HOWARD v. DEMO SALVAGE

Filing 55

ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY denying 29 Motion to Exclude By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MELANIE HOWARD
Plaintiff,
v.
DEMO SALVAGE
Defendant.

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1:18-cv-00150-JAW

ORDER DENYING PLAINTIFF’S MOTION TO EXCLUDE EXPERT
TESTIMONY
A personal injury plaintiff filed a Daubert 1 motion to exclude the proposed
testimony of the defendant’s vocational expert. The Court denies the motion because
it finds the expert’s proffered testimony sufficiently reliable to survive the Daubert
challenge and it concludes that any asserted deficiencies in the expert’s testimony
may be addressed through proper objections or cross-examination.
I.

BACKGROUND
A.

Procedural History

On April 5, 2018, Ms. Howard filed a complaint against Demo Salvage
asserting claims of negligence and vicarious liability. Compl. (ECF No. 1). On May
25, 2018, Demo Salvage filed an answer, denying both claims. Answer (ECF No. 6).
With jury selection scheduled for February 5, 2019 and trial set to begin on February
25, 2019, on January 4, 2019, Ms. Howard filed a motion to exclude the proposed

1

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

testimony of one of Demo Salvage’s expert witnesses, Edmond Provder. Pl.’s Mot. to
Exclude Expert Test. of Edmond Provder (ECF No. 29) (Pl.’s Mot.). On January 18,
2019, Demo Salvage responded to Ms. Howard’s motion to exclude Mr. Provder’s
proposed testimony. Def.’s Opp’n to Pl.’s Mot. to Exclude Expert Test. of Edmond
Provder (ECF No. 46) (Def.’s Opp’n).
B.

Demo Salvage’s Expert
1.

Demo Salvage’s Expert Designation of Edmond Provder

On November 20, 2018, Demo Salvage made a supplemental expert
designation of Mr. Provder as a “vocational, rehabilitation, and lifecare planning
expert.” Def.’s Opp’n, Attach. 1, Def.’s Suppl. Designation of Experts at 1 (Def.’s Expert
Designation); Pl.’s Mot., Attach. 4 at 1. Mr. Provder holds a Bachelor of Science
degree and a Master of Education degree in rehabilitation counseling from
Pennsylvania State University and has received doctoral credit hours in
rehabilitation counseling from New York University and post-graduate credit hours
from the University of Florida’s Intelicus Life Care Planning Program for
catastrophic case management. Def.’s Opp’n Attach. 1, Professional Qualifications of
Edmond A. Provder at 20. For the past thirty-seven years, Occupational Assessment
Services has employed Mr. Provder as a vocational expert/life care planner. Id. Mr.
Provder has also been employed as a vocational consultant for Social Security
Disability hearings and a supervisor of vocational facilities at Mount Sinai Hospital.
Id.

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According to Demo Salvage, Mr. Provder plans to “opine on Ms. Howard’s
employability, transferable skills learned from past occupations, and earning
capacity in the local labor market, as well as to make a determination as to the
feasibility of her receiving vocational rehabilitation services.”

Def.’s Expert

Designation at 1. In Mr. Provder’s opinion, Ms. Howard “can be employed as a
Pipefitter and Pipefitter Helper . . . [and] she has the ability to access the labor
market and can perform jobs requiring Sedentary, Light, Medium, and Heavy
Physical demands which are within her vocational capacity.” Id.
2.

Edmond Provder’s Expert Report

On October 17, 2018, Mr. Provder prepared a report on Ms. Howard’s
employability and earning capacity. Def.’s Opp’n, Attach. 2, Edmond Provder’s Expert
Report, at 1 (Provder’s Report). 2 Mr. Provder’s methodology consisted of six parts: (1)
“reviewing the deposition and medical documents, as well as other documents that
describes the evaluee’s condition;” (2) performing a vocational analysis of Ms.
Howard’s past work history and classifying her work history using the United States
Department of Labor’s Dictionary of Occupational Titles and “O*Net” to determine
the physical demands, skill level, “Specific Vocational Preparation (SVP),” and “the
General Educational Development (GED) of Ms. Howard’s employment” to ascertain
Ms. Howard’s pre-injury vocational capacity; (3) use of the “Vocational Diagnosis and
Assessment of Residual Employability (VDARE) process” to determine Ms. Howard’s

The pagination of the report as filed in the ECF system differs from the pagination of Mr.
Provder’s report. The Court uses the pagination in the Provder Report.

2

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aptitudes, skills, and skill level in relation to the transferability of those skills to other
jobs within her vocational capacity; (4) conducting “[a] Labor Market Access (LMA)
analysis . . . to determine Ms. Howard’s ability to enter the labor market given her
skill and vocational capacity;” (5) formulating an opinion based on a review of all the
materials “as to Ms. Howards post-injury vocational capacity, employability, earning
capacity, and the feasibility of her receiving vocational rehabilitation services;” (6) if
Ms. Howard is determined to be employable, analyzing labor market statistics or
private labor studies to “determine whether jobs exist that Ms. Howard can perform
within her vocational capacity and the current earnings of these occupations.” Id. at
2-3. In his report, Mr. Provder stated that he reviewed various hospital records,
physician records, diagnostic records, and legal records. Id. at 4-7.
In his October 17, 2018 report, Mr. Provder expressed the opinion that Ms.
Howard “can be employed as a Pipefitter and Pipefitter Helper.” Id. at 22. He opined
that she “could be competitively placed in the job market on a full-time, competitive
basis.” Id. He concluded that she “is able to transfer her skills to such Sedentary
and Light semi-skilled occupations as Information Clerk, Order Clerk, or Parts Sale
Clerk.” Id. at 23. He listed nine semi-skilled occupations with annual salary ranges
from a low of $24,292 to a high of $46,190 that he concluded Ms. Howard “had the
vocational capacity to perform.” Id. He wrote that in his opinion, as a vocational
expert, Ms. Howard “could perform these occupations on a sustained, full-time,
regular, competitive basis.” Id. (emphasis in report). He stated that “Ms. Howard
has sustained no loss of earnings due to her injuries” and that her “ability to replace

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her earnings is dependent on her motivation to remain employed.” Id.
II.

POSITIONS OF THE PARTIES
A.

Melanie Howard’s Memorandum

Melanie Howard moves to exclude Mr. Provder’s expected testimony on two
bases: (1) his testimony is not sufficiently reliable to be admissible; and (2) he reaches
conclusions beyond his expertise. Pl.’s Mot. at 1. Ms. Howard contends that Mr.
Provder’s expected testimony is not reliable because he employed a flawed
methodology to reach his conclusions. Id. at 4, 7. Ms. Howard points out that Mr.
Provder wrote in his report that “a review is made of all of the materials and an
opinion is formulated as to Ms. Howard’s post-injury vocational rehabilitation
services.” Id. at 4 (quoting Provder Report at 3). But Ms. Howard says that Mr.
Provder did not review all the materials available to him, such as Ms. Howard’s
experts’ depositions, and that he failed to conduct an interview of Ms. Howard. Id.
at 5. In Ms. Howard’s view, Mr. Howard “violated his own methodology and that of
any reasonable expert by failing to review information that would have helped to
inform his opinions, which he agreed would have been the better practice.” Id. at 5.
Considering this incomplete review, Ms. Howard claims Mr. Provder had an
inadequate foundation for his opinions. Id. at 7.
Ms. Howard also argues that Mr. Provder exceeded the scope of his expertise
because he opined that he did not believe Ms. Howard’s psychological condition
(PTSD) had a lot of impact on her ability to work. Id. at 5-7. Ms. Howard notes that
two of her expert witnesses, Dr. Lubit, a psychiatrist, and Nickie Cole, Ms. Howard’s

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PTSD therapist, directly disagree with Mr. Provder. Id. Ms. Howard says Mr.
Provder “cherry picks and then misinterprets a single phrase from the final
paragraph of Dr. Lubit’s report . . . as support for his opinion that [Ms. Howard] could
work, if only she were motivated to.” Id. at 5. Ms. Howard asserts “[Mr.] Provder is
grasping at straws. He is substituting his own psychological opinion for those of the
true psychological experts.” Id. at 6. Ms. Howard claims Mr. Provder “attempts to
qualify himself [as a mental health expert] by saying he has worked with people with
PTSD who have returned to work . . ..” Id. at 7.
Ms. Howard contends that Mr. Provder’s lack of foundation by failing to engage
in appropriate methodology is “inextricably entwined” with his giving opinions
outside his expertise. Id. at 8. Lastly, Ms. Howard states, “[e]ven if the Court were
inclined to allow the foundation [challenge to Mr. Provder’s testimony] . . . to be the
subject of vigorous cross-examination rather than exclusion,” Mr. Provder’s testimony
should nevertheless be excluded in its entirety because Mr. Provder cannot give his
opinion about her employability without stating his opinion as to her psychological
state. Id.
B.

Demo Salvage’s Opposition Memorandum

Demo Salvage asserts Ms. Howard’s motion is premised on whether Mr.
Provder’s proffered testimony is based on a reliable scientific foundation. Def.’s Opp’n
at 4. 3 Demo Salvage argues that Ms. Howard “takes pains to find fault in Mr.
Provder’s methodology when there is none.” Id. at 5. Demo Salvage contends that
The Court refers to the ECF numbering for pincites because Demo Salvage’s opposition
memorandum does not include pagination.
3

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Ms. Howard’s argument that Mr. Provder did not review “all the materials” is
overblown considering that Mr. Provder reviewed all of the Ms. Howard’s “expert
reports prior to generating his own, and prior to his deposition . . . [and that Ms.
Howard’s] expert witnesses testified in conformation with their previously generated
reports.” Id. Demo Salvage says that Ms. Howard’s contention that Mr. Provder
violated his own methodology by not reviewing her expert witnesses’ depositions is
“specious.” Id. Demo Salvage highlights a portion of Ms. Howard’s deposition in
which Ms. Howard states, “I was . . . trying to get them . . . to fire me []” to undercut
Ms. Howard’s claim that Mr. Provder’s opinion as to her motivation to work is outside
his area of expertise because “[n]o specific expertise or training is required to include
this testimony in one of Ms. Howard’s vocational prognosis or her motivation to work
in an accommodative job.” Id. at 5-6.
III.

DISCUSSION
A.

Legal Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony:
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.

In Daubert, the United States Supreme Court directed a

“gatekeeping role for the judge,” to determine whether Rule 702’s requirements are
met in any given case. 509 U.S. at 597. A judge exercising this role must “ensure
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that an expert’s testimony ‘both rests on a reliable foundation and is relevant to the
task at hand.’” United States v. Vargas, 471 F.3d 255, 261 (1st Cir. 2006) (quoting
Daubert, 509 U.S. at 597); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
147-49 (1999) (extending Daubert’s holding to technical and other specialized expert
testimony). The inquiry under Rule 702 is a “flexible one.” Vargas, 471 F.3d at 261
(quoting Daubert, 509 U.S. at 594). “Rule 702 has been interpreted liberally in favor
of the admission of expert testimony.” Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st
Cir. 2006).
B.

Analysis
1.

Methodology

“Daubert does not require that a party who proffers expert testimony carry the
burden of proving . . . the expert's assessment of the situation is correct. As long as
an expert's scientific testimony rests upon ‘good grounds, based on what is known . .
. it should be tested by the adversary process . . ..’” Ruiz-Troche v. Pepsi Cola of P.R.
Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (citing Daubert, 509 U.S. at 590, 596).
In determining whether an expert’s opinions are sufficiently reliable, a court
considers nonexclusive factors such as: “(1) whether the theory or technique can be
and has been tested; (2) whether the technique has been subject to peer review and
publication; (3) the technique's known or potential rate of error; and (4) the level of
the theory or technique's acceptance within the relevant discipline.” Milward v.
Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 14 (1st Cir.2011) (citation omitted).
The Court considers such factors to ensure that the proffered expert testimony

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is based on “scientific knowledge rather than guesswork.” Ruiz–Troche, 161 F.3d at
81 (citing Daubert, 509 U.S. at 592). Neither Rule 702 nor Daubert “requires a district
court to admit opinion evidence which is connected to existing data only by the ipse
dixit of the expert. A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.”

Ruiz–Troche, 161 F.3d at 81

(quoting General Elec. Co. v. Joiner, 522 U.S. 136, 137 (2007)). Rule 702 “requires
that expert testimony be based on sufficient facts or data. Sufficient implies that
expert testimony can be based on less than the entire universe of facts or data that
could be provided to the expert.”

Grande Vill. LLC v. CIBC Inc., No.

114CV3495NLHJS, 2018 WL 3085207, at *4 (D.N.J. June 22, 2018).
Ms. Howard argues that Mr. Provder’s proffered testimony is so significantly
unreliable that it warrants complete exclusion because he did not follow his own
methodology in that he did not “review . . . all of the materials,” including the three
depositions of Ms. Howard’s expert witnesses and updated medical records which
were taken after he formulated his report, as proscribed in part five of his
methodology framework, or personally interview her or review her deposition as
provided for in part one of the methodology. Pl.’s Mo. 6-7. In part one of Mr. Provder’s
methodology, he reviews information on Ms. Howard’s background and medical
treatment, and in part five, he considers all the available materials to formulate his
opinion as to Ms. Howard’s post-injury vocational capacity. Provder’s Report at 5-6.
In the section titled “formulation of opinion”, Mr. Provder states his “opinions are
based on the information available to [him] at the time of [his] evaluation . . . [and

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that he] reserve[s] the right to modify [his] vocational opinions.” Id. at 7.
On this record, the Court does not conclude that Mr. Provder’s expert opinion
is “so fundamentally unsupported that it can offer no assistance to the jury.” See
Brown v. Wal-Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (D. Me. 2005) (quoting
Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005)). Mr. Provder’s report largely
tracks his six-part methodology, and his opinions are based on the information he
had when he wrote his report as well as on his professional judgment, experience as
a vocational expert, and labor market research. Ms. Howard’s argument that Mr.
Provder “violated his own methodology” either misses the mark or overstates the
degree of the violation. Ms. Howard latches her argument partly onto the fifth part
of Mr. Provder’s methodology, where he states “[a] review is made of all the materials
and an opinion is formulated . . ..” Provder’s Report at 6. Ms. Howard believes this
means because Mr. Provder did not consider “all the materials,” which includes
documents and information produced after his report, Mr. Provder violated his
methodology.
However, Mr. Provder’s report states that he formulates his opinions “on the
information available to [him] at the time of evaluation.” Id. at 7. As Ms. Howard
notes, Mr. Provder reserved the right to modify his vocational opinions in light of
additional opinions, and Mr. Provder’s deposition illustrates that subsequent
information could change some of his conclusions. See Def.’s Opp’n, Attach. 3, Tr. of
Teleconferenced Deposition of Edmond Provder at 20:2 – 20:15; 31:9 – 31:18 (ECF No.
46-3) (Provder Dep. Tr.)

The fact that Mr. Provder may not have reviewed the

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deposition of Ms. Howard, or personally interviewed her by the time of his deposition
goes to the weight and credibility of Mr. Provder’s opinions, not to their admissibility.
See Grande Vill., LLC, 2018 WL 3085207, at *4 (“Sufficient implies that expert
testimony can be based on less than the entire universe of facts or data that could be
provided to the expert”).
Although Ms. Howard asserts she is challenging Mr. Provder’s testimony based
on his methodology, her argument for excluding his expected testimony seems closely
tied to her belief that his opinions lack an adequate foundation. Pl.’s Mot. at 7
(“Nonetheless, he went forward in deposition testimony with the same opinion he
expressed in his report with an even more inadequate foundation for his opinions on
Melanie’s employability”). In Oliver-Gely v. HI Development PR Corp., 472 F. Supp.
2d 140 (D.P.R. 2007), the defendants sought to exclude the plaintiffs’ expert
testimony who was expected to testify as to the causation between a decedent’s skin
lesion suffered as a result of a fall in a hotel bathroom and a subsequent bacterial
infection. Id. at 142. The defendants argued that the expert’s testimony should be
excluded because he used a flawed methodology to reach his conclusions given that
he had “reached his opinions without having seen a complete copy of [the decedent’s]
medical records.” Id. at 144. The court denied the motion, stating that “challenges
to the methodology used by an expert witness are usually adequately addressed by
cross-examination.” Id. (citing United States v. Diaz, 300 F.3d 66, 76–77 (1st Cir.
2002)).
Similarly, in Kirouac v. Donahoe, No. 2:11-cv-00423-JAW, 2013 WL 173475, at

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*2 (D. Me. Jan. 16, 2013), the United States Postal Service (USPS) sought to exclude
a plaintiff’s expert witness who was expected to testify, among other things, to the
plaintiff’s “medical ability to return to employment with the USPS, and her work
capacity subsequent to her termination by the USPS.” Id. at *1. USPS argued that
the expert spent too little time on the case, reviewed a limited set of data, and based
his opinions on factual misunderstandings. Id. The Court rejected these arguments
as rendering the expert’s expected testimony inadmissible, and stated “[w]hen the
‘adequacy of the foundation for the expert testimony is at issue, the law favors
vigorous cross-examination over exclusion.’” Id. at *2 (quoting Zuckerman v. Coastal
Camps, Inc., 716 F. Supp. 2d 23, 28 (D. Me. 2010) (quoting Carmichael v. Verso Paper,
LLC, 679 F. Supp. 2d 109, 119 (D. Me. 2010))).
The Court concludes that Mr. Provder’s expected testimony is sufficiently
reliable, and that any deficiencies in his methodology or the foundation for his
conclusions can be adequately addressed through cross-examination. See Brown, 402
F. Supp. 2d at 308 (explaining that a party seeking to exclude testimony because of
the factual basis underlying an expert’s opinions are generally not a question of
admissibility, but rather credibility suitable for a jury determination).
2.

Scope of Expertise

Ms. Howard seeks to exclude Mr. Provder’s testimony because Mr. Provder
“substituted his own opinion of her psychological condition in place of the opinions of
the PTSD experts, Dr. Lubit and Nickie Cole, both of whom opined that her mental

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condition rendered her permanently unemployable.” 4 Pl.’s Mot. at 7. Ms. Howard
points to Mr. Provder’s deposition where he states: “I don’t disagree that she has a
psychological condition. I disagree that the psychological condition has a lot of impact
on her ability to work.” Id. at 5, 7. Furthermore, as evidence of Mr. Provder exceeding
his expertise, Ms. Howard observes that Mr. Provder admitted if Ms. Howard’s
psychological conditions as listed in Audrey Cowart’s report, after consultation with
Dr. Lubit, were “severe,” Ms. Howard would not be employable. Id.
Demo Salvage dismisses Ms. Howard’s contention because it says that Mr.
Provder’s opinion is grounded in his view of Ms. Howard’s motivation to work, which
“[n]o specific expertise or training is required to include this testimony in one’s
evaluation of Ms. Howard’s vocational prognosis or her motivation to work in an
accommodative job that was provided for her by her employer.” Def’s Opp’n at 5-6.
Mr. Provder’s deposition reads:
Q. Right. And if you go back to Page 6 of [Dr. Esponnette’s]
opinion -- I mean, of his report; the Conclusion section, he talks about
the physical issues in the first paragraph. And in the second paragraph,
he said, However, in terms of affecting her life, the greatest problem
appears to be the psychologic sequelae to the injury, with readily noted
post-traumatic stress disorder. Not being an expert in psychology in
general nor post-traumatic stress disorder specifically, we did not spend
much time discussing this issue, but it is exceptionally obvious when
reviewing her medical records.
A. Yes. That's what it states.
On this point, Ms. Howard’s argument has a Catch-22 aspect. J. HELLER, CATCH-22 (1961).
The jury will answer whether Ms. Howard is believable, and of course it is her burden to prove she is.
If Dr. Lubit and Nickie Cole are relying on the accuracy of the symptoms Ms. Howard reported to them
in arriving at their conclusions that she is unemployable and if Mr. Provder must accept Dr. Lubit and
Nickie Cole’s opinions, then, under Plaintiff’s theory, the defense must accede to her credibility before
its expert will be allowed to express his expert opinion.
4

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Q. Okay. And you disagree with that?
A. No, I don't disagree that she has a psychological condition. I
disagree that the psychological condition has a lot of impact on her
ability to work. In fact, the ability to work and getting back to work will
probably help her deal with some of her psychological symptomatology.
.............
Q. Okay. [Dr. Lubit’s] ultimate finding is that she has posttraumatic stress disorder and that she basically cannot function as a
normal person because of that post-traumatic stress disorder. Do you
agree with that? Not -- not that you agree with the concept, but do you
agree that that is his finding?
A. Yes. And that's his finding. But if you look at Page 12 of his
report at the last paragraph, he gives a notation of why she has some of
these feelings. And in fact, as I noted before, that some of these feelings
would be negated if she would turn to some type of gainful employment.
It would give her a sense of purpose.
.............
Q. So if you -- even though you say these speak for themselves and
you can't say one way or the other whether they're -- whether you agree
with them, if all of these things are true about Melanie's psychiatric
state, would you agree that she does not have a functional work
capacity?
[Objection]
A. Yes. If she had a severe -- severe limitations in each of these
areas, then she would not be employable in the jobs that I have listed.
But if she had a mild to moderate range of these areas, then she could
be employable. In fact, I think, as I previously stated, that if she was
employed and had a job that she was able to perform, in my opinion as
a vocational rehab counselor, a lot of these things are going to be
diminished because they're going to give her self-worth and some
meaning to her life, which is part of what Dr. Lubit is talking about in
his report.
.............
Q. All right. Ms. Cowart indicates that -- primarily that she -- she
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agrees that she has some physical abilities to do some work, but she
bases her lack of ability to sustain employment primarily on
psychological bases. And do you disagree with that?
A. Well, number one, I believe that given the physical restrictions
noted by the IME doctor, that Ms. Howard has the capability to perform
work requiring at least sedentary or light physical demands. As per our
previous conversation regarding Dr. Lubit's assessment, as he notes in
Ms. Cowart's report, reported to Ms. Cowart, if she has those capabilities
and those limitations, if they're mild or to moderate, she could go back
and become employed. If they're severe, then she's unemployable.
Q. He was deposed last week and said that it was the single most
-- the single-worst case of single-exposure PTSD that he had ever seen
in his career.
[Objection]
Q. Does that change your opinion?
A. No, it doesn't. I've had -- you know, I've been doing this for a
long time. I've had many individuals that have PTSD, and many of them
have been able to overcome their PTSD with therapy and return to work
and perform gainful work activities. So the fact that this is the worst
that the psychiatrist has seen, that's no -- no moment to me. You know,
I don't know what type of a practice he has, but I work with people that
have very severe and catastrophic injuries, and many of them as a
consequence have PTSD. But even though they have a PTSD diagnosis,
they're able to return to some type of gainful employment.
Provder Dep. Tr. at 15:9 – 16:6; 16:13 – 17:3; 19:17 – 20:15; 26:7 – 27:22. After being
asked if the PTSD symptoms listed in a June 2016 letter from Ms. Howard’s primary
care physician are largely intact today, making Ms. Howard a poor candidate for
employment, see id. at 28:25 – 29:3; 29:21 – 30:17; 31:5 – 31:6, Mr. Provder replied
that “if Ms. Howard's condition to those factors are severe and have been severe since
[June 2016], then she would not be employable. But . . . she did go back to work for
a period of time after this letter was written and continued to work until January

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19th, 2017.” Id. at 31:9 – 31:18.
Mr. Provder’s opinion on the impact of Ms. Howard’s psychological condition
on her employability seems to be grounded in his prior experience with individuals
who suffered from PTSD and returned to work, doubts about her motivation to seek
work derived from what he viewed as her documented lack of purpose, and the fact
that Ms. Howard returned to work, albeit relatively briefly, after her injury. In the
Court’s view, Mr. Provder may opine, based on his experience and professional
expertise, that Ms. Howard’s PTSD diagnosis does not necessarily mean she has no
earning capacity.
Given the record, the Court does not conclude that Mr. Provder is substituting
his opinions for those of mental health professionals. “Rule 702 has been interpreted
liberally in favor of the admission of expert testimony.” Levin, 459 F.3d at 78 (citing
Daubert, 509 U.S. at 588). Ms. Howard may object to Mr. Provder’s specific testimony
and vigorously cross-examine him to illustrate that the jury should give his opinions
little or no weight. See Guzman-Fonalledas v. Hosp. Expanol Auxilio Mutuo, 308 F.
Supp. 3d 604, 609 (D.P.R. 2018) (“Should [the expert witness] exceed the bounds of
her intellectual authority, Defendants will be able to highlight such excesses in crossexamination, and the jury will afford the pertinent weight to her testimony”).
“Once a trial judge determines the reliability of the expert’s methodology and
the validity of his reasoning, the expert should be permitted to testify as to the
inferences and conclusions he draws from it and any flaws in his opinion may be
exposed through cross-examination or competing expert testimony.” Knowlton v.

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Bankers Life & Cas. Co., 882 F. Supp. 2d 129, 130 (D. Me. 2012) (quoting Brown, 402
F. Supp. 2d at 308). “Vigorous 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.” Daubert, 509 U.S. at 596.
IV.

CONCLUSION
The Court DENIES Melanie Howard’s Motion to Exclude Expert Testimony of

Edmond Provder (ECF No. 29).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 31st day of January, 2019

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