Ashford et al v. Wal-Mart Stores East, LP

Filing 79

ORDER granting in part and denying in part Defendant Wal-Mart Stores, LP's Motion 59 to Exclude Plaintiffs Expert, Dr. George Carters, Expert Testimony; granting Defendant Wal-Mart Stores, LP's Motion 67 to Strike Dr. Carters Letter in Response to Wal-Marts Motion to Exclude Dr. Carters Expert Testimony. Signed by District Judge Halil S. Ozerden on 01/15/2013 (HM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROSA ASHFORD, and
OTIS ASHFORD
v.

PLAINTIFFS
Civil No. 1:11-cv-57-HSO-JMR

WAL-MART STORES, LP

DEFENDANT

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
DAUBERT MOTION TO EXCLUDE PLAINTIFF’S EXPERT, DR. GEORGE
CARTER’S, EXPERT TESTIMONY, AND GRANTING DEFENDANT’S
MOTION TO STRIKE DR. CARTER’S LETTER IN RESPONSE TO WALMART’S DAUBERT MOTION
BEFORE THE COURT are two motions: Defendant Wal-Mart Stores, LP’s
Daubert Motion [59] to Exclude Plaintiff’s Expert, Dr. George Carter’s, Expert
Testimony, and Defendant’s Motion [67] to Strike Dr. Carter’s Letter in Response to
Wal-Mart’s Motion to Exclude Dr. Carter’s Expert Testimony. Plaintiffs have filed a
Response [62] to Defendant’s Daubert Motion, and Defendant a Reply [65]. Plaintiffs
have also filed a Response [68] to Defendant’s Motion to Strike Dr. Carter’s Letter.
After considering the pleadings on file, the record, and relevant legal authorities, the
Court finds that Defendant’s Motion [67] to Strike Dr. Carter’s Letter in Response to
Wal-Mart’s Motion to Exclude Dr. Carter’s Expert Testimony, should be granted,
and Defendant’s Daubert Motion [59] to Exclude Plaintiff’s Expert, Dr. George
Carter’s, Expert Testimony, should be granted in part and denied in part.
I. FACTS AND PROCEDURAL HISTORY
This case arises from an alleged slip and fall, which occurred on March 15,
2009, at Defendant’s Wal-Mart store in Pascagoula, Mississippi. Plaintiff Rosa

Ashford contends that she sustained injuries when she slipped and fell on a puddle
of rainwater. Pl.’s Compl. [1-2] at pp. 2, 5-6. She alleges the rainwater was leaking
from the roof or an air conditioning duct. Id. at p. 2. Plaintiffs have designated
George H. Carter, Ph.D, as an expert economist to testify as to Ms. Ashford’s alleged
economic losses. Pls.’ Design. of Experts [6] at p. 2; Pls.’ Suppl. Design. of Experts
[41] at p. 2. Defendant has moved to exclude Dr. Carter’s opinions regarding Ms.
Ashford’s loss of wages, fringe benefits, and household services.
With their Response to Defendant’s Motion to exclude Dr. Carter’s testimony,
Plaintiffs submitted a letter written by Dr. Carter. Letter [62-1], Ex. A to Pls.’ Resp.
[62] to Def.’s Mot. to Strike. Dr. Carter states in the letter that it is written in
response to Defendant’s Daubert Motion. Id. at p. 1. Defendant has moved to strike
Dr. Carter’s letter, contending that it is an improper attempt by Plaintiffs to
supplement Dr. Carter’s Report after the expiration of the discovery deadline, and
“to explain and correct the deficiencies pointed out in Wal-Mart’s Daubert Motion.”
Def.’s Mot. to Strike [67] at p. 3. In response, Plaintiffs maintain that Dr. Carter’s
letter should not be stricken because it is not a supplementation, but instead an
elaboration and explanation of “the facts, data, principles, and methods to which Dr.
Carter has already submitted [] his opinions and findings in his original report.”
Pls.’ Resp. [68] to Def.’s Mot. to Strike at pp. 1-2. Plaintiffs contend that “Dr.
Carter’s original report was in no way incomplete.” Id. at p. 2 (emphasis supplied).

2

II. DISCUSSION
A.

Defendant’s Motion to Strike Dr. Carter’s Letter in Response to Wal-Mart’s
Motion to Exclude Dr. Carter’s Expert Testimony
1.

Legal Standard

Unless otherwise stipulated or ordered by the Court, expert designations must
be accompanied by a written report if the witness is one retained or specially
employed to provide expert testimony. FED. R. CIV. P. 26(a)(2)(B). In addition to
other information, “[t]he report must contain 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). “A party must make these disclosures at the times and in the
sequence that the court orders.” FED. R. CIV. P. 26(a)(2)(D). Local Uniform Civil
Rule 26(a)(2) provides:
A party must make full and complete disclosure as required
by FED. R. CIV. P. 26(a)(2) and L.U.Civ.R. 26(a)(2)(D) no later
than the time specified in the case management order.
Absent a finding of just cause, failure to make full expert
disclosures by the expert designation deadline is grounds for
prohibiting introduction of that evidence at trial.
L.U. CIV. R. 26(a)(2)(D). “A party is under a duty to supplement disclosures at
appropriate intervals under FED. R. CIV. P. 26(e) and in no event later than the
discovery deadline established by the case management order.” L.U. CIV. R. 26(a)(5).
“[T]he purpose of the discovery rules regarding experts is to prevent ambush at trial
with wholly new opinions and/or bases or examples thereof.” Brawhaw v. Mariner
Health Care, Inc., No. 2:04CV322-P-B, 2008 WL 2004707, *4 (S.D. Miss. May 8,
2008); see also Reed v. Iowa Marine and Repair Corp., 16 F.3d 82, 85 (5th Cir.
3

1994)(the purpose of FED. R. CIV. P. 26(e) is to prevent prejudice and surprise).
2.

Analysis

The discovery deadline was August 1, 2012. Dr. Carter’s letter in response to
Defendant’s Daubert Motion was written on August 21, 2012, and submitted to
Defendant on September 4, 2012. Dr. Carter’s letter is properly characterized as a
supplementation to his Report, and because it was submitted after the discovery
deadline, it is untimely. L.U. CIV. R. 26(a)(5). Accordingly, Dr. Carter’s August 21,
2012, letter should be stricken, and it will not be considered when deciding
Defendant’s Daubert Motion [59] to Exclude Plaintiff’s Expert, Dr. George Carter’s,
Expert Testimony.
B.

Defendant’s Motion to Exclude Plaintiff’s Expert, Dr. George Carter’s, Expert
Testimony
1.

Legal Standard

“The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible.” FED. R. EVID. 104(a). “The
party offering the expert must prove by a preponderance of the evidence that the
proffered testimony satisfies the rule 702 test.” Mathis v. Exxon, 302 F.3d 448, 45960 (5th Cir. 2002). Federal Rule of Evidence 702 provides:
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;

4

(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.
The Court functions as a gatekeeper and ensures that an expert is properly
qualified, and that his testimony is both reliable and relevant. Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)(relying on Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 590-93 (1993)); see United States v. McMillan, 600 F.3d
434, 456 (5th Cir. 2010). Expert testimony is relevant when it relates to any issue in
the case. Daubert, 509 U.S. at 591. Reliability is determined by assessing “whether
the reasoning or methodology underlying the testimony is scientifically valid.” Id. at
592-93.
To be reliable, an expert opinion must be based on sufficient facts and data,
and be the product of reliable principles and methods. FED. R. EVID. 702(b) and (c).
Otherwise, it is “‘unsupported speculation or subjective belief.’” Johnson v. Arkema,
Inc., 685 F.3d 452, 459 (5th Cir. 2012)(citing Daubert, 509 U.S. at 590). “The court
should ‘make certain that an expert, whether basing testimony upon professional
studies or personal experiences, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.’”
Hodges v. Mack Trucks, Inc., 474 F.3d 188, (5th Cir. 2006)(citing Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). Daubert “provides an illustrative list
5

of factors that may aid a court in evaluating reliability.” Mathis, 302 F.3d at 460.
These factors include
(1) whether the theory or technique has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3)
the known or potential rate of error of the method used and the existence
and maintenance of standards controlling the technique’s operation; and
(4) whether the theory or method has been generally accepted in the
scientific community.
Kumho, 526 U.S. at 149-50. “These factors are not mandatory or exclusive; the
district court must decide whether the factors discussed in Daubert are appropriate,
use them as a starting point, and then ascertain if other factors should be
considered.” Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). “But the
existence of sufficient facts and a reliable methodology is in all instances
mandatory.” Id.
2.

Analysis
a.

Dr. Carter’s Opinion Regarding Loss of Wages

Defendant contends that Dr. Carter’s opinion regarding Ms. Ashford’s alleged
loss of wages is unreliable. Def.’s Mem. [60] in Supp. of Mot. to Exclude [59] at p. 5.
Dr. Carter calculates Ms. Ashford’s loss of wages by considering her earnings from
2006 to 2008, as gleaned from her W-2's. Dr. Carter’s Expert Report [60-1] at p. 6,
Ex. A to Def.’s Mem. [60] in Supp. of Mot. to Strike. He does not consider Ms.
Ashford’s earnings from 2005, although she was working for the same employer in
2005, and her earnings from 2005 were available to him. Id. Defendant argues that
Dr. Carter should have included Ms. Ashford’s earnings from 2005 in his lost wages

6

calculations: “Obviously, if Dr. Carter used all of the wage data available, the
average wage calculation would be reduced significantly and the derivative
calculations based upon the reduced four-year average wage would likewise be
significantly reduced.” Def.’s Mem. [60] in Supp. of Mot. to Exclude [59] at p. 6.
Dr. Carter will be allowed to testify as to Ms. Ashford’s alleged loss of wages.
The flaws Defendant perceives in Dr. Carter’s exclusion of Ms. Ashford’s 2005
earnings go to the weight of Dr. Carter’s opinion, and not its admissibility. See
Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1165 (Miss. 1992). However, Dr.
Carter’s opinion that Ms. Ashford has suffered a loss of income “continuing through
her work life expectancy” should be excluded because it is based upon Dr. John
McCloskey’s assumption that Ms. Ashford is totally and permanently unemployable.
See Dr. Carter’s Expert Report [60-1] at p. 6. Dr. McCloskey’s opinion in this regard
has already been excluded as unreliable. Order [70]. Because Dr. Carter’s opinion
that Ms. Ashford has suffered a total and permanent loss of wages is based on an
unreliable premise, this particular opinion should be excluded. However, Dr. Carter
may otherwise testify to Plaintiff’s alleged loss of wages.
b.

Dr. Carter’s Opinions Regarding Ms. Ashford’s Loss of Fringe
Benefits

Dr. Carter calculates the monetary value of Ms. Ashford’s total discounted loss
of fringe benefits as $61,039.00. Dr. Carter’s Expert Report [60-1] at p. 11. This
calculation assumes that Ms. Ashford has lost fringe benefits for the remainder of
her work life expectancy. Id. Dr. Carter’s Report provides that Ms. Ashford’s

7

“employer contributed to fringe benefits of employment,” and that United States
labor statistics compiled by the U.S. Census Bureau were utilized in forming this
opinion. Id. The Report states that Ms. Ashford “is assumed to receive typical
employer-provided fringe benefits of employment,” including insurance, retirement,
unemployment compensation, and workers’ compensation benefits. Id. at pp. 11-12.
Dr. Carter’s Report does not provide the name of Ms. Ashford’s employer, but both
Plaintiffs’ and Defendant’s vocational experts’ Reports acknowledge that Ms. Ashford
was employed by Singing River Health System from 2005 to 2009. Expert Report of
Pete Mills [60-7] at p. 3; Expert Report of Leon Tingle [60-6] at p. 2.
Defendant argues that Dr. Carter’s opinions regarding Ms. Ashford’s loss of
fringe benefits should be excluded because “there is no evidence Plaintiff received
any fringe benefits of the type alluded to by Dr. Carter in his report and he cites to
no evidentiary support in the record either supporting the assumption that Mrs.
Ashford received fringe benefits or supporting the type or amount of fringe benefits
she received.” Def.’s Mem. [60] in Supp. of Mot. to Exclude at p. 11 (emphasis
supplied). Dr. Carter’s Report discloses the factual predicate for his opinion
regarding the alleged loss of fringe benefits, namely the fact that her employer
provided benefits and United States labor statistics evaluating typical employer
provided fringe benefits. Whether Ms. Ashford participated in her employer’s
elective benefit programs and whether her level of participation should have affected
Dr. Carter’s conclusion, goes to the weight of Dr. Carter’s opinion and not its
admissibility. Dr. Carter should be allowed to testify as to Ms. Ashford’s alleged loss
8

of fringe benefits. However, his opinion that Ms. Ashford has incurred a complete
loss of fringe benefits through her work life expectancy should be excluded because it
is based upon Dr. John McCloskey’s assumption that Ms. Ashford is totally and
permanently unemployable. Dr. McCloskey’s opinion in this regard has already
been excluded as unreliable. Order [70]. Because Dr. Carter’s opinion that Ms.
Ashford has suffered a complete loss of fringe benefits because she is totally and
permanently unemployable, is based on an unreliable premise, this particular
opinion should be excluded. However, Dr. Carter may otherwise testify as to
Plaintiff’s alleged loss of fringe benefits.
c.

Dr. Carter’s Opinion Regarding Loss of Household Services

Dr. Carter calculates the total discounted monetary value of lost household
services as $281,649.00. Dr. Carter’s Expert Report [60-1] at p. 13. His Report
provides that “[Ms. Ashford] and her husband will testify to a 75% loss in household
services provision.” Id. at p. 14. The Report states that Dr. Carter calculated the
monetary value of Ms. Ashford’s household services using the Plaintiffs’ expected
testimony that her household services have been diminished by 75 percent, and a
study entitled THE DOLLAR VALUE OF A DAY: 2010 DOLLAR VALUATION, published by
Expectancy Data (Shawnee Mission, Kansas, 2011).
Defendant argues that this opinion should be excluded because Dr. Carter is
not qualified to make such a determination. Defendant bases its argument on Davis
v. ROCOR Intern., No. 3:00-CV-864-B-N, 226 F. Supp. 2d 839, 842 (S.D. Miss. 2002),
a case where the Court excluded an economist’s opinion as to the monetary value of
9

lost household services. In Davis, the Court excluded the economist’s opinion
because the economist drew his own conclusion regarding the percentage of lost
household services. Id. The Court found that the economist was not qualified to
determine the extent of lost household services, and therefore, his calculations had
an unreliable factual basis. Id.
Here, the percentage of alleged lost household services was not determined by
Dr. Carter. In making his monetary calculations, Dr. Carter relied on Plaintiffs’
expected testimony that Ms. Ashford’s household services have been diminished by
75 percent. Information regarding Ms. Ashford’s performance of household duties is
within Plaintiffs’ personal knowledge. Having been presented no authority that lay
testimony cannot constitute a sufficient foundation for an economist’s calculations of
the value of household services, or that an expert may not rely on such expected
testimony, the Court finds that Plaintiffs’ expected testimony provides a sufficient
factual foundation for Dr. Carter’s opinion regarding the value of the alleged lost
household services.
Defendant contends that Dr. Carter’s opinion regarding loss of household
services should also be excluded because Plaintiffs have not established that THE
DOLLAR VALUE OF A DAY is a reliable source among economists. This study, however,
appears to be commonly relied upon by economists when calculating the economic
value of lost household services. See Thomas R. Ireland, Uses of the American Time
Use Survey to Measure Household Services: What Works and Does Not Work, 8 J.
Legal Econ. 61 (Oct. 2011). Defendant further argues that Dr. Carter’s opinion is
10

not reliable because he utilizes estimates from tables contained in THE DOLLAR
VALUE OF A DAY, instead of basing his calculations on the specific amount of time
that Ms. Ashford engaged in particular household tasks prior to the date of her
alleged injuries. Defendant’s criticism, in this regard, affects the weight to be
assigned to Dr. Carter’s testimony, and not its admissibility. See Viterbo v. Dow
Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)( “As a general rule, questions relating
to the bases and sources of an expert’s opinion affect the weight to be assigned that
opinion rather than its admissibility and should be left for the jury’s consideration.”).
In sum, Dr. Carter should be allowed to testify as to the monetary value of the
alleged loss of household services.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant WalMart Stores, LP’s Motion [67] to Strike Dr. Carter’s Letter in Response to WalMart’s Motion to Exclude Dr. Carter’s Expert Testimony, is GRANTED. Dr. George
H. Carter’s August 21, 2012, letter, submitted by Plaintiffs Rosa and Otis Ashford
after expiration of the discovery deadline, is stricken.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Defendant WalMart Stores, LP’s Daubert Motion [59] to Exclude Plaintiff’s Expert, Dr. George
Carter’s, Expert Testimony, is GRANTED IN PART AND DENIED IN PART. Dr.
Carter’s opinion that Plaintiff Rosa Ashford has suffered $204,669.00 in future lost
wages, which is based on the premise that she is totally and permanently
unemployable, will be excluded. Dr. Carter’s opinion that Ms. Ashford has suffered
11

$49,526.00 in future lost fringe benefits, which is based on the premise that she is
totally and permanently unemployable, will be excluded. In all other respects,
Defendant’s Motion [59], is denied.
SO ORDERED AND ADJUDGED, this the 15th day of January, 2013.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

12