Gonzalez-Perez v. Centerline Logistics Corp.

Filing 113

OPINION AND ORDER denying 58 Motion in Limine to Exclude Portions of the Life Care Plan Prepared by Dr. Gloydian Cruz Gomez; 59 Motion in Limine to Exclude the Testimony of Plaintiffs Economic Expert Dr. Kenneth McCoin; and 60 Motion in Limine to Exclude the Testimony of Ashley G. Lastrapes. See attached. Signed by Judge Gina R. Mendez-Miro on 1/6/2025.(GMN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

Andrés González-Pérez,
Civil. No. 22-1519 (GMM)

Plaintiff,
v.
Harley Marine Financing LLC et
al,
Defendant.

OPINION AND ORDER
This case is a tort dispute arising from an incident in which
Plaintiff Andrés González-Pérez (“Plaintiff” or “Mr. González”)
was allegedly injured in a fall from a negligently maintained
ladder that served as a point of entry to a vessel owned and
operated by Harley Marine Financing LLC (“HMF”) and Harley Marine
NY, Inc. (“HMNY,” collectively “Defendants” or “Harley Marine”).
Before the Court are Defendants’ motions in limine: Motion in
Limine to Exclude Portions of the Life Care Plan Prepared by Dr.
Gloydian Gruz Gómez (“Motion to Exclude Dr. Gruz Gómez”) (Docket
No. 58); Motion in Limine to Exclude the Testimony of Plaintiff’s
Economic

Expert

Dr.

Kenneth

McCoin

(“Motion

to

Exclude

Dr.

McCoin”)(Docket No. 59); Motion in Limine to Exclude the Testimony
of Ashley G. Lastrapes (“Motion to Exclude Dr. Lastrapes”) (Docket
No. 60). For the following reasons, the Motions are DENIED.

Civil No. 22-1519 (GMM)
Page -2I.

BACKGROUND

A. Motion in Limine to Exclude Portions of the Life Care Plan
Prepared by Dr. Gloydian Cruz Gómez (“Motion to Exclude Dr. Cruz
Gomez”)
Defendants ask the Court to exclude portions of the Life Care
Plan prepared by Dr. Cruz Gómez pursuant to Fed. R. Evid. 702,
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), and Kumho Tire
Company

v.

Carmichael,

526

U.S.

147

(1999),

because

“her

calculation of the cost of the medications that González will use
in the future is unreliable.” (Docket No. 58 at 2). In support of
its argument that those portions of the Life Care Plan are based
on an unreliable foundation, Harley Marine asserts that its own
expert disagrees with Dr. Cruz Gómez’s assessment that Plaintiff
will

need

to

use

certain

medications

like

NSAID,

opioids,

antidepressants and Zanaflex for the next twenty-five (25) years
of his life. See (id. at 6-8). In response, Plaintiff asserts that
Dr. Cruz Gómez’s Life Care Plan is based on reliable foundations
and methods because she relied on “Plaintiff’s medical records,
consultations

with

treating

physicians,

and

accepted

medical

guidelines,” (Docket No. 76 at 5), and applied “well-established
principles in life care planning, and she provided a rational basis
for her estimates.” (Id. at 9).

Civil No. 22-1519 (GMM)
Page -3B. Motion in Limine to Exclude the Testimony of Plaintiff’s
Economic Expert Dr. Kenneth McCoin (“Motion to Exclude Dr.
McCoin”)
Harley

Marine

argues

that

Dr.

McCoin’s

opinion

on

Mr.

González’s earning capacity should be excluded from trial because
the expert does not rely on sufficient facts and data, rendering
the analysis unreliable. (Docket No. 59 at 5). Specifically,
Defendants argue Dr. McCoin did not rely on reliable data because
he did not consider Plaintiff’s post-injury earnings, (id. at 67), and incorrectly relied on an assumption that wages grow over
time when the record did not provide evidence of such a conclusion,
(id.

at

8-9).

Conversely,

Plaintiff

argues

Dr.

McCoin

appropriately relied on his tax returns and employment contract as
valid, sufficient, and reasonable basis to estimate his earning
capacity in the absence of his injuries. See (Docket No. 75 at 5,
7-8). Any income Mr. González made after his injury was irrelevant
to Dr. McCoin’s calculation earning capacity. See (id.). Plaintiff
also argues that Dr. McCoin’s application of a “societal wage
growth”

factor

is

a

recognized

method

of

forecasting

future

earnings capacity. See (id. at 9-10).
C. Motion in Limine to Exclude the Testimony of Ashley G. Lastrapes
(“Motion to Exclude Dr. Lastrapes”)
Harley

Marine

asks

vocational

assessment

sufficient

factual

the

for

basis

court

Mr.
to

to

González
opine

exclude
because

about

Dr.

Lastrapes’

she

Plaintiff’s

“lacks

a

earning

capacity[,]” in violation of Fed. R. Evid. 702. (Docket No. 60).

Civil No. 22-1519 (GMM)
Page -4Plaintiff argues that although Dr. Lastrapes issued a “guarded”
assessment

of

his

post-injury

earning

capacity,

her

report

contained several other opinions about his capacity to work which
are relevant and helpful to the trier of fact: (a) opinions on the
Life Care Plan rendered by Dr. Gloydian Cruz Gómez and Plaintiff’s
physical limitations and decreased ability to perform activities
of daily living and the resulting loss of vocational capacities
and opportunities; (b) the effect that a future surgery predicted
by Dr. Cruz-Gómez would have on Plaintiff’s earning capacity; and
(c) Plaintiff’s inability to travel for work related tasks and the
resulting economic losses. See (Docket No. 77 at 9-10).
II.

APPLICABLE LAW

A. Federal Rule of Evidence 702
Fed. R. Evid. 702 controls the admissibility of expert witness
testimony. See Crow v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007)
(“The touchstone for the admission of expert testimony in federal
court litigation is Federal Rule of Evidence 702.”). The Rule
dictates:
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;

Civil No. 22-1519 (GMM)
Page -5(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.
Fed. R. Evid. 702 assigns a “gatekeeping role for the judge”
to ensure that the expert is “sufficiently qualified to assist the
trier of fact” and “that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Daubert,
509 U.S. at 597; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14749 (1999) (holding that Daubert applies to all expert testimony).
A trial court “must have considerable leeway in deciding in a
particular case how to go about determining whether particular
expert testimony is reliable.” Kumho Tire Co., 526 U.S. at 152. To
aid trial judges in their role as gatekeepers, the Daubert Court
set forth several factors that may be taken into consideration,
none of which are determinative: (i) whether a theory or technique
can and has been tested; (ii) whether the theory or technique has
been subjected to peer review and publication; (iii) whether the
particular scientific technique has a known or potential rate of
error; and (iv) the “general acceptance” of a theory or technique.
See Daubert, 509 U.S. at 593-94.
To determine that an expert’s evidence rests of reliable
foundation the district court considers whether “the testimony is
based on sufficient facts or data”; whether “the testimony is the

Civil No. 22-1519 (GMM)
Page -6product of reliable principles and methods”; and whether “the
expert has reliably applied the principles and methods to the facts
of the case.” Smith v. Jenkins, 732 F.3d 51 (1st Cir. 2013) (citing
Fed. R. Evid. 702). Where, as here, the factual basis of an
expert's testimony is called into question, the district court
must determine whether the testimony has “a reliable basis” in
light of the knowledge and experience of the relevant discipline.
See Kumho Tire Co., 526 U.S. at 148. Thus, “nothing in either
Daubert or the Federal Rules of Evidence requires a district court
to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert. A court may conclude that there
is simply too great an analytical gap between the data and the
opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997).
Note, however, the difference between “unreliable” support
and “insufficient” support for an expert witness’ conclusion. See
Martínez v. United States, 33 F.4th 20, 24 (1st Cir. 2022) (quoting
Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22
(1st Cir. 2011)). Whether the underpinning of an expert’s opinion
is insufficient is “a matter affecting the weight and credibility
of the testimony – a question to be resolved by the jury.” Id.
(quoting Milward, 639 F.3d at 22). Conversely, “trial judges may
evaluate data offered to support an expert's bottom-line opinions
to determine if that data provides adequate support to mark the

Civil No. 22-1519 (GMM)
Page -7expert’s testimony as reliable.” Milward, 639 F.3d at 15 (quoting
Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d
77, 81 (1st Cir. 1998)). “In a motion to exclude pursuant to
Daubert, the burden on the party who proffers expert testimony is
not to prove that an expert's conclusion is correct but rather
that the expert reached their conclusion in a scientifically sound
and methodologically reliable way.” Id. at 85.
Ultimately, Rule 702 is generally interpreted liberally in
favor of the admission of expert testimony. See Martínez, 33 F4th
at 24 (quoting Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st
Cir. 2006)).
To ensure reliability and intellectual rigor, experts “must
be able to produce a written report or testimony supported by an
accepted methodology that is based on substantial scientific,
technical, or other specialized knowledge.” Figueroa v. Simplicity
Plan de Puerto Rico, 267 F.Supp.2d 161, 164 (D.P.R. 2003). “Failure
to provide a testimony or a report detailing the basis for the
expert's opinion in a comprehensive scientific manner can cause
the

expert

witness

and

his

report

to

be

eliminated

from

trial.” Id. (citing Justo Arenas & Carol M. Romey, Professional
Judgment Standard and Losing Games for Psychology, Experts and the
Courts, 68 Rev. Jur. U.P.R. 159, 180 (1999)).

Civil No. 22-1519 (GMM)
Page -8III. ANALYSIS
A. Dr. Cruz Gómez
As Harley Marine concedes that Dr. Cruz-Gómez’s is qualified
to

render

the

opinions

included

in

her

report

and

that

the

methodology used in reaching said opinions meets the standards of
Rule 702, Daubert and its progeny, the Court need only address
whether the experts’ opinions on future medications is based on
reliable foundations. It finds that they do.
Within the Life Care Plan, Dr. Cruz Gómez explains that in
drafting it, she “consider[ed] and utilize[d] all past medical,
social, psychological, educational, vocational, and rehabilitation
data to the extent they are available and applicable,” (Docket No.
76-1

at

8),

including

the

records

of

medication

previously

prescribed by Mr. González’s treating physician, (Docket No. 76-2
at

35:1-37:14).

From

this

information

and

“based

upon

[her]

education, training and professional experience as a practicing
physician, Board Certified Physical Medicine & Rehabilitation
Specialist and Certified Life Care Planner[,]”, she formulated the
future medication requirements in the Life Care Plan. See (Docket
No. 76-1 at 26). Dr. Cruz Gómez’s opinions on future medications
also apply a standard of “reasonable degree of medical probability”
meaning that, from a medical perspective, the Mr. González will
“more likely than not” require the use of medications included in
the Life Care Plan. See (Docket No. 76-2 at 16). Dr. Cruz Gómez’s

Civil No. 22-1519 (GMM)
Page -9Life Care Plan is based on a sufficient facts and data and is the
product of reliable principles and methods as required by Fed. R.
Evid. 702
Harley Marine objects only to the section of the report where
Dr.

Cruz

Gómez

opines

on

the

costs

of

Plaintiff’s

future

medications and is based solely on the argument that “Defendants’
expert, Dr. Manuel Antonio Colón García De la Noceda, disagrees
with Dr. Cruz’ assessment regarding Plaintiff’s need to use NSAID,
Zanaflex, Ultram and Pamelor.” (Docket No. 58 at 6). Defendants’
experts’ competing opinion is the sole basis for their challenge
to the factual basis of Dr. Cruz Gómez’s opinions on Plaintiff’s
future medications. Thus, their challenge goes to credibility of
the expert, not the reliability of her opinions. See Milward v.
Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22 (1st Cir. 2011)
(“when the factual underpinning of an expert is weak, it is a
matter affecting the weight and credibility of the testimony – a
question to be resolved by the jury.”) (quoting United States v.
Vargas, 471 F.3d 255, 264 (1st Cir. 2006)). The Motion to Exclude
Dr. Cruz Gómez is DENIED.
B. Dr. Kenneth McCoin
Harley Marine claims Dr. McCoin’s opinions and testimony
should be excluded from trial pursuant to Fed. R. Evid 702 because
he did not rely on sufficient facts and data rendering his expert

Civil No. 22-1519 (GMM)
Page -10testimony “unreliable and untrustworthy.” (Docket No. 59). The
Court disagrees.
First, the Court notes that Defendant appears to confuse the
“earning

capacity”

with

“lost

earning

capacity.”

Plaintiff

explains the goal of Dr. McCoin’s testimony is to “offer what
Plaintiff’s postinjury economic capacity would have been in the
absence of the incident,” after which the jury will be tasked with
“computing his actual loss of income because of the incident.”
(Docket No. 75 at 5). Still, Harley Marine demonstrates that
confusion about the expert’s role, concluding that “[t]he facts
show that Plaintiff did not meet his burden of proof since Dr.
McCoin

failed

information
capacity,
González’s

to

such

to

consider

determine
as

extremely

Plaintiff’s

medical

post-employment

relevant
alleged

information,
history.”

and

loss

vocational

(Docket

No.

pertinent
of

earning

data,

and

82

4)

at

(emphasis added). As Dr. McCoin repeatedly states in his deposition
and as Plaintiff clarifies in his arguments, Dr. McCoin was not
asked to make a determination of lost earning capacity, but to
provide an estimate of what his earning capacity would have been,
but for the accident, from which the jury can make a lost earning
capacity determination. This is the correct lens through which to
evaluate the factual bases of Dr. McCoin’s opinions.
Next, the Court has determined that although Dr. McCoin
assumed Plaintiff was not working after his accident, that did not

Civil No. 22-1519 (GMM)
Page -11impact his analysis of his earning capacity, and thus cannot agree
that this assumption rendered his opinion unreliable. Dr. McCoin
was retained to assess Plaintiff’s earning capacity in the absence
of the injury at the center of this case. As such, whether the
Plaintiff returned to work after his injuries was not relevant to
Mr. McCoin’s determination of his “earning capacity” even if that
information will be valuable to a jury to determine “lost earning
capacity.” The facts that Dr. McCoin did rely on to assess the Mr.
González’ earning capacity, namely his tax returns from 2019-2021
and an independent contractor agreement with PETROCARE Marine
Consultants, Inc., provide a reliable and sufficient basis to apply
the methods for calculating earning capacity as described in his
report.1
Lastly, Dr. McCoin’s application of a “societal wage growth
factor”

in

his

earning

capacity

analysis

does

not

make

his

conclusions unreliable. Dr. McCoin explained at deposition what a
“societal wage growth factor” is and the purpose for including it
in his analysis: “Those are wage growth that redounds to employees

1 “Earning

capacity measures a worker’s net compensation earned over the worker’s
lifetime. Net compensation is defined as wages (cash income), plus fringe
benefits (noncash income), less work-related expenses, less income and social
security taxes. Net compensation is then adjusted for the probability that a
person will work over the course of a worker’s lifetime (by applying a worklife
statistic). This adjusted net compensation is often referred to as expected net
compensation. Future compensation (net and expected) is expressed in “real”
terms, that is in dollars that remain constant purchasing power over time.
Expected future net compensation is reduced to its present-day value by
“discounting” at the expected future real rate of interest or in the parlance
of the Courts: the “below-market discount rate.” (Docket No. 74-2 at 1).

Civil No. 22-1519 (GMM)
Page -12due to the increase in general labor productivity. And you get it
whether you want it or not; in other words, there's a small, slight
increase in real wage, real compensation over time […] It's about
eight-tenths of a percent. Some years, it's positive; some years,
it's negative, but it's a slight wage growth. And that's just due
to the fact that in labor forces, the labor can do more work per
unit of labor input.” (Docket No 75-1 at 24:21-25:5).
The

Supreme

Court

in

Pfeifer

acknowledged

that

future

earnings cannot be calculated with certainty. Jones & Laughlin
Steel Corporation v. Pfeifer, 462 U.S. 523, 546, 103 S.Ct. 2541,
76 L.Ed.2d 768 (1983) (“[B]y its very nature the calculation of an
award for lost earnings must be a rough approximation.”). Even so,
Pfeifer instructs courts to consider “societal factors” which
contributes to “wages of workers increase over time.” Id. at 536
(finding that any award for lost wages should be reduced for taxes
and probability of unemployment and adjusted for wage growth and
present value). The Court does not find Dr. McCoin’s well-reasoned
implementation of a “societal wage factor” in his earning capacity
calculation to be overly speculative or unreliable as to render
the opinions inadmissible.
The Court is not convinced by Harley Marine’s argument that
Plaintiff’s tax returns showing his earnings fluctuated between
2019 and 2021 proscribe Dr. McCoin from having a reliable basis to
apply a societal wage growth factor to the earnings capacity

Civil No. 22-1519 (GMM)
Page -13analysis. As Dr. McCoin explained in his deposition, even selfemployed individuals experience market changes in wages: “[Wage]
increases in a secular, long-term sense, not very, very much. But
if he was not happy with his present employer, walk across the
street and get another job. In other words, you can't. . .business
cannot ignore economic forces. You'll lose labor.” (Docket No. 751 at 25:23-26:2). For the Court, a fluctuation of earnings over
three years does not seem to be sufficient basis to discredit the
expert’s

methodologies.

Thus,

the

Court

cannot

conclude

that

exclusion of Dr. McCoin’s earning capacity analysis under Fed. R.
Evid. 702 is warranted. The Motion to Exclude Dr. McCoin is DENIED.
C. Dr. Ashley Lastrapes
Harley

Marine

does

not

challenge

Dr.

Lastrapes’

qualifications or methodology, but seeks to exclude the expert’s
testimony because “she lacks a sufficient factual basis to opine
about Plaintiff’s earning capacity[,]” and thus does not satisfy
the requirement of Fed. R. Evid 702(b) that an expert’s testimony
must be based on “sufficient facts or data.” (Docket No. 60 at 5).
The Court denies the request.
Dr. Lastrapes was asked to “conduct a vocational assessment
to determine factors that relate to Mr. González-Perez's postinjury

earning

capacity

related

to

his

injury

sustained

on

05/10/2022.” (Docket No. 77-2 at 3). To do so, she considered

Civil No. 22-1519 (GMM)
Page -14Plaintiff’s medical records, employment records, litigation case
materials, the expert reports by Dr. Cruz Gómez and Dr. McCoin,
and conducted a clinical interview with Mr. González.
On

the

issue

of

“vocational

prognosis,”

Dr.

See (id.).
Lastrapes

concluded it was “guarded,” (id. at 6), meaning that she needed “a
little bit more information to make a definitive opinion about
future wage loss,” (Docket No. 60 at 36:21-23). This was only one
of several opinions Dr. Lastrapes issued on the Mr. González’ postinjury earning capacity. She also discussed “(a) opinions on the
life care plan rendered by Dr. Gloydian Cruz-Gómez and Plaintiff’s
physical limitations and decreased ability to perform activities
of daily living and the resulting loss of vocational capacities
and opportunities; (b) the effect that a future surgery predicted
by Dr. Cruz-Gómez would have on Plaintiff’s earning capacity; and
(c) Plaintiff’s inability to travel for work related tasks and the
resulting economic losses.” (Docket No. 77 at 2).
Although

Dr.

Lastrapes

provided

several

opinions

in

her

report, Harley Marine would nonetheless have the Court exclude her
entire testimony because she failed to issue a conclusive opinion
on Plaintiff’s vocational prognosis without further information.
The

Court

will

not

punish

the

Plaintiff

because

his

expert

presented sound opinions within the scope of her task only where
a reliable basis existed. Defendant will have the opportunity to
examine the credibility of Dr. Lastrapes and her opinions through

Civil No. 22-1519 (GMM)
Page -15“the traditional and appropriate means of attacking shaky but
admissible evidence[,]” namely, “[v]igorous cross-examination” and
“presentation of contrary evidence[.]” Daubert, 509 U.S. at 596.
IV.

CONCLUSION

For the foregoing reasons:
Motion in Limine to Exclude Portions of the Life Care Plan
Prepared by Dr. Gloydian Cruz Gómez filed at Docket No. 58 is
DENIED;
Motion in Limine to Exclude the Testimony of Plaintiff’s
Economic Expert Dr. Kenneth McCoin filed at Docket No. 59 is
DENIED; and
Motion in Limine to Exclude the Testimony of Ashley G.
Lastrapes filed at Docket No. 60 is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, January 6, 2025.

s/ Gina R. Méndez-Miró
GINA R. MÉNDEZ-MIRÓ
United States District Judge