Davis et al v. Bamford, Inc. et al

Filing 155

MEMORANDUM AND ORDER - IT IS ORDERED: Defendants' motion to exclude or limit the expert testimony of Dr. Shannon Shipp (Filing No. 105) is granted in part, to the extent that Dr. Shipp will not refer to a specific future rate of inflation in his testimony or in his expert report. The Court reserves ruling on all remaining motions in limine and will address each issue as it may arise during the course of the trial. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BOBBY DAVIS, BRENDA DAVIS,
and GEOFFREY DAVIS,

)
)
)
Plaintiffs,
)
)
v.
)
)
BAMFORD, INC., and
)
NANCY MARET PACKER, Personal )
Representative of the ESTATE )
OF MICHAEL PACKER,
)
)
Defendants.
)
______________________________)

8:11CV69

MEMORANDUM AND ORDER

This matter is before the Court on several motions in
limine offered prior to trial.
the motions on June 11, 2012.

The Court heard oral argument on
After reviewing the motions,

briefs, evidentiary record, oral arguments, and applicable law,
the Court rules as follows.
Plaintiffs filed two motions requesting the exclusion
of certain evidence and testimony of potential witnesses (Filing
Nos. 95 and 96).

The Court reserves ruling on the motions at

this time and will address each issue as it may arise during the
course of the trial.
Defendants filed four motions also requesting the
exclusion of certain evidence and testimony of potential
witnesses (Filing Nos. 99, 102, 105, and 108).

With regard to

Filing Nos. 99, 102, and 108, the Court reserves ruling on the
motions and will address each issue as it may arise during the

course of the trial.

However, the Court will address Filing No.

105 at this time.
Defendants filed a motion to exclude or limit the
expert testimony of Dr. Shannon Shipp (Filing No. 105, with
brief, Filing No. 106, and index of evidence, Filing No. 107).
Plaintiffs filed a responsive brief with index of evidence
(Filing Nos. 133 and 134), to which defendants replied (Filing
No. 146).

Shannon Shipp, Ph.D., CEA (Certified Earnings

Analyst), is plaintiffs’ expert designated to testify as to
economic damages suffered by plaintiff Bobby Davis.

Dr. Shipp

created an initial report dated July 22, 2010 (Ex. 2, Filing No.
107), a supplemental report dated November 7, 2011 (Ex. 3, Filing
No. 107), and also gave deposition testimony (Ex. 4, Filing No.
107).

Defendants claim that Dr. Shipp includes in his reports

and testimony specific information about future inflation and its
effects on Bobby Davis’ income and his future medical care costs.
Defendants state that this is improper.
Defendants cite the Eighth Circuit’s opinions as to the
use of expert witness testimony on future inflation rates in
Nebraska cases:

“[W]e have noted that it may be an abuse of

discretion for the trial court to admit expert testimony
predicting future inflation at a specified rate ‘not only because
it is speculative and uncertain, but because it opens up a myriad
of collateral and remote considerations.’”

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Taenzler v.

Burlington N., 608 F.2d 796, 801 (8th Cir. 1979) (quoting Riha v.
Jasper Blackburn Corp., 516 F.2d 840, 844 n.4 (8th Cir. 1975)).
In Taenzler, the Eighth Circuit did recommend that the
jury consider the effects of inflation, but only generally: “This
court has not required the trier of fact . . . to ignore the
prospect of future inflation in determining damages for lost
earning capacity.

On the contrary, recognizing the compensatory

purpose of damage awards . . . and the significance of
inflationary factors in setting just compensation, this court has
indicated that it may be error for the trial court to instruct
the jury not to consider the prospect of future inflation in
determining damages.”

Taenzler, 608 F.2d at 800.

Plaintiffs claim that case law has progressed since the
time of Riha and Taenzler.
Nebraska Supreme Court:

Plaintiffs cite a 2007 case from the

“Present value must be determined

because the money awarded can be invested and earn interest.

A

present award should also consider the fact that inflation will
increase the expenses incurred by the plaintiff.

Although the

plaintiff can earn interest, the value of the dollar will decline
because of inflation.”

Fickle v. State, 274 Neb. 267, 270-71,

759 N.W.2d 113, 117 (2007) (citing G. Michael Fenner, About
Present Cash Value, 18 Creighton L. Rev. 305 (1985).

In oral

argument, plaintiffs cited the commentary to Nebraska civil jury
instruction 4.13, addressing “Present Cash Value,” which also
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quotes from Fickle.

However, Fickle does not address the issue

at hand, which is whether expert testimony should be admitted
subscribing to a particular future rate of inflation.

Instead,

Fickle seems to stand for the proposition that inflation should
be considered when making a damages award, a proposition with
which the Eighth Circuit explicitly agrees in Taenzler.

Fickle

does not directly support the admission of expert testimony as to
what a particular inflation rate in the future might be.1
Plaintiffs also cite a later Eighth Circuit case out of
the Eastern District of Missouri where the court states, “We note
that the law on the admissibility of expert evidence of future
rates of inflation is not static.”

McGowne v. Challenge-Cook

Bros., Inc., 672 F.2d 652, 668 (8th Cir. 1982).

However, in that

same case, the Eighth Circuit quotes Taenzler, stating, “In
Taenzler v. Burlington Northern, we noted: ‘In cases where we
have applied state law, we have held expert testimony directly
predicting some future inflation rate admissible in this kind of
case under Iowa law, but inadmissible under Nebraska law and

1

It should be noted that Professor Fenner has speculated
that Riha, on which Taenzler is based, “apparently is wrong in
part about how Nebraska might handle inflation.” Fenner, supra,
at 312. Professor Fenner states that the Nebraska Supreme Court
“has implicitly approved expert future-damage computations which
factor in projected rates of inflation.” Fenner, supra, at 310
(citing Ott v. Frank, 202 Neb. 820, 823-24, 277 N.W.2d 251, 253
(1979)). Because Taenzler was decided after Ott, the Court
assumes that the Eighth Circuit considered the case and declined
to act on only an implicit approval of such expert testimony.
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under Minnesota law.”

McGowne, 672 F.2d at 667 (quoting

Taenzler, 608 F.2d at 799 n.6) (internal citations omitted).
Thus the Eighth Circuit acknowledged that while though the law
may be changing over time, such expert testimony is inadmissible
in Nebraska.
Plaintiffs have not presented the Court with any
authority from either the Eighth Circuit or the Nebraska Supreme
Court that explicitly refutes Taenzler on this point.

For that

reason, the Court will grant defendants’ motion in part and will
exclude from the testimony and expert report of Dr. Shipp any
reference to a projected, specific future inflation rate.
Accordingly,
IT IS ORDERED:
1)

Defendants’ motion to exclude or limit the expert

testimony of Dr. Shannon Shipp (Filing No. 105) is granted in
part, to the extent that Dr. Shipp will not refer to a specific
future rate of inflation in his testimony or in his expert
report; and
2)

The Court reserves ruling on all remaining motions

in limine and will address each issue as it may arise during the
course of the trial.
DATED this 18th day of June, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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