Fields v. Ashford et al
Filing
154
ORDER Granting in Part and Denying in Part Defendants' 150 Motion to Exclude the Expert Opinion Testimony of Ronald Smolarski. Signed by District Judge Matthew F. Leitman. (HRya)
Case 2:17-cv-11812-MFL-RSW ECF No. 154, PageID.4507 Filed 10/19/22 Page 1 of 16
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGELA J. FIELDS,
Plaintiff,
Case No. 17-cv-11812
Hon. Matthew F. Leitman
v.
PIERRE OCTAVIUS ASHFORD, et al.,
Defendants.
__________________________________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO EXCLUDE THE EXPERT OPINION TESTIMONY OF
RONALD SMOLARSKI (ECF No. 150)
Now before the Court is a motion by Defendants Pierre Octavius Ashford, Corr
Transport, Inc., and Dakota Lines, Inc. to exclude the expert opinion testimony of
Ronald Smolarski. (See Mot., ECF No. 150.) For the reasons explained below, the
motion is GRANTED in part and DENIED in part.1
I
A
This diversity action arises out of an automobile accident involving Plaintiff
Angela Fields and Defendant Ashford that occurred on I-96 in Milford, Michigan. On
May 25, 2016, Fields’ Ford Edge crashed into the back of Ashford’s semi-truck shortly
1
The Court concludes that it may resolve this motion without oral argument. See
E.D. Mich. Local Rule 7.1(f)(2).
1
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after Ashford pulled his truck into Fields’ lane of travel from the shoulder of the
highway. Fields now brings a negligence claim against Ashford and a vicarious liability
claim against Corr Transport and Dakota Lines, the owners of Ashford’s truck. (See
Compl., ECF No. 1, PageID.9-21.)
B
As this action proceeded, the Court entered three Case Management Orders
setting the deadlines by which each party was required to disclose the expert witnesses
they intended to rely on under Federal Rule of Civil Procedure 26. The Court’s first
Case Management Order set that deadline as March 28, 2018. (See Case Man. Order,
ECF No. 25, PageID.191.) The Court later extended that deadline to April 11, 2018.2
(See Scheduling Order, ECF No. 33, PageID.257.)
The Court’s Case Management Orders also set deadlines for the conclusion of
fact and expert discovery. The final deadline for the completion of fact discovery was
April 6, 2018, (see Scheduling Order, ECF No. 33, PageID.257), and the final deadline
for the completion of expert discovery was January 19, 2019. (See Case Man. Order,
ECF No. 69, PageID.1494.)
2
For a narrow set of physician witnesses, the Court extended the deadline for expert
disclosures until September 10, 2018. (See Order, ECF No. 69, PageID.1494.) That
narrow extension is not relevant to the issues addressed in this order.
2
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In compliance with the Court’s orders, Fields timely disclosed Robert Ancell,
Ph.D., as an expert vocational witness and timely served on Defendants a “Vocational
Rehabilitation Evaluation” prepared by Dr. Ancell. (See Ancell Report, ECF No. 1501, PageID.4283).
In that report, Dr. Ancell opined that: “From a vocational
rehabilitation standpoint, Ms. Fields has sustained very significant vocationally limiting
problems…She has not been released to work and is currently totally unemployable.”
(Id., PageID.4287.) Fields planned to have Dr. Ancell offer that opinion at trial.
However, while the parties were preparing for trial, Dr. Ancell passed away. (See Mot.
at ¶¶ 3-4, ECF No. 116, PageID.3518.)
On April 8, 2022, Fields filed a motion to amend her witness list “to name a new
vocational rehabilitation expert.” (Mot. at ¶ 5, ECF No. 116, PageID.3518.) The Court
granted Fields’ motion and authorized her to “retain a new vocational expert to replace
Dr. Ancell.” (Order, ECF No. 131, PageID.4050.) The Court required Fields to provide
Defendants with a report from her new vocational expert and to make the new expert
available for a deposition. (See id.)
C
Pursuant to the Court’s order, Fields retained Ronald Smolarski to replace Dr.
Ancell as her vocational rehabilitation expert. Smolarski is a certified rehabilitation
counselor and vocational evaluator who has testified as an expert witness in “hundreds”
of trials in Michigan on topics related to vocational rehabilitation. (See Smolarski C.V.,
ECF No. 151-3, PageID.4407-4408.) He has over 40 years of professional experience
3
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in the field of vocational rehabilitation, and he currently serves as the director of Beacon
Rehabilitation Services, Inc., an organization he founded to offer “medical case
management, economic and vocational rehabilitation” to injured and disabled clients.
(Id.) Fields timely provided Defendants with Smolarski’s expert report, and he was
deposed on May 31, 2022.
Smolarski’s expert report is divided into three sections: a “vocational
assessment,” a “functional/work capacity evaluation,” and an “economic damages
evaluation.” (See Smolarski Report, ECF No. 150-2.) In the “vocational assessment”
section of his report, Smolarski opines on Fields’ ability to access the labor market postinjury. (See id., PageID.4315.) Like Dr. Ancell, Smolarski concluded that Fields “has
access to 0 occupations[.]” (Id.) In reaching this conclusion, Smolarski primarily relied
on two considerations: Fields’ cognitive/psychological impairments and her physical
limitations. (See id., PageID.4307-4315.)
His assessment of her cognitive and
psychological impairments was based on a series of aptitude tests that he administered.
(See id., PageID.4312.) His analysis of her physical limitations rested on two sets of
data: (1) information provided by one of her treating physicians in response to a short
questionnaire and (2) her performance on a number of tests (described in more detail
below) that Smolarksi administered to her as part of his “functional/work capacity
evaluation.” (See id., PageID.4314.)
Notably, Smolarksi explained that the tests
administered during the “functional/work capacity evaluation” provided some of the
4
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“foundation” for his opinions concerning Fields’ vocational capabilities. (Id.,
PageID.4321.)
In the “functional/work capacity evaluation” part of his report, Smolarski
explained the results of a series of physical tests that he administered to Fields in order
to assess traits like manual dexterity, finger dexterity, motor coordination, and her
ability to use specific tools. (See id., PageID.4323.) Based on these tests, Smolarski
concluded that: “Fields’s vocational pursuits should concentrate on a noncompetitive
job requiring manual and fine finger dexterity as well as motor coordination, lifting up
to 10 pounds at less than full range of motion, with a sit-stand option to be able to work
at a sustained rate at part-time [15 hours per week] at noncompetitive work.” (Id.,
PageID.4327.)
Finally, in the “economic damages evaluation” section of his report, Smolarski
opined on the total economic damage that Fields suffered as a result of her injuries. (Id.,
PageID.4320-4344.)
During his deposition, Smolarski confirmed his intention to offer opinion
testimony at trial tracking all three sections of his report. (See Smolarski Dep., ECF No.
150-3, PageID.4350.)
D
On June 29, 2022, Defendants moved to exclude Smolarski’s testimony on two
grounds. First, Defendants argue that Smolarski’s testimony should be excluded in its
entirety under Federal Rule of Evidence 702 because it is not based upon sufficient facts
5
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or data, is not the product of reliable principles and methods, and is unnecessary to the
jury’s determination of any material fact. (See Mot., ECF No. 150, PageID.4267.)
Second (and in the alternative), Defendants argue that, if the Court does not exclude all
of Smolarski’s testimony under FRE 702, the Court should at least exclude Smolarski’s
opinion testimony about Fields’ “functional/work capacity” and her “economic
damages” because (1) the Court authorized Fields to call Smolarski for the limited
purpose of replacing Dr. Ancell’s testimony and (2) these opinions far exceed the scope
of Dr. Ancell’s vocational rehabilitation opinions. (See id., PageID.4276-4278.)
Defendants further argue that these opinions should also be excluded because Fields
failed to timely disclose them. (See id.)
II
The Court first turns to Defendants’ more narrow contention that the Court
should exclude Smolarski’s opinions concerning Fields’ “functional/work capacity”
and her “economic damages” because those opinions exceed the scope of Dr. Ancell’s
expert report and were not timely disclosed. For the reasons explained below, the Court
agrees that Smolarski’s economic damages opinions should be excluded on these
grounds, but the Court concludes that his functional/work capacity opinions should not
be excluded.
6
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A
The disclosure of expert opinion witnesses and the subject of expert testimony is
governed by Federal Rule of Civil Procedure 26(a)(2). That rule provides, in relevant
part, that “[i]n addition to the disclosures required by Rule 26(a)(1), a party must
disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P.
26(a)(2)(A). The rule further provides that a witness who is “retained or specifically
employed to provide expert testimony” must provide a “written report” containing,
among other things, “a complete statement of all opinions the witness will express and
the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i).
Rule 26(a)(2)(D) authorizes a district court to enter an order setting the time by
which each party must make their required disclosures of expert opinion
witnesses. See Fed. R. Civ. P. 26(a)(2)(D). As noted above, this Court required the
parties to make their Rule 26(a)(2) disclosures by April 11, 2018. (See Scheduling
Order, ECF No. 33, PageID.257.)
“If a party fails to provide information or identify a witness as required by Rule
26(a) ... 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.” Fed. R. Civ. P. 37(c)(1). While a Court may issue a lesser sanction,
“exclusion of late or undisclosed evidence is the usual remedy for noncompliance
with Rule 26(a).” Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015).
7
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When determining whether a party’s failure to make a disclosure required under
Rule 26(a) was harmless or substantially justified, the Court considers the following
factors:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and (5)
the nondisclosing party’s explanation for its failure to
disclose the evidence.
Id. at 748. The proponent of the late-disclosed evidence has the burden to demonstrate
that their flawed disclosure was harmless or substantially justified. See Roberts ex rel.
Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003).
B
It is undisputed that Fields did not timely disclose that any expert witness would
be offering any opinions concerning economic damages. Those opinions first appeared
in Smolarski’s report, which was served long after the deadline for disclosing expert
testimony, and long after the close of fact and expert discovery. Because Fields did not
timely disclose that any expert witness would be opining on the economic damages she
suffered, she may offer those opinions at trial only if she shows that her failure to
disclose was harmless or substantially justified.
Fields has not even attempted to make the required showing of harmlessness or
substantial justification. Indeed, her response to Defendants’ motion neither mentions
nor applies the “harmless or substantially justified” standard. Likewise, she does not
8
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explain how the five Howe factors identified above apply to her failure to timely
disclose Smolarski’s expert opinion on economic damages. Nor can Fields reasonably
claim that this testimony merely replaces the testimony that Dr. Ancell would have
given, as Dr. Ancell never purported to opine on any question of economic damages.
Because Fields has not carried her burden to show that her failure to timely disclose this
expert opinion on economic damages was harmless or substantially justified, the Court
will exclude Smolarski’s opinions on that subject pursuant to Rule 37(c)(1).3
C
However, the Court reaches a different result with respect to Smolarski’s
functional/work evaluation opinions. The Court views these opinions as part and parcel
of the vocational rehabilitation opinions that the Court specifically authorized
3
Although it is not required to do so, the Court has proceeded to apply the Howe
factors and has independently determined that the balance of the factors weighs
against a finding that Fields’ failure to timely disclose Smolarski’s expert opinion
on economic damages was harmless or substantially justified. First, Defendants
were unreasonably and unfairly surprised by the addition of this opinion. Prior to
Defendants’ receipt of Smolarski’s report, they had no reason to believe that any
expert would opine on economic damages and that Fields would seek to introduce
that opinion at trial. Second, Defendants cannot reasonably be expected to cure the
surprise. In order to do so, they would need to retain their own expert on economic
damages and would likely have to conduct additional fact discovery on economic
damages for their new expert to review. It is not reasonable to ask Defendants to
undertake that effort and to incur the related expenses at this late stage of the
proceedings. Third, it is not clear that presenting the evidence would disrupt the
trial. Fourth, the evidence is not essential to Fields’ case. She can explain to the
jury in lay terms that she can no longer earn a living due to the physical and cognitive
limitations she now faces as a result of her injury. Finally (and perhaps most
importantly), Fields has not offered any reasonable explanation for her failure to
timely disclose an economic damages expert opinion.
9
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Smolarski to provide in place of Dr. Ancell. Indeed, as described above, Smolarski
explained that his functional/work capacity evaluation forms part of the “foundation”
of his vocational rehabilitation opinions. (Smolarski Report, ECF No. 150-2,
PageID.4321.) And Smolarski explained in his vocational assessment that his analysis
of Fields’ physical limitations is “based upon the results of the functional capacity
evaluation.” (Id., PageID.4314.)
Thus, the Court views Smolarski’s “functional
work/capacity evaluation” not as a standalone assessment, but, instead, as a tool that he
used to reach his opinions regarding Fields’ vocational rehabilitation, which were of
course the very opinions that the Court authorized him to offer in place of Dr. Ancell.
Defendants counter that “[Dr.] Ancell, the vocational expert originally chose[n]
by the [Fields], did not need any functional capacity evaluation […] to complete his
report or opinions.” (Reply, ECF No. 152, PageID.4500.) But the fact that Dr. Ancell
employed a different methodology to assess Fields’ vocational rehabilitation does not
mean that Smolarski materially exceeded the scope of Dr. Ancell’s opinions. The two
simply used different approaches to reach their ultimate conclusions about Fields’
vocational rehabilitation prospects.
For all of these reasons, the Court declines to exclude Smolarski from offering
functional/work capacity opinions on the ground that those opinions exceed the scope
of Dr. Ancell’s opinions and/or were not timely disclosed.
10
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III
A
The Court next turns to whether it should exclude Smolarski’s vocational
rehabilitation and functional/work capacity opinions under Federal Rule of Evidence
702.4 That rule 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.
Fed. R. Evid. 702. Under this rule, district courts have “broad discretion as [ ]
‘gatekeeper[s]’ to determine the admissibility” of expert testimony. Pride v. BIC Corp.,
218 F.3d 566, 578 (6th Cir. 2000). In assessing proposed expert testimony, a district
court must “determine whether [the] evidence ‘both rests on a reliable foundation and
is relevant to the task at hand.’” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d
4
Since the Court has concluded that Smolarski’s economic damages opinions must
be excluded for the reasons explained above, the Court need not, and does not,
evaluate whether those opinions should be excluded under FRE 702.
11
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521, 527 (6th. Cir. 2012) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993)).
In Daubert, the Supreme Court stressed that there is no “definitive checklist or
test” that a district court must apply when considering the reliability of expert
testimony. Daubert, 509 U.S. at 590. Yet, at the same time, the Supreme Court
identified “several factors that a district court should consider when evaluating the
scientific validity [and reliability] of expert testimony, notably: the testability of the
expert’s hypotheses (whether they can be or have been tested), whether the expert’s
methodology has been subjected to peer review, the rate of error associated with the
methodology, and whether the methodology is generally accepted within the scientific
community.” Pride, 218 F.3d at 577 (citing Daubert, 509 U.S. at 593-94).
The Daubert “factors, while perhaps most apt in evaluating a purely scientific
discipline, can also apply in evaluating non-scientific fields that are ‘technical’ or
‘specialized’ in nature.” United States v. Mallory, 902 F.3d 584, 593 (6th Cir.
2018) (quoting Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-53 (1999)).
However, these factors may not be useful in evaluating the reliability of some types of
expert testimony, and thus applying the “factors [is] not mandatory in every case.” Id.
Finally, “nothing in either Daubert or the Federal Rules of Evidence requires a
district court to admit evidence that is connected to existing data by the ipse dixit of the
expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In the end, “[t]he questions
of what factors to apply and what conclusions to draw about an expert’s reliability are
12
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entrusted to the district court’s discretion.” Mallory, 902 F.2d at 593; see also Kuhmo
Tire, 526 U.S. at 141 (“[W]hether Daubert’s specific factors are, or are not, reasonable
measures of reliability in a particular case is a matter that the law grants the trial judge
broad latitude to determine.”).
B
Defendants contend that “Smolarski’s testimony does not meet [the] requisite
threshold” established by Daubert and Rule 702. The Court disagrees.
Defendants first argue that Smolarski’s vocational rehabilitation opinions must
be excluded because they are not based on “sufficient facts or data.” (Mot., ECF No.
150, PageID.4267.) Defendants highlight that Smolarski reviewed “no medical records
or data whatsoever to formulate his opinion.” (Id., PageID.4261.) And they insist that
“the only ‘objective’ information and data that Mr. Smolarski relied on to determine
the limitations of the Plaintiff” was answers provided by Dr. Jennings (Fields’ primary
care doctor) to a questionnaire prepared by Smolarski.” (Id., PageID.4270; emphasis in
original.)
Defendants are incorrect. Contrary to their contention, Smolarski relied on
objective data beyond Dr. Jennings’ answers on the questionnaire. As Smolarski’s
report details, he also relied on the results of a number of cognitive aptitude tests and
physical capacity assessments that he administered to Fields. (See Smolarski Report,
ECF No. 150-2, PageID.4311-4315.) The aptitude tests were designed to measure a
number of relevant cognitive attributes, such as Fields’ reading comprehension, object
13
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and spatial perception, mathematic competency, and spelling. (See id., PageID.43114312.)
And the physical assessments were designed to assess Fields’ ability to
withstand the physical demands of various jobs, testing her capacity to perform certain
vital movements and to withstand certain environmental conditions. (See id.,
PageID.4314-4315.) As Smolarski explained in his report, he relied on all of these
clinical assessments, as well as Dr. Jennings’ questionnaire answers and Fields’ own
assessment of her pain, to reach his conclusion that Fields “has access to 0 occupations”
as a result of her injuries. (Id., PageID.4316.)
Defendants next argue that Smolarski’s methodology was unreliable because,
unlike Dr. Ancell, he did not review Fields’ medical records. While it is true that Dr.
Ancell conducted a much more searching review of Fields’ medical records, Smolarski
personally administered a series of physical and cognitive tests that Dr. Ancell did not.
(See id.) Indeed, Smolarski’s methodology was more extensive than Dr. Ancell’s in
this regard. Defendants have not persuaded the Court that Smolarski’s methods for
assessing Fields’ vocational capacity were unreliable.
The Court has carefully reviewed Smolarski’s vocational rehabilitation and
functional/work capacity evaluations and opinions, and the Court concludes that
Smolarski utilized sufficiently reliable methods and that he based his conclusions on
sufficient data. While Defendants have identified a number of areas in which Smolarski
could have performed a more thorough analysis and/or relied upon additional data,
those imperfections do not require exclusion of his vocational rehabilitation and
14
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functional/work capacity opinions. Defendants may thoroughly explore these issues on
cross-examination of Smolarski.
C
Finally, Defendants argue that Smolarski’s opinions are inadmissible because
they are unnecessary, as “any lay juror could understand the facts cited by Mr.
Smolarski without the assistance of expert testimony.” (Mot., ECF No. 150,
PageID.4275.) In support of this contention, they reiterate that “Smolarski relies
primarily upon some of the opinions of Dr. Jennings and [Fields] – both of whom will
testify regarding the [Fields’] medical conditions and alleged functional limitations.”
(Id.) But, as explained above, Smolarski relied on more than Dr. Jennings’ assessment
and Fields’ own reports of her condition. Smolarski also relied on a battery of cognitive
and physical assessments that he personally administered as an expert in vocational
rehabilitation.
A jury could reasonably benefit from Smolarski’s “specialized
knowledge” regarding what these various tests revealed about Fields’ vocational
profile.
IV
For the reasons explained above, the Court concludes that Smolarski’s expert
opinions regarding Fields’ economic damages should be excluded, but that his expert
opinions regarding the vocational evaluation and the functional capacity evaluation that
he conducted are admissible. Defendants’ motion to exclude Smolarski’s expert
15
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opinion testimony (ECF No. 150) is therefore GRANTED in part and DENIED in part
as set forth above.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: October 19, 2022
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 19, 2022, by electronic means and/or ordinary mail.
s/Holly A. Ryan
Case Manager
(313) 234-5126
16
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