Sorrells v. ADT, LLC

Filing 36

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motions to exclude opinions and testimony of Defendant's experts Timothy Lalk and Sharron Hughes are GRANTED. (Doc. Nos. 32 & 34 .) Signed by District Judge Audrey G. Fleissig on June 23, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM A SORRELLS,
Plaintiff,
v.
ADT, LLC,
Defendant.

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No. 4:14-CV-00378-AGF

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff’s unopposed motions to exclude
opinions and testimony of Defendant’s experts Timothy Lalk and Sharron Hughes. For the
reasons set forth below, these motions shall be granted.
BACKGROUND
This case arises out of a traffic accident on December 12, 2013, in which one of
Defendant’s employees rear-ended Plaintiff’s vehicle, allegedly causing severe injuries
which necessitated emergency surgery and resulted in traumatic brain damage to Plaintiff.
Plaintiff filed suit in this Court on February 26, 2014, on the basis of 28 U.S.C. § 1332
diversity jurisdiction, alleging that Defendant’s employee was acting in the scope of his
employment at the time of the accident, and asserting state-law negligence claims against
Defendant as his employer.
One of Defendant’s experts is Timothy Lalk, a vocational rehabilitation specialist,
retained to provide opinions regarding Plaintiff’s potential rehabilitation. Lalk stated in
his Preliminary Vocational Rehabilitation Report, dated April 1, 2015, and at his
deposition on May 19, 2015, that he was unable to conduct a vocational rehabilitation

evaluation on Plaintiff because Plaintiff has not undergone therapy, and thus Lalk lacked
sufficient information on which to form a professional opinion. (Doc. No. 33-2 at 6.)
Based on this testimony, on June 8, 2015, Plaintiff moved to exclude the testimony of Lalk
under Federal Rule of Evidence 702, arguing that Lalk lacks sufficient data to form a
professional opinion on Plaintiff’s vocational rehabilitation. Plaintiff argues that Lalk’s
remaining testimony, that no one can properly evaluate Plaintiff’s potential for vocational
rehabilitation until he has further therapy, is irrelevant and improper as it comments on the
credibility of other experts to testify on this matter. Defendant did not respond to
Plaintiff’s motion, and the time to do so has passed.
The other expert retained by Defendant, who is the subject of the second motion to
exclude, is Sharron Hughes, a nurse case manager who was retained to evaluate and
provide opinions on Plaintiff’s Life Care Plan (“LCP”). In her report, dated April 10,
2015, Hugues testified that she was unable to fully evaluate Plaintiff’s LCP and determine
the type of care he will likely require in the future because he has not undergone certain
rehabilitation therapies and evaluations. (Doc. No. 35-1 at 2.) On June 8, 2015, Plaintiff
moved to exclude the testimony of Hughes under Rule 702, raising nearly identical
arguments as those raised with respect to Lalk. Defendant did not respond to this motion
either, and the time to do so has passed.
DISCUSSION
The admission of expert testimony in federal court is governed by Federal Rule of
Evidence 702. Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006). Rule 702
provides:

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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. The rule was amended in 2000 in response to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), which charged trial judges with a
“gatekeeping” role to exclude unhelpful and unreliable expert testimony.
“As a general rule, the factual basis of an expert opinion goes to the credibility of
the testimony, not the admissibility, and it is up to the opposing party to examine the
factual basis for the opinion in cross-examination.” First Union Nat’l Bank v. Benham,
423 F.3d 855, 862 (8th Cir. 2005). “Only if the expert’s opinion is so fundamentally
unsupported that it can offer no assistance to the jury must such testimony be excluded.”
Id.
Here, both experts have themselves stated that they lack sufficient facts upon which
to form the opinions for which they were retained. Plaintiff has shown, and Defendant has
not rebutted, that the experts cannot, based on the facts currently available, give any
opinions which are both relevant to this case and properly admissible under Rule 702. See
Fed. R. Evid. 702(b).

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motions to exclude opinions and
testimony of Defendant’s experts Timothy Lalk and Sharron Hughes are GRANTED.
(Doc. Nos. 32 & 34.)
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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of June, 2015.

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