Blackman v. Bello et al

Filing 50

RULING denying 40 Motion in Limine to Exclude Trial Testimony of WallaceStanfill and Shael N. Wolfson, Ph.D. Signed by Judge Shelly D. Dick on 12/20/2016. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

EDWARD S. BLACKMAN

CIVIL ACTION

VERSUS

15-368-SDD-RLB

JOSE A. BELLO, ET AL.

RULING
Before the Court is Defendants, Jose A. Bello, UFL, Inc. d/b/a United Freight
Logistics (hereinafter “UFL”), and New York Marine and General Insurance Company’s
(hereinafter “New York Marine”) Motion in Limine to Exclude Trial Testimony of Wallace
Stanfill and Shael N. Wolfson, Ph.D.1 The Motion is opposed.2
This is a personal injury suit arising out of a motor vehicle accident. In support of
his diminished earning capacity claims, Plaintiff retained Wallace Stanfill, a certified
Vocational Rehabilitation Counselor, and Shael N. Wolfson, Ph.D., an economist to
provide opinion testimony.
Defendants do not challenge the qualifications of either Mr. Stanfill or Dr. Wolfson.
Rather, Defendants move to exclude Stanfill on the grounds that his opinions are
unreliable. Defendants further argue that if Stanfill’s opinions are excluded on the grounds
of reliability, Dr. Wolfson’s loss calculations which are based upon Stanfill’s future
earnings opinions are likewise unreliable and, thus, must be excluded.
As an initial matter, the Court finds that Wallace Stanfill and Dr. Shael Wolfson are

1
2

Rec. Doc. 40.
Rec. Doc. 46.

qualified by knowledge, skill, experience, training, and education to give opinion testimony
in their respective fields.
The Court rejects the Defendants’ reliability challenge and will DENY the Motion
in Limine3 for the following reasons. It is undisputed that, at the time of the accident, the
Plaintiff was employed by Toshiba International Corporation as a Shipping/Receiving
Specialist. Based on the job’s DOT 4 classification, 5 the Plaintiff’s account of his job
duties, and a Toshiba job description,6 Stanfill found that the Plaintiff’s past employment
required him to function at the Medium to Heavy levels of physical exertion.7 It is also
undisputed that Stanfill performed a vocational assessment on the Plaintiff, reviewed the
Plaintiff’s medical records, and reviewed some past earnings records, as well.
Defendants argue that Stanfill’s opinions are the product of unsubstantiated
speculation and subjective beliefs. One of the foundational assumptions for Stanfill’s
future earnings opinions is the Plaintiff’s physical limitations and restrictions. Defendants
argue “there was no mention of any physical limitations of the Plaintiff identified by
Plaintiff’s treating physicians”.8 Practically speaking, it is premature for medical providers
to comment on limitations and restrictions in a case such as this where the Plaintiff is a
lumbar spine surgical candidate. If Stanfill’s opinions are, as Defendants argue, “gleaned
solely from the Plaintiff’s self-serving representations”,9 this can be challenged on cross
examination at trial. Likewise, Stanfill’s assumption that the Plaintiff’s continued

3

Rec. Doc. 40.
Dictionary of Occupational Titles. UNITED STATES DEPARTMENT OF LABOR, (4th ed. 1991).
5
Rec. Doc. 40-3, DOT No. 222.387-050, Medium, SVP-5.
6
which the Defendants characterize as an “unofficial job description”. Rec. Doc. 40-1.
7
Rec. Doc. 40-3. “[Plaintiff] has worked in primarily warehousing and shipping/receiving related
occupations for most of his young life, performing tasks requiring the ability to function at the Medium to
Heavy levels of physical exertion.”
8
Rec. Doc. 40-1.
9
Id.
4

employment with Toshiba is “due to informal special accommodations by a sympathetic
supervisor”10 can likewise be challenged on cross examination.
Finally, Defendants argue that Stanfill’s diminished earning capacity opinions are
based, in part, upon erroneous assumptions regarding the nature of the Plaintiff’s past
wages. Defendants argue that Stanfill’s opinions are unreliable because his “assessment
is based upon the Plaintiff’s past earnings inclusive of overtime.”11 Again, the efficacy of
the basis used for the Plaintiff’s earning capacity can be challenged on crossexamination.

“[T]he trial court's role as gatekeeper is not intended to serve as a

replacement for the adversary system.”12 The bases of Stanfill’s opinions, and thus the
soundness or reliability of his conclusions, can be adequately challenged on cross
examination.
Defendant urges exclusion of Wolfson’s future wage loss opinions arguing that,
although the calculations “may be scientifically precise”, they are “simply not accurate”
because derived from Stanfill’s “flawed methodology”.13 For the same reasons set forth
above, Wolfson’s opinion can be adequately tested on cross-examination.
The Defendants Motion in Limine14 is DENIED.
Signed in Baton Rouge, Louisiana on December 20, 2016.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

10

Rec. Doc. 40-1.
Id.
12
U.S. v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996).
13
Rec. Doc. 47.
14
Rec. Doc. 40.
11