Rugh v. Fedex Freight, Inc. et al

Filing 54

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants FedEx Freight, Inc. and David Stevens' Joint Daubert Motion to Exclude the Testimony of Adam J. Sky, M.D. 41 is DENIED. IT IS FURTHER ORDERED that FedEx Freight, Inc. and David Stevens' Joint Daubert Motion to Exclude the Portion of Testimony of Kristin K. Kucsma and Kenneth T. Betz Regarding Lost Income 43 is DENIED. SEE ORDER FOR DETAILS. Signed by District Judge John A. Ross on 11/17/2022. (CLT)

Case: 4:20-cv-01566-JAR Doc. #: 54 Filed: 11/17/22 Page: 1 of 8 PageID #: 476

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANGELA RUGH, as mother of
Audrey Lynn Lawson, deceased,
Plaintiff,
v.
FEDEX FREIGHT, INC., and
DAVID K. STEVENS,
Defendants/Third Party Plaintiffs,
v.
DAVID SLEDD,
Third Party Defendant.

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No. 4:20-CV-01566 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants FedEx Freight, Inc. (“FedEx”) and David
Stevens (“Stevens”)’s Joint Daubert Motions to Exclude the Testimony of Adam J. Sky, M.D.
(Doc. No. 41) and Kristin K. Kucsma and Kenneth T. Betz (Doc. No. 43). The motions are fully
briefed and ready for disposition.
Background
Plaintiff brings this action against FedEx and Stevens (collectively “Defendants”) arising
out of the death of her daughter, Audrey Lawson (“Lawson”), in a motor vehicle accident on
February 28, 2019. On that date, Stevens was operating a tractor-trailer owned by FedEx on
northbound U.S. Route 67 when he collided with the vehicle in which Lawson was a passenger,
killing her. Plaintiff seeks damages under Missouri’s wrongful death statute, R.S. Mo. § 537.080,
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for, inter alia, the loss of her daughter’s “services, love, care, comfort, society, companionship,
support, and counsel.” (Amended Complaint (“AC”), Doc. No. 7 at ¶¶ 12, 21, 29). Plaintiff has
designated psychiatrist Adam J. Sky, M.D., and economists Kristin K. Kucsma and Kenneth T.
Betz to provide expert opinions in this case.
Legal standard
The admission of expert testimony in federal court is governed by Federal Rule of
Evidence 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
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 Court in Daubert emphasized that the inquiry required by FRE 702 is intended to be
flexible. 509 U.S. at 594. The Daubert analysis was extended to all expert testimony, as opposed
to only “scientific” testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 135, 147 (1999).
Due to the liberalization of expert testimony admission standards signaled by Daubert and its
progeny, and the codification of this trend by FRE 702, the Eighth Circuit has held that expert
testimony should be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557,
562 (8th Cir. 2014) (citing United States v. Finch, 630 F.3d 1057, 1062 (8th Cir. 2011) (doubts
about usefulness of expert testimony are resolved in favor of admissibility)); Robinson v. GEICO

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Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (expert testimony should be admitted if it
advances the trier of fact’s understanding “to any degree”); Lauzon v. Senco Prod., Inc., 270
F.3d 681, 686 (8th Cir. 2001) (FRE 702 “clearly is one of admissibility rather than exclusion”)
(quotations omitted). As long as the expert testimony rests upon “good grounds, based on what is
known,” it should be tested by the adversary process with competing expert testimony and crossexamination, rather than excluded at the outset. Id. (citing Daubert, 509 U.S. at 596). Exclusion
of an expert opinion is proper “only if it is so fundamentally unsupported that it can offer no
assistance to the jury.” Wood v. Minnesota Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir.
1997) (citation and quotation marks omitted).
Motion to exclude opinions and testimony of Dr. Sky
Plaintiff designated Dr. Sky as a retained expert “expected to testify concerning the effect
that her daughter’s death has had on her from a psychiatric standpoint.” (Doc. No. 42-2 at 2).
Dr. Sky performed an independent psychiatric evaluation of Plaintiff on February 11, 2022
during which Plaintiff reported that she had arrived at the scene of the accident and learned of
her daughter’s death. In his report Dr. Sky opines that Plaintiff has developed posttraumatic
stress disorder (PTSD) and a major depressive disorder with anxious distress “[p]ertaining to and
as a direct result of witnessing the aftermath of her daughter’s death as a result of the motor
vehicle accident of February 28, 2019.” (Doc. No. 40-1 at 6-7). He further concludes, “It is my
opinion to a reasonable degree of medical certainty that the prevailing and predominant cause of
[Plaintiff’s] current psychiatric symptoms and diagnoses was her experiences as a result of death
of and witnessing the aftermath of the death of her daughter on February 28, 2019.” (Id. at 7).

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Defendants do not dispute Dr. Sky’s qualifications. 1 Rather, Defendants argue that Dr.
Sky’s opinions regarding Plaintiff’s alleged PTSD and major depressive disorder relate to
damages for grief and bereavement, which are not recoverable as part of a wrongful death claim.
See R.S. Mo. § 537.090 (“The mitigating or aggravating circumstances attending the death may
be considered by the trier of the facts, but damages for grief and bereavement by reason of the
death shall not be recoverable.”). As such, Dr. Sky’s opinions and testimony will not assist the
trier of fact to understand the evidence or determine a fact in issue and are, therefore, not
relevant. Defendants further argue that even if such damages might be recoverable upon pleading
and proving a claim for negligent infliction of emotional distress, no such claim has been
asserted by Plaintiff.
In response, Plaintiff argues that Dr. Sky has offered appropriate qualified opinions
concerning the loss she has suffered as a result of her daughter’s death, including her daughter’s
companionship, comfort, and counsel as defined from a psychiatric perspective (see Sky Depo.,
Doc. No. 50-4 at 56:2-9; 56:14-57:11; 59:13-60:2), all of which are recoverable under Missouri’s
wrongful death statute. Defendants reply that neither Dr. Sky’s report nor his testimony
establishes the relevance of his diagnoses of PTSD and major depressive disorder to any
compensable damages under R.S. Mo. § 537.090, particularly given his testimony that the loss of
companionship, comfort, counsel, and support, are not criteria for those diagnoses. (Sky Depo.,
Doc. No. 53-1 at 64:16-65:7). In further reply, Defendants argue that whether Plaintiff lost the

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Dr. Sky is a board-certified psychiatrist licensed in the State of Missouri since 1988. He has been an
Assistant Clinical Professor in the Department of Psychiatry and Human Behavior at Saint Louis
University from 1992 to present; a Preceptor at St. Mary’s Internal Medicine Residency Program from
1997 to date; a Preceptor at Washington University School of Medicine from 2006 to date; the Medical
Director of the Department of Psychology at SSM St. Mary’s Health Center from 1999 to date; and from
2001 to date, has resumed private psychiatric practice. Dr. Sky is a member of the American Medical
Association, the American Psychiatric Association, and the Eastern Missouri Psychiatric Association.
(Sky Curriculum Vitae, Doc. No. 50-3).
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value of her daughter’s companionship, comfort, counsel, and support is not a matter requiring
expert testimony as it is a fact question within the understanding of the jury.
A district court has “great latitude” in determining whether expert testimony meets the
requisites of FRE 702.” Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 573 (8th Cir. 2008). In
ascertaining whether expert testimony will reliably aid the trier of fact, the Court should examine
factors pertinent to the case, including whether the proposed expert sufficiently connects the
proposed testimony with the facts of the case. Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d
638, 643 (8th Cir. 2009) (internal quotation marks and citation omitted). Section 537.090 “is
clear that in determining damages, the fact finder considers losses with references to the
particular persons on whose behalf the suit was brought and the relationship of the deceased with
those particular persons.” Evans v. FirstFleet, Inc., 345 S.W.3d 297, 305 (Mo. Ct. App. 2011)
(quoting Call v. Heard, 925 S.W.2d 840, 851 (Mo. banc 1996)). The physical, emotional, and
psychological relationship between a parent and child must be considered when computing the
loss of companionship, comfort, counsel, and support of a child for a parent. Id. (citing
Henderson v. Fields, 68 S.W.3d 455, 486 (Mo. Ct. App. 2001)).
In the Court’s view, expert psychiatric testimony describing the effect of the injury on the
parent-child relationship may be important in establishing the nature and extent of the plaintiff’s
loss. See, e.g., Gaither by & through Chalfin v. City of Tulsa, 664 P.2d 1026 (Okla. 1983) (in
action for wrongful death of child, trial court properly admitted testimony of mother’s
psychiatrist relative to her emotional suffering for purposes of proving destruction of parentchild relationship, loss of love and companionship, and emotional suffering). “This testimony is
helpful to: (i) provide a reasonably reliable basis for consideration of an award of damages; (ii)
prevent the trier of fact from relying on mere speculation and conjecture; and (iii) prevent resort

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to legal assumptions and conclusion which have little or no supporting medical or other
reasonably reliable data.” Id. at 1030 (citing Wilson v. Lund, 491 P.2d 1287, 1290, 1293 (Wash.
1971)).
The Court finds Dr. Sky’s opinions relevant and admissible on the issues concerning the
effect of the injury on the parent-child relationship as well as the nature and extent of Plaintiff’s
loss of companionship, comfort, counsel, and support. Defendants’ motion to exclude his
testimony will therefore be denied. To ensure that the jury does not consider Dr. Sky’s opinions
and testimony for an improper purpose, the Court will consider a limiting instruction.
Motion to exclude opinions and testimony of Kucsma and Betz
Plaintiff designated Ms. Kucsma and Mr. Betz of Sobel Tinari Economics Group to
testify regarding their appraisal of economic loss Plaintiff has suffered due to the death of her
daughter, including: (1) household services; (2) care services to mother; (3) companionship
services to mother; (4) advice and counsel services to mother (“replacement services”); and (5)
loss of Lawson’s adjusted income. In their appraisal, Ms. Kucsma and Mr. Betz opine within a
reasonable degree of economic certainty that the total value of the past and future pecuniary
losses resulting from Lawson’s death amounts to between $6,736,968.00 and $7,100,218.00,
$1,026,082 of which represents lost adjusted income attributed to Lawson’s death. (Sobel
Report, Doc. No. 44-1 at 3, 17).
Defendants do not challenge Ms. Kucsma and Mr. Betz’s qualifications 2 or their
testimony concerning replacement services. Rather, Defendants object to the portion of Ms.

Ms. Kucsma is the Managing Director and Chief Economist at Sobel Tinari Economics Group. She has
worked and taught in the field of economics for over 30 years, specializing in the fields of applied
microeconomic theory, American economic history, macroeconomic theory and business cycles, and
banking structure and regulations. Ms. Kucsma has a master’s degree in Economics from Rutgers
University and a bachelor’s degree in Economics from Seton Hall University. (Kucsma Curriculum Vitae,
Doc. No. 51-3). Mr. Betz is a Senior Economist at Sobel Tinari. He has over 40 years of experience in the

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Kucsma and Mr. Betz’s expert opinions pertaining to Lawson’s lost adjusted income. Defendants
note that at the time of the accident, Lawson was disabled as a result of kidney disease and had
stopped working in 2014 due to her disability. (Sobel Report at 5-6). Defendants argue that Ms.
Kucsma and Mr. Betz’s assumption that Lawson would have received a kidney transplant and
returned to full-time employment by January 1, 2021 is not based on any supporting medical
opinions related to her kidney disease and disability status. As such, their opinions and testimony
regarding lost future income are not the product of reliable principles and methods and should be
excluded.
Plaintiff responds that challenges to the factual basis of an expert’s report goes to the
credibility of the testimony, not to its admissibility. See In re Viagra Prod. Liab. Litig., 572 F.
Supp. 2d 1071, 1077 (D. Minn. 2008). In further response, Plaintiff states that she anticipates
introducing evidence of her daughter’s kidney condition and pending transplant at trial. (See
Doc. Nos. 51-5, -6). Defendants reply that the medical records Plaintiff references do not state
with any degree of medical certainly that Lawson would have received a necessary kidney
transplant, that such a transplant would have been successful, or that such a transplant would
have improved her kidney disease to allow her to return to work until Plaintiff’s statistical date of
death.
As a general rule, the factual basis of an expert opinion goes to the credibility of the
testimony, not admissibility. See Bonner v. ISP Tech., Inc., 259 F.3d 924, 929 (8th Cir. 2002).
Defendants’ challenge to the factual basis for Ms. Kucsma and Mr. Betz’s opinions on lost
income should be tested by the adversary process with competing expert testimony and crossexamination, rather than excluded at the outset. Daubert, 509 U.S. at 596; Sphere Drake Ins. PLC
field of economics, specializing in macroeconomic theory, monetary policy, corporate finance, and
forensic economics. Mr. Betz has master’s degrees in Economics and Business Administration and
Finance from Fairleigh Dickinson University. (Betz Curriculum Vitae, Doc. No. 51-4).
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v. Trisko, 226 F.3d 951, 954-55 (8th Cir. 2000). Defendants’ motion to exclude their testimony
will be denied.
Accordingly,
IT IS HEREBY ORDERED that Defendants FedEx Freight, Inc. and David Stevens’
Joint Daubert Motion to Exclude the Testimony of Adam J. Sky, M.D. [41] is DENIED.
IT IS FURTHER ORDERED that FedEx Freight, Inc. and David Stevens’ Joint
Daubert Motion to Exclude the Portion of Testimony of Kristin K. Kucsma and Kenneth T. Betz
Regarding Lost Income [43] is DENIED.

Dated this 17th day of November, 2022.
________________________________

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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