TOOR et al v. HOMEGOODS, INC. et al
Filing
27
OPINION filed. Signed by Judge Anne E. Thompson on 2/15/2018. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RECEIVED
FEB 1 5 2018
ALI TOOR and SARAH TOOR,
AT8:30
_M
WILLIAM T. WALSH
CLERK
Plaintiffs;
v.
Civ. No. 16-1132
HOMEGOODS, INC., THE TJX
COMPANIES, INC., et al.,
OPINION
Defendants.
THOMPSON. U.S.D.J.
INTRODUCTION
This matter comes before the Court upon the Motion to Preclude the Testimony of
Anthony M. Gamboa by Defendants HomeGoods, Inc. and TJX Companies, Inc. (collectively,
"Defendants"). (ECF No. 20.) Plaintiffs Ali Toor and Sarah Toor (collectively, "Plaintiffs")
oppose and cross-move to Preclude the Testimony of Chad Staller. (ECF No. 22, 23.)
Defendants' Motion has been decided pursuant to the papers and oral argument on February 13,
2018, and for the reasons stated below, Defendants' Motion is granted.
BACKGROUND
This case arises out of an injury Mr. Toor allegedly sustained while shopping at
Defendants' HomeGoods store in Delran, New Jersey. (Compl. ~ 1, Ex. A, ECF No. 1-2.) Mr.
Toor was struck in the head and injured when a metal display shelf collapsed. (Id.
~
5.) Mr.
Toor sought medical attention in the following days. Doctors Gregory J. O'Shanick, M.D. and
1
Jeffery S. Kruetzer, Ph.D. later diagnosed Mr. Toor with traumatic brain injury and mild
neurocognitive disorder. (Defs.' Mot. at 7, ECF No. 20; Pls.' Opp'n at 2, ECF No. 23; Exs. A,
B, ECF Nos. 23-2, 23-3.)
On January 15, 2016, Plaintiffs filed this lawsuit in the Superior Court of New Jersey,
Law Division, Mercer County, pleading two counts of negligence. (See generally Compl.)
Defendants timely removed to this Court. (ECF No. 1.) Defendants have conceded liability, and
the remaining issue for trial is what damages, if any, Plaintiffs sustained. Defendants moved to
preclude the testimony of Plaintiffs' expert Anthony Gamboa. (ECF No. 20.) Plaintiffs opposed
and cross-moved to preclude the testimony of Defendants' expert Chad Staller (ECF Nos. 22,
23). The Court heard oral argument on these motions on February 13, 2018. (ECF No. 26.)
LEGAL STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993) (establishing the rule for expert
scientific testimony); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)
(extending Daubert to all expert testimony, not only to scientific expertise). "Under Daubert,
courts must address 'a trilogy of restrictions' before permitting the admission of expert
testimony: qualification, reliability, and fit." Mahmood v. Narciso, 549 F. App'x 99, 102 (3d
Cir. 2013) (quoting Schneider ex rel. Schneider v. Fried, 230 F.3d 396, 404 (3d Cir. 2003)).
"First, the expert must be qualified as an expert based on a broad range of specialized
knowledge, skill or training." Jama v. Esmor Corr. Servs., Inc., 2007 WL 1847385, at *2
(D.N.J. June 25, 2007) (citing In re Paoli R.R. Yard PCB Litig. [In re Paoli], 35 F.3d 717, 742
(3d Cir. 1994)). Second, "the process or technique the expert used in formulating the opinion
2
[must be] reliable." In re Paoli, 35 F.3d at 742. Possible considerations when determining
reliability include:
(1) whether a method consists of a testable hypothesis; (2) whether the method
has been subject to peer review; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controUing the technique's operation; (5)
whether the method is generally accepted; (6) the relationship of the technique to
methods which have been established to be reliable; (7) the qualifications of the
expert witness testifying based on the methodology; and (8) the non-judicial uses
to which the method has been put.
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting In re Paoli,
35 F.3d at 742 n.8 (noting factors Daubert has "deemed important to include")). This list
provides ''useful, though non-exclusive tools for determining the reliability of expert testimony."
Henry v. St. Croix Alumina, LLC, 572 F. App'x 114, 118 (3d Cir. 2014).
Finally, the requirement of fit is one ofrelevance. See Gen. Elec. Co. v. Joiner, 522 U.S.
136, 151 (1997) (Breyer, J., concurring). "In assessing whether an expert's proposed testimony
'fits,' we are asking ''whether [the] expert testimony proffered ... is sufficiently tied to the facts
of the case that it will aid the jury in resolving a factual dispute.'" United States v.
Sch~IJ~
602
F.3d 152, 173 (3d Cir. 2010) (quoting Daubert, 509 U.S. at 591) (alterations in original). The
testimony offered must provide "knowledge/or purposes of the case." In re Paoli, 35 F.2d at
743 (emphasis in original). While Rule 702 emb:r:aces a "liberal standard of admissibility,"
Downing, 735 F.2d at 1230, the Daubert requirements help perform an important gatekeeping
role, Kuhmo Tire Co., Ltd., 526 U.S. at 152; In re Paoli, 35 F.3d at 748.
DISCUSSION
Plaintiffs retained expert Anthony M. Gamboa, Jr., Ph.D. ("Dr. Gamboa") to perform a
vocational economic assessment as to Mr. Toor's "lost capacity to perform work and earn money
as a result of injury sustained on April 27, 2014." (Vocational Economic Assessment for Ali
Toor at 3, Ex. A, ECF No. 20-1.) Dr. Gamboa reviewed a complete file of Mr. Toor's past
3
earnings, employment records and evaluations, medical records, and the medical examinations of
Drs. O'Shanick and Kreutzer; a colleague of Dr. Gamboa's conducted a telephonic interview
with Mr. Toor. Dr. Gamboa's report is crafted based on statistical data from the U.S. Census
Buteau American Community Survey ("ACS") from 2010 to 2014. (Defs.' Mot. at 5; Ex. D,
ECF No. 20-4.) Based on this data, Dr. Gamboa created tables assessing the work life
probability "for a statistical cohort of similar persons" to Mr. Toor, both pre- and post-injury.ยท
(Pis.' Opp'n at 3.) Dr. Gamboa concluded that Mr. Toor will suffer a loss of$1,684,151
($1,936,151 with a tax adjustment (see Ex. B, ECF No. 20-2)) from this accident due to a 12.9
year decrease in his work life expectancy, from 29.1 years to 16.2 years. (Vocational Economic
Assessment for Ali Toor at 4-5.) Defendants attack Dr. Gamboa's report on the fit and
reliability requirements of Daubert.
The Court first turns to fit: whether Dr. Gamboa's report and proffered testimony is a
reasonable measure of post-injury work life expectancy, as tailored to Mr. Toor. The disability
questions in the ACS are generalized, ambiguous, yes or no questions. Question 17 asks,
"Because of a physical, mental, or emotional condition, does this person have serious difficulty
concentrating, remembering, or making decisions?" (ACS at 9, Ex. E, ECF No. 20-5.) Subparts
of question 17 and question 18 then ask whether this "physical, mental, or emotional condition"
limits the individual's everyday activity. (Id.) These questions do not parse between types of
impairments or causes of disability, and there is no objective measure for individuals answering
the survey to determine what qualifies as a condition or limitation. (See Defs.' Mot. at 16.)
The employment questions are similarly imprecise. Question 33 asks whether someone
was temporarily absent from a job, with the option "Yes, on vacation, temporary illness,
maternity leave, other family/personal reasons, bad weather, etc.," or ''No." (ACS at 10.) Other
4
questions ask how long the person has worked in recent time periods. (Id.) As Defendants note,
responses to these questions do not "go to the issue of future employment," and "the answer does
not give any infonnation about the reason for why someone is not working." (Defs.' Mot. at 11.)
Moreover, longitudinal data would better assist the jury in detennining Mr. Toor's future work
life expectancy. (See id. at 15 ("Dr. Gamboa makes predictions about how long Mr. Toor will
work based upon ... one year's worth of data .... Logically, the ACS data cannot predict
future work life data, as the ACS does not follow individuals who respond to a given year's
survey across additional years.").)
Dr. Gamboa's proposed testimony based on the ACS is not a reasonable measure of
damages for Mr. Toor and his injury. Mr. Toor continues to work as a software engineer, has
lost no time at his job, and has received a promotion. Generalized community data is
insufficiently tailored to these facts
as presented, and therefore, will not assist the jury in the
detennination of a damages award. Having found this report is riot an appropriate fit for this
case due to its irrelevance and lack of value to the jury, the Court need not address whether Dr.
Gamboa is qualified or whether Dr. Gamboa's ACS methodology is reliable. (See Defs.' Mot. at
19-22; see also Vocational Economic Assessment for Ali Toor at 14, 16 (report discussing how
it meets the evidentiary Daubert and Khumo requirements).) On balance, Dr. Gamboa's
testimony should not be admissible at the trial of this case.
CONCLUSION
For the reasons stated above, Defendant's Motion to preclude the testimony of Dr.
Gamboa is granted. An accompanying Order will follow.
1CZ5
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?