Holloway v. Winkler, Inc. et al

Filing 27

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the Daubert Motion to Exclude Expert Opinions of Rebecca Summary filed by Defendant Winkler, Inc., d/b/a "J. Winkler & Sons" (ECF No. 20 ) is DENIED. Signed by District Judge Ronnie L. White on 01/25/2019. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NICOLE HOLLOWAY,
Plaintiff,
V.

WINKLER, INC., d/b/a
"J. WINKER & SONS," et al.,
Defendants.

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No. 4: 17CV2208 RL W

MEMORANDUM AND ORDER
This matter is before the Court on the Daubert Motion to Exclude Expert Opinions of
Rebecca Summary filed by Defendant Winkler, Inc., d/b/a "J. Winkler & Sons" (ECF No. 20).
The motion is fully briefed and ready for disposition. Upon review of the motion, related
memoranda, and exhibits, the Court will deny Defendant's motion.
BACKGROUND
On April 20, 2015, Plaintiff Nicole Holloway was involved in an automobile accident.
(Compl. if 1, ECF No. 1) Plaintiff alleges that Defendant Scott Litkenhus ("Litkenhus"), who
was operating a tractor-trailer in the course of his employment with Defendant Winkler, Inc.
("Winkler"), violated a stop sign and struck Plaintiffs vehicle. (Id.) Plaintiff further alleges that
she sustained serious injuries as a result of the collision, including injuries to her arm, ribs, knee,
and low back. (Id.) On August 4, 2017, Plaintiff filed a Complaint in federal court, alleging
negligence and negligence per se on the part of Litkenhus (Counts I and II) and vicarious liability
against Winkler for Litkenhus' negligence and negligence per se (Counts III and IV). (Id. at iii!
38-60) Plaintiff claims that she has sustained economic losses consisting of medical expenses

and lost wages and will continue to sustain medical expenses, wage losses, and loss of earning
capacity. (Id. at if 34)
To support this claim, Plaintiff has designated an expert, Rebecca M. Summary, Ph.D., 1
to testify regarding Plaintiffs lost income, lost household services, loss on sale of business, and
total economic loss. (Pl.'s Ex. 2, ECF No. 21-2) Dr. Summary maintains in her Rule 26 Report
that Plaintiff, who previously owned and worked at a diner, would have worked at the diner until
age 70, would have performed household services until age 74.5, and sold the diner under duress
for a loss. (Id.) Dr. Summary further claims that the accident and Plaintiffs resulting injuries
caused losses in these areas. (Id.)

LEGAL STANDARD
The admission of expert testimony in federal court is governed by Rule 702 of the
Federal Rules of Evidence:
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. A district court acts as a "gatekeeper" when screening expert testimony for
relevance and reliability. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993);
Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). "To satisfy the reliability
requirement, the party offering the expert testimony 'must show by a preponderance of the
evidence both that the expert is qualified to render the opinion and that the methodology

1

Rebecca M. Summary, Ph.D., is a professor of economics and chairperson of the Department of
Economics and Finance at Southeast Missouri State University located in Cape Girardeau,
Missouri. (Summary Dep. 9:20-22, ECF No. 20-2)
2

underlying his conclusions is scientifically valid."' Barrett v. Rhodia, Inc., 606 F.3d 975, 980
(8th Cir. 2010) (quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)).
"To satisfy the relevance requirement, the proponent must show that the expert's reasoning or
methodology was applied properly to the facts at issue." Id. The trial court has broad discretion
concerning the admission of expert testimony, and such decisions will not be overturned on
appeal absent an abuse of discretion. Peitzmeier v. Hennessy Indus., Inc!., 97 F.3d 293, 296 (8th
Cir. 1996). "There is no single requirement for admissibility as long as the proffer indicates that
the expert evidence is reliable and relevant." Russell, 702 F.3d at 456-57 (quotation omitted).
"An expert's opinion should be excluded only if that opinion is so fundamentally unsupported

that it can offer no assistance to the jury." Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir.
2007) (internal quotation marks and citation omitted); see also Minn. Supply Co. v. Raymond
Corp., 472 F.3d 524, 544 (8th Cir. 2006) (quotation omitted). Doubts regarding the usefulness

of an expert's testimony should be resolved in favor of admissibility. Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (citation omitted). '"The exclusion of an expert's

opinion is proper only if it is so fundamentally unsupported that it can offer no assistance to the

jury."' Sappington v. Skyjack, Inc., 512 F.3d 440, 448 (8th Cir. 2008) (quoting Woodv. Minn.
Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997)).

DISCUSSION
Winkler asserts that the opinions of Plaintiffs expert, Dr. Rebecca Summary, are based
on assumptions formed from umeliable, undocumented information conveyed by Plaintiff and
not based on generally accepted peer-reviewed economic methodology or review of any
pertinent information. Therefore, Winkler argues that the Court should exclude such expert
testimony as umeliable.

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Specifically, Winkler claims that the Court should exclude Dr. Summary's testimony
regarding Plaintiffs lost wages and lost earning capacity because the opinions are not supported
by documented information or proper assumptions. Winkler contends that Dr. Summary's
opinions are not based on Plaintiffs actual income or earnings but are instead based on an
irrelevant and inaccurate hypothetical scenario wherein Plaintiffs diner would resume
profitability and Plaintiff would resume drawing a wage from the profits. Winkler further claims
that Plaintiffs tax records do not reflect an annual average income of $26,000 as calculated by
Dr. Summary.
In addition, Winkler asserts that Dr. Summary wrongly assumes that Plaintiff would
return to working at the capacity she worked prior to filing for disability related to scoliosis in
2012. Winkler contends that Dr. Summary's opinion rests on an assumption that Plaintiffs
scoliosis will improve such that she would no longer need the hours per week reduction taken
before the accident. Further, Winkler maintains that Dr. Summary's opinion that Plaintiff could
work 60-hour weeks at the diner is contradicted by her finding that Plaintiffs disability would
decrease the amount Plaintiff could perform household services.
Finally, Winkler argues that Dr. Summary does not rely on documented facts but instead
uses baseless assumptions to opine regarding the diner's profitability and depreciation, Plaintiffs
rental income from the attached beauty and barber shop, and loss on the sale of the diner under
duress. Winkler contends that Dr. Summary's testimony should be excluded because it is based
on incomplete information and faulty assumptions and will only serve to confuse the jury. In
response, Plaintiff asserts that Winkler merely attacks the factual basis of Dr. Summary's
opinion, which Winkler can dispute during cross-examination and with its own expert witness.

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The Court finds that Dr. Summary's opinions are based on sufficient facts or data and are
the product ofreliable principles and methods. Although Dr. Summary's methodology and
conclusions may be subject to debate, the opinions are relevant and will assist the finder of fact.
Dr. Summary is qualified by training and experience, and her opinions are reliable in that they
are based on economic principles generally accepted in the economic community, including life
expectancy tables and yearly dollar valuations. More importantly, Dr. Summary's methodology
and conclusions will be subject to vigorous cross examination because Winkler has presented its
own expert with different conclusions. Moreover, Dr. Summary's alleged failure to base her
opinions on proper facts and figures goes to the credibility of her testimony and not admissibility
of her expert opinion. See In re Viagra Prod. Liab. Litig., 572 F. Supp. 2d 1071, 1077 (D. Minn.
2008) (stating that the general rule in Daubert motions is that the factual basis of an expert
opinion goes to the credibility of the testimony and not to the admissibility); see also Hanrahan
v. Wyeth, Inc., No. 4:04CV01255 ERW, 2012 WL 2395986, at *4 (E.D. Mo. June 25, 2012)

("Raising questions about, and exposing gaps in, [Dr. Summary's] analyses and conclusions is a
task for Defendants to perform in front of a jury.").
The Court concludes that Dr. Summary's testimony will aid the finder of fact, and any
deficiencies in her opinion will be addressed by cross examination of Dr. Summary and the
examination of Winkler's expert, John Ward Economics. 2 As aptly stated by the Eighth Circuit
Court of Appeals in Lauzon v. Senco Prod., Inc.:
It is far better where, ... there exists a close case ... to allow the expert opinion

and ifthe court remains unconvinced, allow the jury to pass on the evidence.
Depending on the verdict, ... the trial court can always refer to Federal Rule of
Civil Procedure 50(b) and grant a judgment as a matter of law or a new trial.

Winkler has attached to the Daubert motion a Personal Injury Economic Loss Estimation from
John Ward Economics that explicitly disputes Dr. Summary's report. (ECF No. 20-3)

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270 F.3d 681, 695-96 (8th Cir. 2001) (footnote omitted). Therefore, the Court will deny
Defendant Winkler's motion and allow Dr. Summary to testify.
According! y,

IT IS HEREBY ORDERED that the Daubert Motion to Exclude Expert Opinions of
Rebecca Summary filed by Defendant Winkler, Inc., d/b/a "J. Winkler & Sons" (ECF No. 20) is

DENIED.
Dated this 25th day of January, 2019.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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