Walters et al v. Flint et al
Filing
681
OPINION AND ORDER denying 337 Motion to Exclude Testimony and Reports of Dr. Gary Cakes; denying as moot 500 Motion in Limine to Exclude Testimony on Topics Plaintiffs Experts have Disavowed. Signed by District Judge Judith E. Levy. (WBar)
Case 5:17-cv-10164-JEL-KGA ECF No. 681, PageID.43961 Filed 02/11/22 Page 1 of 14
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sherrod, Teed, Vanderhagen and Ware, Case No. 5:17-cv-10164-JELKGA
Plaintiffs,
Hon. Judith E. Levy
v.
Flint Water Cases Bellwether I
VNA and LAN,
Defendants.
_________________________________ /
OPINION AND ORDER DENYING DEFENDANTS VEOLIA
NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND
VEOLIA WATER NORTH AMERICA OPERATING SERVICES,
LLC’S MOTION TO EXCLUDE THE TESTIMONY AND
REPORTS OF DR. GARY CRAKES [337] AND DENYING AS
MOOT DEFENDANTS VEOLIA NORTH AMERICA, INC., AND
VEOLIA WATER NORTH AMERICA OPERATING SERVICES,
LLC’S MOTION IN LIMINE TO EXCLUDE TESTIMONY ON
TOPICS PLAINTIFFS’ EXPERTS HAVE DISAVOWED [500]
This is the final opinion in a series addressing the admissibility of
the testimony and reports of eight experts retained by Plaintiffs in
anticipation of the first Flint water bellwether trial, set to begin on
February 15, 2022. Defendants argue that none of these experts can meet
the standards set by Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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Currently before the Court is the motion by Veolia North America,
LLC, Veolia North America, Inc., and Veolia Water North America
Operating Services, LLC (collectively “VNA”) to exclude the testimony
and report of Dr. Gary Crakes (ECF No. 337.) The LAN and LAD
Defendants join VNA’s motion. (ECF No. 344.) For the reasons set forth
below, VNA’s motion to exclude is DENIED.
Also before the Court is VNA’s motion in limine to exclude
testimony on topics Plaintiffs’ experts have disavowed. For the reasons
set forth below, that motion is DENIED AS MOOT.
I.
Background
Dr. Gary Crakes is Plaintiffs’ damages expert. He has two advanced
degrees in economics and is currently an economic consultant at Maher,
Crakes, and Associates. (ECF No. 367-2, PageID.23141.) He holds an
emeritus professorship at Southern Connecticut State University and
has appeared as a damages expert in thousands of lawsuits. His
qualifications as an expert are undisputed.
Dr. Crakes’ reports assess Plaintiffs’ damages by comparing two
“unimpaired scenarios” with two “impaired scenarios” for each Plaintiff.
Depending on the Plaintiff, the unimpaired scenarios assume educational
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achievement of either an associate’s, a college, or a master’s degree.
Similarly, depending on the Plaintiff, the impaired scenarios assume
either a 9-12th grade education or a high school diploma. (See ECF No.
330-67, No. 330-68, No. 330-69, No 330-70.) By relying on national
earnings data from the Census Bureau’s 2019 Annual Social and
Economic Supplement, Dr. Crakes derives a lifetime earning potential
for each scenario, to which a projected 3.5% rate of annual growth is
applied. (E.g. ECF No. 330-67, PageID.16116.) Dr. Crakes then arrives
at his damages estimates by subtracting the lifetime earning figure in
each impaired scenario from the earning figure associated with each
unimpaired scenario.
Dr. Crakes initially included a $5000 yearly cost of care in each of
the impaired scenarios. Because no record evidence supported that
estimate, Plaintiffs have withdrawn it. (ECF No. 367, PageID.23134n3.)
The Court heard oral argument on VNA’s motion to exclude Dr.
Crakes’ testimony on November 2, 2021, and it is fully briefed.
II.
Legal Standard
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The admissibility of expert testimony is governed by Federal Rule
of Evidence 702, which sets forth three requirements: (1) the witness
must be qualified, (2) the testimony must be relevant, and (3) the
testimony must be reliable. Fed. R. Evid. 702; In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). As the Supreme Court
explained in Daubert, Rule 702 imposes a “gatekeeping” obligation on the
courts to ensure that scientific testimony “is not only relevant, but
reliable.” Daubert, 509 U.S. at 589; See also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999).
Daubert provides a non-exclusive list of factors courts may consider
when evaluating reliability: (1) whether the theory or technique at the
basis of the opinion is testable or has been tested, (2) whether it has been
published and subjected to peer review, (3) what the known error rates
are, and (4) whether the theory or technique is generally accepted.
Daubert, 509 U.S. at 593; see also In re Scrap Metal, 527 F.3d at 529
(listing same factors). Not every factor needs to be present in every
instance, and courts may adapt them as appropriate for the facts of an
individual case. Kumho 526 U.S. at 150.
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“Rejection of expert testimony is the exception, rather than the
rule.” United States v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017)
(quoting In re Scrap Metal, 527 F.3d at 529–30)). Nevertheless, the
burden is on Plaintiffs to show by a “preponderance of proof” that the
proffered expert meets the standards of Rule 702 as interpreted by
Daubert. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) (quoting
Daubert, 509 U.S. at 592).
III. Analysis
VNA argues that Dr. Crakes’ testimony should be excluded in its
entirety. First, VNA argues that Dr. Crakes did not use a reliable
methodology to arrive at any of his earnings estimates, primarily because
he used national rather than local data. (ECF No. 330-3, PageID.1426714280.) Second, VNA objects to Dr. Crakes’ use of a 3.5% rate of growth.
(Id., PageID.14281-82.)
For the reasons set forth below, Dr. Crakes’ routine damages
analysis clearly meets the requirements of Rule 702 and Daubert.
A. Reliability of Earnings Estimates
According to VNA, Dr. Crakes’ methodology is unreliable and
speculative because he (1) relied on national rather than Flint-specific
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data, and (2) failed to rely on any objective evidence about Plaintiffs
educational potential.1
Although an expert may not base her damages opinions on
“unsupported speculation,” predictions about someone’s future earning
potential “are necessarily somewhat speculative.” Andler v. Clear
Channel Broadcasting, Inc., 670 F.3d 717, 726-27 (6th Cir. 2012) (quoting
Daubert, 509 U.S. at 589-90.) Accordingly, “an expert’s testimony as to
lost future wages is generally admissible.” Coleman v. Dydula, 139
F.Supp.2d 388, 395 (W.D.N.Y. 2001) (citing Polaino v. Bayer Corp., 122
F.Supp.2d, 63 66-67 (D. Mass. 2000)).
VNA argues that Dr. Crakes’ unimpaired scenarios are so
speculative as to be inadmissible.
According to VNA, Dr. Crakes’
scenarios are entirely speculative and represent statistically unlikely
outcomes for Flint residents, only 4.1% of whom ultimately achieve a
graduate or professional degree. (ECF 330-3, PageID.14270.) Both of
these arguments are fundamentally misguided.
VNA also claims that Dr. Crakes improperly treated assertions by Plaintiffs’
counsel as evidence. It is unsurprising and unproblematic that Plaintiffs’ counsel
discussed his cases with Dr. Crakes. As set forth below, Dr. Crakes properly relied on
Dr. Krishnan’s reports to arrive at his damages figures.
1
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First, Dr. Crakes is Plaintiffs’ damages expert. He will not offer any
opinion about the likelihood Plaintiffs will achieve either the impaired or
unimpaired outcomes. Indeed, Dr. Crakes offers no opinion whatsoever
about Plaintiffs’ educational attainments. That is not his role. Dr. Mira
Krishnan will testify at trial that Plaintiffs are less likely to complete
high school and less likely to complete an advanced degree than they
would have been but-for their neurocognitive injuries.
And she will
testify that Plaintiffs are intelligent and would ordinarily have been able
to achieve a college education. (See ECF No. 456) (reviewing opinions of
Dr. Krishnan); (See also e.g., ECF No. 330-55, PageID.15714 “individuals
at this intellectual level can likewise succeed at a two-year or four-year
college”). Dr. Crakes properly relied on Dr. Krishnan’s representations
and attached a numerical value to each possible outcome, without
offering any testimony about which outcome is the most likely.2 (See ECF
For the same reason, it is not problematic that Dr. Crakes used a 9-12th grade
education and a high school education as his impaired scenarios. It is true that Dr.
Krishnan thinks that it is more likely than not that each Plaintiff will graduate high
school, even though each Plaintiff also has a reduced likelihood of graduating from
high school. The jury will hear this testimony, and it will be able to adjust damages
awards appropriately.
2
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No. 330-67, No. 330-68, No. 330-69, No 330-70.) Accordingly, Dr. Crakes’
opinions are not unduly speculative.
VNA also argues that Dr. Crakes should have obtained a vocational
analysis of Plaintiffs’ educational potential to inform his choice of
unimpaired and impaired scenarios. But, again, Dr. Krishnan is the
expert who will testify to the nature of Plaintiffs’ neurocognitive injuries
and the consequences of those injuries for Plaintiffs’ educational
attainment. Dr. Crakes simply translates her analysis into estimated
damages. The jury is free to believe or disbelieve Dr. Krishnan’s
testimony, and free to adjust Dr. Crakes’ numbers accordingly. In any
event, “[c]ourts routinely reject challenges to the admissibility of expert
testimony based on arguments that the expert failed to take into account
certain data in forming his or her opinions.” Blottin v. Mary Kay, Inc.,
2012 WL 13026814 at *3 (N.D. Tex. Aug. 22, 2012) (rejecting challenges
to damages expert) (citing Browning v. Southwest Research Inst., 2006
WL 6549921 at *2 (W.D. Tex. Aug. 17, 2006) (same, collecting cases)).
Accordingly, there is no reason to exclude Dr. Crakes’ testimony because
he failed to independently verify Plaintiffs’ educational potential.
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Second, VNA’s claim that Dr. Crakes should have relied on local
rather than national data regarding educational attainments and
lifetime earnings is entirely without support in the law. VNA has not
identified a single case to support its view that damages experts are
required to rely only on local data. That is no surprise, for it is common
practice to rely on national data. E.g., May v. William Beaumont Hosp.,
180 Mich. App. 728, 762 (1989) (“it was not improper or unreasonable to
present evidence on what an average semi-skilled or skilled laborer
earns”). As the Court set forth during the oral argument on this motion,
the Mississippi Supreme Court has persuasively explained why a
contrary rule should be rejected:
The conclusion by the Court of Appeals that the income for
the children should be based on some sort of average income
for persons of the community in which they lived, as far as we
can find, has no basis in our law. Additionally, such a method
is just as speculative as basing the recovery on the earning
history of the parents. It is both unfair and prejudicial to
ground the projected future income of a deceased child on
either basis. Both methods result in potentially disparate
recoveries for children from affluent communities or with
affluent parents, as opposed to children from less affluent
areas or with less affluent parents.
Who is to say that a child from the most impoverished part of
the state or with extremely poor parents has less of a future
earnings potential than a child from the wealthiest part of the
state or with wealthy parents? Today's society is much more
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mobile than in the past. Additionally, there are many more
educational and job-training opportunities available for
children as a whole today. We must not assume that
individuals forever remain shackled by the bounds of
community or class. The law loves certainty and economy of
effort, but the law also respects individual aptitudes and
differences.
Greyhound Lines, Inc. v. Sutton, 765 So.2d 1269, 1276-77 (Miss. 2000).
There continues to be “no basis in our law” for requiring damages experts
to rely on local data. Id. VNA’s argument to the contrary is without merit.
Dr. Crakes ultimately provides fairly routine damages estimates for
the four Plaintiffs in this case. There is nothing unusual or inappropriate
about his approach. To be sure, estimating lifetime damages for young
children with neurocognitive harms is a difficult task. After all, such
plaintiffs lack the kind of educational and employment histories from
which damages experts would ordinarily draw. But Daubert does not
prevent children from relying on a damages expert. Instead, even
somewhat speculative damages estimates are ordinarily admissible. See
Andler, 670 F.3d at 727 (acknowledging speculative nature of damages
testimony in lost earnings context); accord Downey v. Strain, 510 F.3d
534, 544 (5th Cir. 2007) (permitting expert to calculate damages “through
intelligent guesswork”); Meinelt v P.F. Chang’s China Bistro, Inc., 787
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F.Supp.2d 643, 656 (S.D. Tex. 2011) (permitting damages expert to testify
despite speculative assumptions). As set forth above, Dr. Crakes’
opinions are not wholly without any basis; nor are they the result of
“unsupported speculation.” Andler, 670 F.3d at 726. Accordingly, they are
admissible.
B. Rate of Growth
VNA separately challenges Dr. Crakes’ use of a 3.5% projected rate
of growth in earnings. According to VNA, Dr. Crakes arbitrarily imposed
an “upwards deviation of approximately 50% from actual historical
trends” on his projected rate of growth. (ECF No. 330-3, PageID.14281.)
This argument is somewhat puzzling, since “actual historical
trends” in fact somewhat exceed Dr. Crakes’ estimation. For instance, the
average growth in workers earnings over the last 25 years has been
approximately 3.51%, and the average growth over the last 35 years has
been 4.36%. (See Social Security Administration, Average Wage Index,
https://www.ssa.gov/oact/cola/awidevelop.html (last accessed Feb. 10,
2022) (“AWI”)). As Dr. Crakes explains in his deposition, it is reasonable
to “look at the longer term historical record” when evaluating a damages
estimate that necessarily reaches “quite a few years out into the future.”
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(ECF 441, PageID.35054.) Because the historical record supports a rate
of growth at or above the number used by Dr. Crakes, his estimate is
reasonable.
VNA for its part treats “actual historical trends” to mean “the
historical trend between the years 2003 to 2018.” (ECF No. 330-2,
PageID.14281.) During that period, the rate of growth was approximately
2.3%. Id. The mere fact that an arbitrary 15-year period with a lower rate
of earnings can be found does not show Dr. Crakes’ analysis to be
speculative.3 Accordingly, Dr. Crakes’ rate of growth estimate is also
admissible.
C. Motion in Limine to Exclude Testimony on Topics
Experts have Disavowed
This ruling resolves the final Daubert challenge to Plaintiffs’
experts. In a motion in limine to exclude testimony on topics experts have
disavowed (ECF No. 500), VNA asks the Court to rule again on the
admissibility of portions of seven of Plaintiffs’ experts, including Dr.
VNA does not argue that Dr. Crakes’ historical data is inaccurate or explain
why he should have relied only on data from the years 2003 through 2018. If VNA
had included the last two years in its estimate, the average rate of growth would have
been significantly higher: in 2021, the rate of growth was 4.5%. (See Bureau of Labor
Statistics, Employment Cost Index December 2021, (Jan 28, 2022)
https://www.bls.gov/news.release/pdf/eci.pdf).
3
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Crakes. The explicit aim of this motion is to obtain a Court order forcing
Plaintiffs to comply with various concessions Plaintiffs made to VNA.
(ECF No. 500, PageID.37466.)
Motions in limine “are meant to deal with discrete evidentiary
issues related to trial.” Dunn ex. rel. Alberry v. State Farm Mut. Auto Ins.
Co., 246 F.R.D. 266, 274-75 (E.D. Mich. 2009) (collecting cases). They are
not vehicles for endless relitigation of Daubert motions, and “orders
requiring compliance with previous court orders or undisputed
concessions are plainly unnecessary.” (ECF No. 667, PageID.43732)
(order denying motion in limine to exclude unsupported theories of
negligence). Accordingly, this motion is denied as moot. The admissibility
of Plaintiffs’ expert testimony is governed by the Court’s nine Daubert
rulings on that testimony.
IV.
Conclusion
For the reasons set forth above, VNA’s motion to exclude Dr. Crakes
is DENIED. VNA’s motion in limine to exclude testimony on topics
experts have disavowed is DENIED AS MOOT.
IT IS SO ORDERED.
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Dated: February 11, 2022
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 11, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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