Rozinsky et al v. Assurance Company of America

Filing 30

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 7/21/2017. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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VALERY ROZINSKY,
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Plaintiff,
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v.
Civil Action No. RDB-15-2408
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ASSURANCE COMPANY OF AMERICA,
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Defendant.
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MEMORANDUM OPINION
The facts of this case have been set forth in this Court’s prior Memorandum Opinion
of March 4, 2016 (ECF No. 14). Plaintiff Valery Rozinsky (“Plaintiff” or “Mr. Rozinsky”)
has brought this action against Defendant Assurance Company of America (“Defendant” or
“Assurance”), asserting one count of breach of contract in connection with an automobile
accident on October 22, 2012, in which Mr. Rozinsky allegedly sustained injuries while
operating a vehicle owned by his employer, Milhouse, LLC d/b/a Edible Arrangements
(“Milhouse”), and insured under a motor vehicle insurance policy issued by Assurance.
Compl., ECF No. 2.

Mr. Rozinsky seeks to recover underinsured motorist benefits,

pursuant to the policy’s uninsured/underinsured motorist (“UIM”) provision, which he
claims Assurance “has refused to pay . . . for his damages resulting from the collision,” “[i]n
breach of its insurance contract.” Id. at 12.
Mr. Rozinsky filed this action in the Circuit Court for Baltimore County, Maryland,
but Assurance has removed this case to this Court based on diversity of citizenship, pursuant
to 28 U.S.C. § 1332. See Notice of Removal, ECF No. 1. Initially, Mr. Rozinsky brought a

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second count against Assurance, jointly with his wife, Galina Rozinsky, alleging loss of
consortium in connection with the same accident and his subsequent injuries. Compl., ¶ 14,
ECF No. 2. However, this Court has subsequently dismissed Court Two and, accordingly,
has dismissed Galina Rozinsky as a party in this action. See March 4, 2016 Mem. Opinion
and Order, ECF Nos. 14 & 15.
Currently pending before this Court is Assurance’s Motion to Exclude Expert
Testimony of Kathy Stone (ECF No. 27). As discussed infra, Ms. Stone has offered her
opinion that, “[b]ased on Mr. Rozinsky’s age, education, work history, transferable skills and
[ ] physical limitations . . . he is, within a reasonable degree of vocational certainty, not a
viable candidate for [vocational rehabilitation] services and . . . has no present earning
capacity.”

Stone Report, p. 2, ECF No. 29-15.

The parties’ submissions have been

reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons
stated herein, Defendant Assurance Company of America’s Motion to Exclude Expert
Testimony of Kathy Stone (ECF No. 27) is DENIED. Mr. Rozinsky has established by a
“preponderance of the evidence” that Ms. Stone’s opinions satisfy Rule 702 of the Federal
Rules of Evidence and the factors for the admissibility of expert testimony set forth by the
United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93
(1993), and recently confirmed by the United States Court of Appeals for the Fourth Circuit
in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017). This case shall proceed to
a bench trial before this Court, beginning on Tuesday, August 1, 2017.

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STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence provides that “[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.
“Under Rule 702 . . . . [c]ourts are required to act as ‘gatekeepers’ to ensure that expert
testimony is relevant and reliable.” Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir.
2017) (quoting Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993))). “[A] district court ‘must
conduct a preliminary assessment’ to determine whether the methodology underlying the
expert witness’ testimony is valid.”

Id.

(quoting Daubert, 509 U.S. at 592-93). The

proponent of the expert testimony in question must establish admissibility “by a
preponderance of proof.” Cooper, 259 F.3d at 199 (citing Daubert, 509 U.S. at 592, n. 10).
The United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993) set forth several factors for courts to consider in assessing the admissibility of expert
testimony.

The United States Court of Appeals for the Fourth Circuit has recently

confirmed those factors in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017):
In assessing the validity of the methodology employed by a proposed expert
witness, a court may consider whether the expert witness’ theory or technique:
(1) “can be or has been tested”; (2) “has been subjected to peer review and
publication”; (3) “has a high known or potential rate of error”; and (4) is
generally accepted “within a relevant scientific community.”

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(citing Cooper, 259 F.3d at 199). The Daubert factors are “neither definitive, nor exhaustive.”
Cooper, 259 F.3d at 199 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)). Rather,
“[t]he district court must be granted ‘considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is reliable.’ ” United States v.
McLean, No. 16-4673, 2017 WL 2533381, at *1 (4th Cir. June 12, 2017) (quoting United States
v. Wilson, 484 F.3d 267, 273 (4th Cir. 2007)).
ANALYSIS
Assurance has moved to exclude the expert testimony of Kathy Stone, Mr.
Rozinsky’s expert in the field of vocational assessments. See Mot., p. 1, ECF No. 27. Ms.
Stone has offered her opinion that, “[b]ased on Mr. Rozinsky’s age, education, work history,
transferable skills and [ ] physical limitations . . . he is, within a reasonable degree of
vocational certainty, not a viable candidate for [vocational rehabilitation] services and . . . has
no present earning capacity.” Stone Report, p. 2, ECF No. 29-15. Assurance does not
challenge Ms. Stone’s underlying “principles and methods” or her qualifications as a
vocational rehabilitation expert, but rather objects that Ms. Stone’s opinion is “speculative”
and “wholly inconsistent” with the fact that “Mr. Rozinsky has been working as a selfemployed fingerprint technician since 2014 earning $485.32 per week . . . [and] continues to
be employed in that capacity to this day.” Mot., pp. 1-5, ECF No. 27.
For the reasons that follow, Mr. Rozinsky has established the admissibility of Ms.
Stone’s testimony “by a preponderance of the evidence.” Cooper, 259 F.3d at 199 (citing
Daubert, 509 U.S. at 592, n. 10). The United States Supreme Court has made clear in Daubert
that this Court’s inquiry under Rule 702 of the Federal Rules of Evidence is “a flexible one.”

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Daubert, 509 U.S. at 594. Additionally, the United States Court of Appeals for the Fourth
Circuit has recently emphasized in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir.
2017) that “[t]o determine whether an opinion of an expert witness satisfies Daubert scrutiny,
courts may not evaluate the expert witness’ conclusion itself, but only the opinion’s
underlying methodology.” (citing TFWS, Inc. v. Schaefer, 325 F.3d 234, 240 (4th Cir. 2003)).
Ms. Stone holds a Bachelor of Science degree in Sociology from Shepherd College
and has attained numerous accreditations, including certification through the United States
Department of Labor as a Rehabilitation Counselor. Stone Vita, pp. 3-4, ECF No. 29-15.
She is a Certified Disability Management Specialist, has worked as a Vocational Counselor at
Stone Vocational Services, LLC since 1995, and has served on numerous Maryland state
workers’ compensation and rehabilitation committees.

Id.

She routinely offers expert

testimony on “employability and wage earning potential.” Stone Dep., p. 8, ECF No. 27-2.
In reaching her conclusions in this case, Ms. Stone conducted several phone
interviews with Mr. Rozinsky; reviewed multiple medical records, including the reports of
multiple orthopedic surgeons; conducted a “transferable skills analysis” and “labor market
research;” and “reviewed Bureau of Labor Statistics.” Id. at 14. She has described the
“transferable skills analysis” as follows:
Transferable skills analysis is where you take the job history that’s been
described by the client and you match that history up with Department of
Labor [Dictionary of Occupational Titles (“DOT”)] numbers . . . . Those
DOT numbers provide you information regarding the skill level of the job.
The reasoning, math and language skills for the job. The physical demands of
the job and a description of the job itself. Once you have that information,
you then factor in any medical restrictions for work that you’ve been
provided, thus leaving any alternative occupations that the individual can now
perform using the same skills, but within a more physically suitable
occupation.

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Id. at 15-16. Although Ms. Stone acknowledges that Mr. Rozinsky “is skilled,” she has
concluded, based on this analysis, that he could perform “none of those jobs,” nor could he
perform “any job that he qualifies for, based upon . . . his skills and education, given [his]
limitations.” Assurance does not contend that the transferable skills analysis is not a product
of “reliable principles and methods.” See Fed. R. Evid. 702(c). Indeed, both the United
States Court of Appeals for the Fourth Circuit and this Court have relied upon similar
assessments in previous cases. See, e.g., Mullins v. AT & T Corp., 424 F. App’x 217, 224 (4th
Cir. 2011); Cossio v. Life Ins. Co. of N. Am., 240 F. Supp. 2d 388, 395 (D. Md. 2002).
As discussed supra, the thrust of Assurance’s argument is that Ms. Stone’s report
ignores the fact that Mr. Rozinsky is in fact self-employed as a “fingerprint technician,”
allegedly “earning $485.32 per week.” See Mot., p. 1, ECF No. 27. The Supreme Court of
the United States has held that this Court’s “gatekeeping inquiry” under Rule 702 of the
Federal Rules of Evidence and Daubert “must be ‘tied to the facts’ of a particular ‘case.’ ” Kumho
Tire Co., 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). “Rule 702 grants the district judge the

discretionary authority . . . to determine reliability in light of the particular facts and circumstances of
the particular case.” Id. at 158 (emphasis added).
Contrary to Assurance’s objections, Ms. Stone has in fact considered Mr. Rozinsky’s
alleged self-employment in reaching her final opinions in this case. Ms. Stone has testified
that, upon learning that Mr. Rozinsky was working, she “was shocked” and “called him
several times to discuss the job with him.” Stone Dep., p. 23, ECF No. 27-2. Although she
“applaud[s] him for attempting this work,” she still concludes that it “physically . . . exceeds”
the restrictions outlined in his medical reports. Id. at 23. Ms. Stone has testified, based on

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her experience, that she has “frequently seen clients” similarly “ignore [their] limitations . . .
and return to work,” only to find themselves again seeking workers’ compensation years later
with an “exacerbated” condition. Id. at 23-24. In a report dated June 28, 2016, she has
confirmed that her “opinion remains unchanged” that Rozinsky “has no present earning
capacity,” in part because of “the 50% survival rate [for small businesses like his] and that his
work leads are still provided by an outside source . . . which his tax records demonstrate.”
Indeed, Mr. Rozinsky has provided his tax returns, which reflect total earnings of $941.00
from his fingerprinting business in 2014 (ECF No. 29-11); a total loss of $6,661.00 in 2015
(ECF No. 29-13); and a total loss of $31,945.00 in 2016 (ECF No. 29-14).
For these reasons, Mr. Rozinsky has established the admissibility of Ms. Stone’s
testimony “by a preponderance of the evidence.”

Applying “reliable principles and

methods” and her own “specialized knowledge,” she has concluded that Mr. Rozinsky has
“no present earning capacity,” based on his “age, education, work history, transferable
skills[,] and . . . physical limitations” outlined in his medical records. Having thoroughly
considered Mr. Rozinsky’s self-employment as a fingerprinting technician, her conclusion
remains unchanged for the reasons outlined supra. To the extent Assurance argues that Mr.
Rozinsky’s fingerprinting business is actually more profitable than this evidence, reviewed by
Ms. Stone, reflects, the Fourth Circuit has recently made clear in Bresler, 855 F.3d at 195, that
“ ‘questions regarding the factual underpinnings of the [expert witness’] opinion affect the weight
and credibility’ of the witness’ assessment, ‘not its admissibility.’ ” (quoting Structural Polymer Grp.
v. Zoltek Corp., 543 F.3d 987, 997 (8th Cir. 2008)) (emphasis added).

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CONCLUSION
For these reasons, Defendant Assurance Company of America’s Motion to Exclude
Expert Testimony of Kathy Stone (ECF No. 27) is DENIED. Mr. Rozinsky has established
by a “preponderance of the evidence” that Ms. Stone’s opinions satisfy Rule 702 of the
Federal Rules of Evidence and the factors for the admissibility of expert testimony set forth
by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–
93 (1993), and recently confirmed by the United States Court of Appeals for the Fourth
Circuit in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017). This case shall
proceed to a bench trial before this Court, beginning on Tuesday, August 1, 2017.
A separate Order follows.
Dated: July 21, 2017

____/s/____________________
Richard D. Bennett
United States District Judge

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