Goodie v. ExxonMobil Oil Corporation et al

Filing 86

ORDER granting in part and denying in part as, stated herein 56 Motion in Limine to exclude the testimony of plaintiffs proposed expert witness, Dr. Kenneth McCoin and 60 Motion in Limine to exclude the testimony of Dr. McCoin. Signed by Judge Lance M Africk on 4/17/2014. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JONATHAN GOODIE

CIVIL ACTION

VERSUS

No. 13-5228

EXXONMOBILE OIL CORPORATION
ET AL.

SECTION I

ORDER
Before the Court is a motion1 by defendant, West Coast Logistics, LLC (“WCL”), to exclude
the testimony of plaintiff’s proposed expert witness, Dr. Kenneth McCoin, pursuant to Rule 702 of
the Federal Rules of Evidence. Plaintiff has filed an opposition,2 to which WCL has replied.3 WCL’s
co-defendant, ExxonMobile Oil Corporation, has also filed a motion4 to exclude the testimony of
Dr. McCoin. ExxonMobil Oil Corporation’s motion adopts WCL’s motion in its entirety.5
WCL argues that Dr. McCoin’s testimony is inadmissible because he assumes certain values
relative to plaintiff’s future hourly wage and fringe benefit rate and because he includes the cost of
household services in his calculations without evidence that plaintiff’s ability to perform such
services is impaired.6

1

R. Doc. No. 56.
R. Doc. No. 65.
3
R. Doc. No. 75.
4
R. Doc. No. 60.
5
R. Doc. No. 60-1, at 1.
6
R. Doc. No. 56-1, at 1, 6. WCL’s motion does not challenge Dr. McCoin’s qualifications, and
the Court defers ruling on such qualifications until trial.
2

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I. Future Hourly Rate & Fringe Benefits
WCL argues that Dr. McCoin improperly assumes a future hourly wage of $8.62 and a fringe
benefit rate equal to the national average.7
Plaintiff appears to concede that the hourly wage and fringe benefit rate used by Dr. McCoin
are not a reflection of the particular circumstances of this case, explaining that the $8.62 figure is
purely “a hypothetical number for comparative purposes to show how to subtract post-injury earning
capacity from the pre-injury earning capacity.”8 WCL responds that the use of hypothetical figures
demonstrates that Dr. McCoin’s report is not grounded in the facts of this case.9
The Court agrees with WCL that Dr. McCoin’s hypothetical figures may not be presented
to the jury as evidence of plaintiff’s hourly wage or fringe benefit rate. However, the 1972 Advisory
Committee Notes to Rule 702 explain that Rule 702 “recognizes that an expert on the stand may give
a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of
fact to apply them to the facts.” The 2000 Advisory Committee Notes similarly state, “[I]t might also
be important in some cases for an expert to educate the factfinder about general principles, without
ever attempting to apply these principles to the specific facts of the case. . . . For this kind of
generalized testimony, Rule 702 simply requires that: (1) the expert be qualified; (2) the testimony
address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be
reliable; and (4) the testimony <fit’ the facts of the case.” See also Landry v. Offshore Logistics, Inc.,
544 F.2d 757, 760-62 (1977).

7

R. Doc. No. 56-1, at 4, 8.
R. Doc. No. 65, at 1.
9
R. Doc. No. 70-2, at 3.
8

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Dr. McCoin’s qualifications are not presently at issue, and no one suggests that expert
testimony as to plaintiff’s future earning capacity would not assist the jury. Moreover, the reliability
of such testimony and its “fit” to the facts of the case may be explored through cross-examination.
See id. at 762. Accordingly, Dr. McCoin may testify as to the general principles applicable to future
wage and fringe benefit calculations, leaving to the jury the task of applying these principles to the
facts presented through other evidence. Dr. McCoin may not use hypothetical numbers other than
those set forth in his report, and he may not testify as to the applicability of such numbers to
plaintiff. Dr. McCoin may not testify directly or indirectly as to the actual value of plaintiff’s future
hourly wage or fringe benefit rate.
II. Household Services
WCL argues that there is no basis by which to conclude that plaintiff’s injuries affected his
ability to perform household services.10 WCL further argues, quoting Davis v. Foremost Dairies, 58
So. 3d 977, 993 (La. App. 2 Cir. 2011), that Louisiana cases “awarding past and future lost
household services limit[] recovery to situations where substitute housekeepers [are] actually
utilized or [will] be necessary,’” as opposed to cases where a plaintiff is unable to perform
household services but does not pay and will not pay for such services.11 Plaintiff contends that
defendant’s argument lacks merit, as reflected by Webb v. Ensco Marine, 135 F. Supp. 2d 756 (E.D.
Tex. 2001).12 Webb, however, is consistent with the general rule set forth in Davis because the
plaintiff in Webb had “to hire paid help to perform normal household maintenance.” Id. at 771.

10

R. Doc. No. 56-1, at 6.
R. Doc. No. 56-1, at 7.
12
R. Doc. No. 65, at 2.
11

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For the reasons discussed above, Dr. McCoin may testify as to general principles for
calculating the costs of such services. However, he may only do so if plaintiff produces admissible
evidence that he has paid or will pay for such services in the future. Dr. McCoin may not testify that
plaintiff requires household services.
Accordingly,
IT IS ORDERED that the motions are GRANTED IN PART consistent with that stated
above.
IT IS FURTHER ORDERED that the motions are DENIED in all other respects.

New Orleans, Louisiana, April 17, 2014.
_____________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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