the facts of the case that it will aid the jury in resolving a
factual dispute.’” Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224,
1242 (3d Cir. 1985)). Applying these principles to Rosen’s proffered testimony, it is clear that
his testimony does not “fit” with this case because his opinions are based on life plans that
plaintiffs have no intention of trying to introduce at trial.
Sink initially prepared life plans for Crouch and Hudson for the 2011 Alabama litigation
but then updated those reports in 2013 to account for the intervening years. Although plaintiffs
intend to have Sink testify to the opinions laid out in his 2013 reports, Rosen’s estimates are
based on the services and prices listed in Sink’s 2010 reports. Therefore, although the present
value of Sink’s 2013 reports is “a fact in issue in this case,” Rosen’s opinions are irrelevant to
this issue and will not assist the jury. Fed. R. Evid. 702(a). Assuming, arguendo, that Rosen has
“reliably applied [his] principles and methods,” he did not apply them “to the facts of the case;”
rather, he applied them to the 2010 reports, which will never be before the jury. Id. at 702(d).
The court finds no merit in plaintiffs’ attempts to cure this defect.
Plaintiffs contend that Rosen’s opinions are admissible because there “is more than one
way to account for a change in price over time,” and Rosen picked one of the two permissible

15

methods.2 They contend that Sink could have redone his 2013 report with 2013 prices, and then
Rosen could have estimated the present value of plaintiffs’ future needs.3 Alternatively, they
argue that Rosen could have used, and actually did use, actual inflation to bring the outdated
prices up to 2013 dollars.4 This alternative argument, however, is misleading for several reasons.
First, Rosen did not apply any actual inflation data to the 2010 report numbers. His
report employed a growth rate of 2.25% above inflation for medical care costs, and he testified
during his deposition that this number was an average rather than an actual inflation rate.5
Equally problematic is the fact that Sink’s 2010 report employed 2010 cost data, but, due to a
clerical error, his 2013 report employed 2009 price data. Therefore, assuming it was permissible
for Rosen to correct the numbers using estimated or actual inflation, his base year for prices
(2010) is different from the base year that Sink will testify to at trial (2009). Furthermore, a
comparison of Sink’s 2010 and 2013 reports shows that the choice of which year’s numbers to
rely on is far from academic—practically all of the prices are different. These issues, however
troubling, are not even the most egregious. The Court has examined Sink’s 2010 and 2013
reports and conducted a line-by-line review of the goods and services that Sink believes Crouch
and Hudson will need for their care. From this review, it is clear that, in addition to different
prices, the required goods and services and the quantities in which they would be needed are
different from report to report.
Page nine of the reports on Crouch lists “Projected Evaluations” and the “Frequency of
Treatments.” In each report, Sink believes Crouch will need to see a psychiatrist, general

2

DN 435, 9.
Id.
4
Id.
5
Rosen Deposition, Pg. 56, Ln. 2-5.
3

16

practitioner, urologist, pain medication specialist, and neurosurgeon each year. The problem
arises because in the 2010 report,6 Sink has Crouch seeing a psychiatrist one to two times per
year, a urologist once a year, and a pain medication specialist twice a year. In the 2013 report,7
however, Sink has Crouch seeing a psychiatrist two to three times per year, a urologist one to
two times per year, and a pain medication specialist four times per year. If they testify at trial,
therefore, Sink and Rosen will be on completely different wavelengths: Sink will be testifying
that Crouch needs to see a pain specialist four times a year, and Rosen will be testifying to the
present value of two visits per year. Every page of the 2010 and 2013 reports is replete with
similar problems.
Page ten of the 2010 report has Crouch8 going to physical therapy six times per year, but
the 2013 report has him going twice a week. Likewise, the 2010 report has Crouch getting a gym
membership and going to an inpatient rehab program. These services are not part of the 2013
report. Additionally, page eleven of the 2010 report includes a table for “Projected Ancillary
Services,” a table that does not appear in the 2013 report.
Although the “Projected Medical Care” tables (pages 12 & 12a of the 2010 report and
pages 11 & 11a of the 2013 report) contain many similarities, they also contain many
differences. The 2010 table has Crouch receiving “KUB,” but this service is absent in the 2013
report. The 2013 report also includes “pneumonia vaccine” and “video urodynamics,” two items
absent from the 2010 report. Moving on, the “Aids for Independent Function” table of the 2010
report contains a “portable tub bench,” “portable bedside commode,” “adjustable bed (dual
6

DN 453-4.
DN 424-2.
8
Although both the Crouch and Hudson reports from 2010 and 2013 contain different goods and services and
frequency of treatment numbers, for simplicity’s sake the Court will only discuss the Crouch reports. Sink’s 2010
report on Hudson can be found at DN 453-5 and his 2013 report on Hudson at DN 424-3.
7

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king),” and “mattress (dual king).” These items are not listed in the same table found in the 2013
report.
In 2010, Sink had Crouch taking, among other things, Zetia and Savella, but the same
“Medication/Supply Needs” table in the 2013 report does not list these drugs. Instead, the 2013
report has Crouch taking, among other things, hydrocodone, zovirax, acyoloir, and “methodone”
[sic]. In 2010, as “Therapeutic Equipment Needs,” Sink has Crouch needing a “stander” and
“accessible gym.” These items are not listed in the same table from the 2013 report.
In 2010, Sink had Crouch needing to travel from Mayfield to Louisville one to two times
per year, but in 2013, only has him making this trip once a year. In the 2013 report, Sink has
Crouch making a one-time purchase of a trailer with ramp, a purchase not accounted for in the
2010 report. Finally, the two reports contain numerous differences for “attendant,” found in the
“Home Care” table.
This review makes clear that the 2010 and 2013 reports do not merely contain different
pricing numbers: they are more akin to apples and oranges. If Rosen were permitted to testify at
trial, his opinions would be based on numerous services that Sink would not be asserting that
Crouch needs. Likewise, Sink would be testifying that Crouch needed many new services and
medications for which Rosen would provide no opinion as to cost.
This is not a situation in which the plaintiff seeks to introduce certain facts, the defendant
seeks to introduce other facts, and the parties disagree about which facts should be inputs into a
methodology. If it were, such a dispute would be a proper factual dispute for the jury. KCH
Servs., Inc. v. Vanaire, Inc., No. 05-777-C, 2010 WL 1416672, at *2 (W.D. Ky. March 31,
2010). Rather, the facts on which Rosen bases his opinion will never be introduced into
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evidence. The present value of the goods and services listed in Sink’s 2013 report is a fact that is
in dispute, but Rosen has no testimony that will help the jury in making this determination. Fed.
R. Evid. 702. His proffered testimony is therefore irrelevant under Daubert’s relevance prong.
As a final matter, the Court notes that even if plaintiffs could somehow remedy this error,
the Court has concluded in a separate opinion that Sink’s July 2013 expert reports with respect to
Crouch and Hudson are stricken and that he is prohibited from testifying at trial. Thus, any way
this issue is parsed, Rosen’s testimony would be irrelevant.
III.

CONCLUSION
For the foregoing reasons, John Jewell Aircraft, Inc.’s Motion to Exclude (DN 423) is

GRANTED.

January 12, 2016

Colin Lindsay, MagistrateJudge
United States District Court
cc: Counsel of record

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